Clinchfield Coal Company

Plain-English summary

Clinchfield Coal asked the judge to compel the Secretary of Labor to produce the unredacted field notes of an MSHA inspector. The Secretary argued that the withheld portion contained internal deliberations protected by the deliberative-process privilege. After reviewing both versions in camera, the judge found that the redacted material contained no relevant facts and was not admissible or reasonably likely to lead to admissible evidence. The motion to compel was denied, and the underlying citation proceeding continued.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2700.56(b), concerning discovery in Commission proceedings.
• Outcome: Clinchfield Coal's motion to compel discovery of the redacted inspector notes was denied.
• Key point: Internal agency deliberations may remain protected when the withheld material is pre-decisional, deliberative, and contains no relevant factual material.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                            OFFICE OF ADMINISTRATIVE LAW JUDGES
                                     2 SKYLINE, Suite 1000
                                     5203 LEESBURG PIKE
                                FALLS CHURCH, VIRGINIA 22041


                                      March 2, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 2001-7
Petitioner : A. C. No. 44-06975-03503
v. :
:
CLINCHFIELD COAL COMPANY, :
Respondent : Roaring Fork #3 Mine

            ORDER DENYING MOTION TO COMPEL DISCOVERY

    Respondent Clinchfield Coal Company filed on February 21, 2001, a Motion to Compel

Discovery seeking from the Secretary of Labor the full unredacted field notes of Inspector Gary
Jessee. The Secretary filed her response to the motion on March 1, 2001, asserting that she has
produced for Respondent a redacted version of the field notes of Inspector Gary Jessee and
maintains that the redacted portion is subject to the deliberative process privilege.1 The
Commission In re: Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987,
990-93 (June 1992) in addressing the deliberative process privilege quoted from Jordan v. United
States Department of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978) as follows:

           This privilege protects the ‘consultative functions’ of government by
   maintaining the confidentiality of ‘advisory opinions, recommendations and
   deliberations compromising part of the process by which governmental decisions
   and policies are formulated.’ (Citations omitted). The privilege attaches to inter-
   and intra-agency communications that are part of the deliberative process
   preceding the adoption and promulgation of an agency policy. To be covered by
   the privilege, the material must be both “pre-decisional” and “deliberative.” Id.
   Purely factual material that does not expose an agency’s decision making process
   is not covered by the privilege, unless it is so inextricably intertwined with
   deliberative material that its disclosure would not compromise the confidentiality
   of the deliberative information that is entitled to protection. It is the Secretary’s
   burden to prove that the privileges applies to the material it seeks to protect from
   disclosure.



   1
           On March 2, 2001, the Secretary provided Respondent and the judge with a

revised redaction disclosing additional information. This ruling is based upon the revised
redaction.

                                            347

    In determining whether to recognize the privilege, a court must balance the public interest

in protecting the information with the litigant’s need for it. United States v. Nixon, 418 U.S. 683
(1974); 8 Wright and Miller, Federal Practice and Procedure § 2019 at 167-169 (1970). The
Court considers such factors as the relevance of the information sought, its availability elsewhere,
the nature of the case, and the degree to which disclosure would hinder the government’s ability
to hold frank discussions about contemplated policy. If the government can demonstrate that its
interest in non-disclosure outweighs the litigant’s need for the information, a claim of deliberative
process privilege will be accepted by a court. Lundy v Interfirst Corporation, 105 FRD 499 (D.
D.C.).

    The undersigned has been provided with both the unredacted and redacted notes and has

performed an in camera review of the documents. As the Secretary correctly notes in her
response to the motion she has redacted only a small portion of the field notes from the inspector
who issued the citation at bar and the redacted portion refers to internal conversations between
Inspector Jessee and a supervisor at the Mine Safety and Health Administration (MSHA). As the
Secretary also correctly observes the redacted portions relate to a decision-making process and do
not contain any factual material relevant to the case. Indeed, I find that the redacted portion of
the inspector’s notes are neither relevant nor relate to matters that would either be admissible
evidence or likely to lead to the discovery of admissible evidence. See Commission Rule 56, 29
C.F.R. § 2700.56(b). I further find that the information sought from the redacted portion of the
inspector’s notes does not appear to be reasonably calculated to lead to the discovery of
admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.

   Under all the circumstances the deliberative process privilege claimed by the Secretary is

hereby sustained.

                                          ORDER

    The Respondent’s Motion to Compel Discovery of Redacted Portions of Inspector

Jessee’s notes on April 4 and 5, 2000, is hereby denied.

                                           Gary Melick
                                           Administrative Law Judge
                                           703-756-6261




                                             348

Distribution: (Certified Mail)

Karen Barefield, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22202

Julia K. Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322

\mca

                                           349