C C Coal Company

Plain-English summary

C C Coal Company asked the Administrative Law Judge to compel the Secretary to provide records about the proposed civil penalty and documents gathered during the investigation of an alleged mine safety violation. Judge Irwin Schroeder held that the Secretary's deliberative process privilege protected the officials' internal evaluation of penalty information, but the company could receive the factual information and criteria used. The judge also found that most investigative records were protected by work product or informant privilege only in part, and ordered production of the documents except for two memoranda to file by Linda Roberts. The order granted the motion in part and denied it in part.

Decision snapshot

• Cited standard(s): None stated in the order.
• Outcome: The motion to compel discovery was granted in part for investigative documents and denied in part for privileged penalty-assessment material and two memoranda.
• Key point: The deliberative process privilege protects officials' evaluation of penalty information, while factual information and non-identifying investigative material may be discoverable.

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



                                    December 27, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2001-58
Petitioner : A.C. No. 46-08476-03513
v. :
:
C C COAL COMPANY, :
Respondent : Skitter Creek Mine #1

                    ORDER DENYING IN PART A MOTION TO
                            COMPEL DISCOVERY
                     AND GRANTING IN PART A MOTION TO
                            COMPEL DISCOVERY

    This case is before me on a Petition by the Secretary to assess a Civil Penalty for the

alleged violation of mine safety regulations. The parties have filed prehearing summary
statements pursuant to my prehearing order and are engaged in discovery in preparation for a
hearing now scheduled for January 23, 2002, in Charleston, West Virginia.1

    On December 11, 2001, the respondent filed a motion to compel discovery, seeking two

classes of information; (1) records of the process of calculating t he Civil Penalty pro posed by the
Secretary, and (2) documents obtained in the course of an investigation, including witness
statements. On December 19, 2001, the Secretary filed a response to the motion, including copies
of the requested investigative documents for my in camera inspection. For the reasons given
below, I deny the motion with a few exceptions listed..

   Method of Assessment

   Respondent asserts a need t o know the method used by the Secretary in calculating the

proposed Civil Penalty in this case. The Secretary responds by invoking the “deliberative
process” privilege and contending that Respondent has not shown a compelling need for
information on the process to justify overriding the privilege. It is my understanding Respondent
has been provided the penalty assessment sheet.

   1
   The timeliness of the Motion to Compel was never seriously in doubt. See, letter of

December 26, 2001, from Respondent’s Counsel to the Administrative Law Judge.

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    The motion does not raise legal issues as to the existence and scope of the “deliberative

process” privilege. There is no question about the privilege extending to the consultations, oral or
written, between government officials leading up to a determination of the amount of a Civil
Penalty to assert in a case such as this. Respondent is entitled to know the factual information
used by these officials and the criteria which they employed in evaluating the factual information.
Respondent is not seeking either the factual information or the criteria. Respondent is seeking to
know the significance the officials placed on particular bits of information. This is precisely what
is protected by the privilege.

   Further, Respondent has not made a compelling showing of need for this privileged

information. At the hearing, t he way MSHA officials evaluated information in reaching their
conclusion as to an appropriate Civil Penalty would not be relevant. The issue at a hearing will be
how I evaluate the information presented as it relates to an appropriate Civil Penalty amount.

   Investigative Records

     The investigative records sought in this case fall into three basic categories; (1) records of

interviews with management, (2) records of interviews with miners, and (3) records of
conversations with Respondent’s attorney. All of these records were created or obtained
subsequent to the issuance of a citation by a mine inspector. I find the timing alone qualifies these
records under the Work Product privilege; all of them were created or obtained when the
probability of litigation was sufficiently great to consider them “in contemplation” of litigation.
On the other hand, I find Respondent has shown a sufficient need for the information to overcome
this relatively weak privilege. Unless t he do cuments are otherwise privileged, Respondent is
entitled to t hem. The parties appear to agree that the applicable law is well articulated in the
decision by Judge Feldman in Secretary of Labor v. Root Neal & Company,
21 FMSHRC 835 (July 1999).

     The other privilege asserted for these documents is the “informant” privilege. I note

initially that this privilege protects only the identity of the informant. It does not protect the
information which the informant has provided unless the information is such as to precisely
identify the informant. I note also that the privilege extends only to informants who are “miners.”
I find the privilege does not extend to mine management staff, members of the general public, or
to government employees.

   Applying these principles to the documents provided to me in camera I conclude the

Secretary is obligated to produce all the documents other than the Memoranda to File by Linda
Roberts dated January 23 and February 12, 2001.

    ORDERED as follows:

   1. Secretary will provide to t he Respondent all the documents which accompanied the

Secretary’s December 20, 2001, letter to me except for the Memoranda to File by Linda Roberts

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dated January 23 and February 12, 2001.

  2. Except for the documents to be produced under paragraph 1, above, the motion to

compel discovery is denied.

                                       Irwin Schroeder
                                       Administrative Law Judge
                                       703-756-5232

Distribution:

Alfred R. Hernandez, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)

Mark E. Heath, Esq., HEENAN, ALTHEN & ROLES, BB&T Square, 300 Summers St.,
Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549 (Certified Mail)

/mh

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