Secretary of Labor on behalf of George Roy Logan v. Bright Coal Company, Inc. and Jack Collins (Commission decision, November 8, 1984)

Plain-English summary

George Roy Logan claimed Bright Coal and supervisor Jack Collins fired him after he refused unsafe work. The judge dismissed the complaint after limiting the Secretary's informer privilege to people who gave information unfavorable to the company. The Commission rejected that limit: a person's status as an informer does not depend on whether the information helped or hurt the operator. It reversed the judge's ruling and ordered an in-camera review of withheld materials, followed by a relevance and privilege analysis and, if needed, a balance of the parties' interests. The Commission remanded for further proceedings on the discrimination complaint; it did not decide whether Logan had been unlawfully fired.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)(2), Mine Act discrimination proceedings.
• Outcome: Judge's dismissal reversed and case remanded for consideration of the withheld material and the merits.
• Key point: The informer privilege can protect a source regardless of whether the source's information favored the operator.

Full text (FMSHRC public release)

CCASE:
GEORGE LOGAN (MSHA) V. BRIGHT COAL & JACK COLLINS DDATE: 19841108 TTEXT: FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. November 8, 1984 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) on behalf of GEORGE ROY LOGAN

v. Docket No. KENT 81-162-D

BRIGHT COAL COMPANY, INC. and
JACK COLLINS

DECISION
This proceeding involves a discrimination complaint brought by the Secretary of Labor on behalf of George Roy Logan under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. § 815(c)(2). The Secretary alleges that Logan was unlawfully discharged by Bright Coal Company, Inc. ("Bright") and, individually, by his former supervisor, Jack Collins. The basic legal claim underlying the complaint is that on or about January 19, 1981, Logan engaged in safety activity protected by the Mine Act by refusing to set safety posts in an area of broken, unsupported, dangerous top, and that Logan was discharged by Collins for engaging in such activity. The administrative law judge held in favor of Bright and Collins, and dismissed the Secretary's complaint. 4 FMSHRC 1343 (July 1982)(ALJ). For the reasons that follow, we reverse and remand with instructions for further proceedings. I. The primary issue before us arose in the discovery phase of this litigation. Respondents Bright and Collins sought production from the Secretary of all statements given to the Secretary by Logan and others, as well as the Secretary's records relating to his investigation of the case. Respondents filed a motion to compel production of the documents on the grounds that they were essential to the preparation of respondents' defense, and that the Secretary had not shown that the information was protected from disclosure. The Secretary maintained that all statements made by Logan had been provided to respondents during the course of Logan's deposition. The Secretary declined to produce the other requested documents asserting that they "would reveal or tend to reveal the identity of informers who may have given information to the Secretary," and that such information
~2521
was protected pursuant to the informer's privilege, the attorney work product privilege, and the executive privilege. 1/ The Secretary opposed respondents' motion to compel production, stating that the motion was unsupported, inasmuch as respondents failed to demonstrate that the documents requested were essential to preparation of their case, the existence of extraordinary circumstances requiring disclosure, or their inability to obtain elsewhere the information sought. Respondents filed an amended motion to compel production stating that their need for the requested documents was "apparent," that the Secretary had made no showing that the documents were privileged, that certain of the documents bear upon the integrity of the investigation conducted by the Mine Safety and Health Administration ("MSHA"), and that the Secretary's fear of possible economic reprisal by the operator against miners who had given statements was moot because the operator had ceased operations. Respondents sought an order from the judge compelling the Secretary to comply with their amended request for production including, among other things, "all documents and witnesses, not expected to be introduced, which or who tend to disprove the allegations of the applicant." Such was the procedural and legal posture of the question of privilege as it was placed before the administrative law judge. The judge noted that the provisions of Commission Rule 59, 29 C.F.R.
§ 2700.59, relating to disclosure of miner witnesses and informants, must be observed. 2/ The judge ruled that an "informer" is one who provides MSHA with information detrimental to an operator. According to the judge, a person who gives the Secretary information favorable to an operator is not an informer and that person's identity must be disclosed by the Secretary upon request. The judge also ruled that all statements in the Secretary's possession which tend to disprove the allegations of the discrimination complaint were to be disclosed.
____
1/ It is apparent that the Secretary's underlying motive for invoking the executive and attorney work product privileges is to shield the identity of informers. Accordingly, this case is resolved straight forwardly by addressing the issue presented solely in the context of the informer's privilege. Should the Secretary determine that continued litigation of the claimed attorney work product privilege is necessary in this case, he may reassert and further support it before the administrative law judge below. The Secretary has declined to pursue on review the applicability of the executive privilege. 2/ Rule 59 provides: Name of miner witnesses and informants. A Judge shall not, until 2 days before a hearing, disclose or order a person to disclose to an operator or his agent the name of a miner who is expected by the Judge to testify or whom a party expects to summon or call as a witness. A Judge shall not, except in extraordinary circumstances, disclose or order a person to disclose to an operator or his agent the name of an informant who is a miner.
~2522
The Secretary requested the judge to reconsider his ruling. The Secretary stressed that, through the depositions that had been taken, the respondents already had been supplied with the names of all persons having knowledge of the facts. The Secretary argued that the narrow definition of "informer" adopted by the judge defeated the underlying purpose of the informer's privilege. He maintained that if he were to comply with the judge's order, the respondents, being aware of all persons having knowledge of the facts, and being provided with the identities of those persons who made statements favorable to the respondents, could thereafter readily determine the identity of those persons who had made statements detrimental to their position. The judge rejected the Secretary's arguments. He ruled that a person making a statement to the Secretary which tended to discredit Logan, or that would show that there was no discrimination, was not an informer and that such person's identity and statements were not privileged. According to the judge, if an individual gave information favorable to the respondents, but also reported a violation of the Mine Act, MSHA was to disclose the former information in such a way as to avoid revealing the latter. If individuals who made statements favorable to the respondents were called as witnesses, the judge directed that no questions be asked of them that would tend to reveal whether they had reported violations of the law. The Secretary declined to produce the documents in accordance with his policy of protecting confidential sources. The judge, in turn, issued an order listing a number of sanctions he would impose at the hearing should the Secretary refuse to comply with the particulars of his order. The judge also issued a subpoena duces tecum to the Secretary compelling him to bring to the hearing all documents tending to disprove the allegations of Logan, and the names of witnesses which these documents indicated would testify adversely to the Secretary's position. Respondents filed a motion to dismiss on the ground that the Secretary had failed to comply with the judge's orders. The Secretary did not oppose dismissal. The judge, however, denied the operator's motion for dismissal noting the absence of assent by the alleged discriminatee, Logan. Shortly before the hearing, the Secretary provided the judge and counsel for respondents with a copy of his investigative file, except for those items which the Secretary deemed to be privileged, and a list of all persons whose names appeared in his file, including those believed to have knowledge of relevant facts. II. The informer's privilege is the well-established right of the government to withhold from disclosure the identity of persons furnishing information of violations of the law to law enforcement officials. Roviaro v. United States, 353 U.S. 53, 59 (1957). See generally Annot., 8 ALR Fed. 6 (1971). The purpose of the privilege is to protect the public interest by maintaining a free flow of information to the government
~2523
concerning possible violations of the law and to protect persons supplying such information from retaliation. Roviaro, 353 U.S. at 59; Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972). The privilege is qualified, however, and where disclosure is essential to the fair determination of a case, the privilege must yield or the case may be dismissed. Roviaro, 353 U.S. at 60-61. 3/ Respondents contend that the Secretary improperly attempted to limit the scope of discovery based solely upon a bare assertion of privilege without proper support by affidavit or proof of the applicability of the privilege. The burden of proving facts necessary to support the existence of the informer's privilege rests with the Secretary. Secretary of Labor v. Stephenson Enterprises Inc., 2 BNA OSHC 1080, 1082 (1974), 1973-74 CCH OSHD ¶ 18,277 at 22,401, aff'd. 578 F.2d 1021 (5th Cir. 1978). In the instant case, counsel for the Secretary asserted the privilege and resisted attempts by the respondents to obtain the disputed material. There is authority for the proposition that the privilege can be invoked only through the filing of a formal claim of privilege and confidentiality by the head of the department with control over the matter, supported by affidavits attesting to facts sufficient to allow an independent judicial determination that the privilege exists. Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963); Cf. Black v. Sheraton Corp. of America, 564 F.2d 531, 543 (D.C. Cir. 1977). The great weight of case law concerning the privilege, however, addresses and disposes of the issue without focusing on whether the privilege was "formally" raised. Here the claim of privilege was raised by the Secretary's trial attorney in response to the respondents' motions and the judge's orders. While the Secretary's claim of privilege may not have been raised in as formal and complete a fashion as possible, it was raised with sufficient formality to alert the judge and the opposing parties to the possibility of harm that could occur from disclosure of the statements. We therefore hold that the Secretary's method of raising the privilege was sufficient. We proceed with analysis of the general issue.
_____
3/ Before the question of privilege is reached, it must be determined whether the information sought through discovery is relevant to the subject matter of the proceeding. Wirtz v. Continental Finance and Loan Co., 326 F.2d 561, 563 (5th Cir. 1964). The scope of discovery in Commission proceedings is governed by Commission Procedural Rule 55(c), which provides: Parties may obtain discovery of any relevant matter, not privileged, that is admissible evidence or appears reasonably calculated to lead to the discovery of admissible evidence. 29 C.F.R. § 2700.55(c). No one has disputed the relevancy of the information contained in the statements sought by respondents. Certainly, the judge appears to have considered the material to be relevant. Given the absence of objection, the judge's rulings, and the broad interpretation traditionally accorded rules governing discovery, we assume that the material subject to the judge's orders is relevant, and proceed to consider whether the informer's privilege applies.
~2524
Although it is not absolutely clear from the record whether the Secretary is actually asserting the informer's privilege on behalf of non-miners as well as miners, the public interest in protecting persons who discuss alleged Mine Act violations with government officials is served regardless of the relationship of the informer to the alleged violator, i.e., whether the informer is an employee of the respondent or a non-employee. Courts have long recognized the obligation of all citizens to cooperate in law enforcement efforts and have encouraged and protected the communication of possible violations of law by shielding the informer's identity. Roviaro, 353 U.S. at 59. In addition, it has been held that the informer's privilege is applicable to any person furnishing information to government officials concerning violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Secretary of Labor v. Quality Stamping Products Co., 7 BNA OSHC 1285, 1288 (1979), 1979 CCH OSHD
¶ 23,520 at 28,504 (OSHRC). We believe that a similar conclusion is appropriate under the Mine Act. The Mine Act and its legislative history reflect congressional concern about the possibility of retaliation against miners who participate in enforcement of the Act. Section 103(g)(1) provides miners with the right to obtain an immediate inspection of the mine upon the miner's notification to the Secretary of the existence of a violation or danger. 30 U.S.C. § 813(g)(1). This section further provides that "the name of the person giving said notice and the names of individual miners referred to therein shall not" be provided to the operator. See S. Rep. No. 181, 95th Cong., 1st Sess. 29 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978) ("Legis. Hist."). Similarly, section 105(c)(1) of the Act proscribes discrimination where, among other things, a miner has instituted or caused to be instituted any proceeding under or related to the Act, or has testified or is about to testify in any such proceeding. 30 U.S.C.
§ 815(c)(1); Legis. Hist. at 623. We believe that these expressions of congressional concern for protecting the identity of miners who contact the Secretary regarding violations of the Act, and otherwise protecting miners who participate in enforcement of the Act, underscore the need for the recognition and proper application of the informer's privilege in Mine Act proceedings. Therefore, in order to maximize the lines of communication with the Secretary concerning violations of the Mine Act, we hold that a person's status as an informer is not dependent on whether that person is an employee of a mine operator. The presence of an employment relationship, however, with the greater opportunity for retaliation that it provides, is a relevant factor to be considered in conducting the balancing test, discussed infra, for determining whether the privilege must yield in a particular case. The crucial issue in the present case remains whether the substance of the information furnished to the Secretary by an individual is determinative of that person's status as an informer. Respondents contend that the administrative law judge properly ruled that persons who furnish the Secretary with information favorable to the operator are not informers. The Secretary maintains that an informer is entitled to anonymity, regardless of the substance of the information he furnishes.
~2525
We hold that the applicability of the informer's privilege to the Mine Act does not rise or fall based upon the substance of a person's communication with government officials concerning a violation of law. To hold otherwise would undermine the very purpose of that privilege. The informer's privilege is recognized at law in order to encourage all citizens to cooperate with government officials who are investigating possible violations of our nation's laws. To ensure that this public interest is fully served, it is essential that citizens who communicate with government officials in such investigations can be confident that their cooperation will not affect them adversely. This confidence would be seriously eroded, and the citizenry's desire to cooperate by communicating with government officials chilled, if the substance of a communication were held to control the disclosure or non-disclosure of the identity of the person giving the statement. The practical reasons underlying this conclusion are manifest. Not only could disclosure of the identities of persons giving favorable statements to MSHA lead, by process of deduction, to the identification of those persons giving adverse statements, but persons identified as giving favorable statements would be vulnerable to direct or subtle pressure to give even more favorable testimony. Cf. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 240 (1978). Furthermore, even though statements favorable to a party would not be resented by that party, other interested persons or parties might not hold as charitable a view of the "favorable'' statements. Id. Finally, a disclosure test that turns on the "favorable" or "unfavorable" nature of the contents of a statement would place on the government an obligation difficult to discharge due to the inherent subjectivity of the judgment required. Therefore, we hold that the judge erred in ruling that the informer's privilege applies only to persons furnishing information detrimental to a party. Rather, an "informer" is a person who has furnished information to a government official relating to or assisting in the government's investigation of a possible violation of law, including a possible violation of the Mine Act. Because the judge applied an erroneous test in ruling that the Secretary was required to disclose information and thereafter imposed sanctions against the Secretary for his failure to make that disclosure, a remand to the judge for application of the proper test is necessary. Given the procedural posture of this case, on remand the judge should order the Secretary to turn over the balance of the material withheld for an in camera inspection. In evaluating this material, the judge should first determine whether the information sought by the respondents is relevant and, therefore, discoverable. If he concludes that the material is discoverable, he should then determine whether the information is privileged. Application of the informer's privilege should be based upon the definition of "informer" adopted above.
~2526
Recognizing that the informer's privilege is qualified, if the judge concludes that the privilege is applicable, he should next conduct a balancing test to determine whether the respondents' need for the information is greater than the Secretary's need to maintain the privilege to protect the public interest. Drawing the proper balance concerning the need for disclosure will depend upon the particular circumstances of this case, taking into account the violation charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. Among the relevant factors to be considered are the possibility for retaliation or harassment, and whether the information is available from sources other than the government. The burden of proving facts necessary to show that the information is essential to a fair determination rests with the party seeking disclosure. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d at 307. In this regard a demonstrated, specific need for material may prevail over a generalized assertion of privilege. Black v. Sheraton Corp. of America, 564 F.2d at 545. Some of the factors bearing upon the issue of need include whether the Secretary is in sole control of the requested material or whether the material which respondents seek is already within their control, and whether respondents had other avenues available from which to obtain the substantial equivalent of the requested material. Where the disclosure of the identity of an informer is essential to a fair determination of the case, the privilege must yield or the case may be dismissed. Roviaro, 353 U.S. at 59. If, on the one hand, the judge concludes that the Secretary's need to preserve the identity of his informers should prevail, he should deny the amended motion to compel production of documents, seal the material previously withheld as part of the record for use on any appeal, and proceed to decide the case on the merits without resort to the sanctions previously imposed due to the Secretary's nondisclosure of the statements. If, on the other hand, the judge concludes that the respondents' need for this information is essential for a fair determination of the case, and that the privilege must yield, he should order the Secretary to disclose the information. The judge may, at his discretion, conduct a limited hearing to afford the parties an opportunity to develop additional evidence based upon the disclosure. He should then proceed to decide the case solely on the basis of the supplemented record. Should the Secretary resist the judge's order to disclose, dismissal of the proceeding is the appropriate sanction with further review available in accordance with section 113(d)(2) of the Mine Act. 30 U.S.C. § 823(d)(2). In any event, the judge's decision must be supported by findings of fact and conclusions of law, and be grounded in the body of case law developed by the Commission in the areas of work refusal and discriminatory discharge.
~2527
For the reasons set forth above, we reverse the decision of the administrative law judge and remand the case to him for further proceedings consistent with this decision. James A. Lastowka, Commissioner L. Clair Nelson, Commissioner