.
CDK CONTRACTING COMPANY
WEST 2001-420-RM
April 18, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
April 18, 2002
CDK CONTRACTING COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 2001-420-RM
: Order No. 7919016; 4/23/2001
:
: Docket No. WEST 2001-421-RM
: Order No. 7919017; 4/23/2001
v. :
: Docket No. WEST 2001-422-RM
: Order No. 7919018; 4/23/01
:
: Docket No. WEST 2001-423-RM
: Order No. 7919019; 4/23/2001
SECRETARY OF LABOR :
MINE SAFETY AND HEALTH : Docket No. WEST 2001-424-RM
ADMINISTRATION (MSHA), : Order No. 7919021; 4/23/2001
Respondent :
: Docket No. WEST 2001-425-RM
: Order No. 7919022; 4/23/2001
:
: Docket No. WEST 2001-426-RM
: Citation No. 7919023; 4/23/2001
:
: Docket No. WEST 2001-427-RM
: Citation No. 7919024; 4/23/2001
:
: Docket No. WEST 2001-428-RM
: Citation No. 7942519; 4/23/2001
:
: Mine ID 05-00037 L35
: Portland Plant/Quarry
ORDER GRANTING, IN PART, CONTESTANT'S
MOTION TO COMPEL PRODUCTION
CDK Contracting Company ("CDK") filed a motion to compel
the Secretary to produce a document entitled "Draft Fatal
Accident at Holnam Cement Plant, Summary of Physical Factors"
in response to its discovery requests ("Physical Factors
Summary"). The Secretary withheld the Physical Factors Summary
pursuant to the deliberative process privilege.
CDK asserts that the Physical Factors Summary contains
relevant information that is essential to the preparation of
its defense in these cases. One of its employees fell to his
death while working at the Holnam Cement Plant, in Florence,
Colorado. Employees of the Mine Safety and Health
Administration's ("MSHA") Technical Support branch provided
assistance to the supervisory MSHA inspector who investigated
the accident. In his deposition, this inspector testified that
he relied on information contained in the Physical Factors
Summary when he issued the citations and orders at issue. CDK
contends that the Physical Factors Summary contains information
that directly relates to the issues in these cases. It argues
that the deliberative process privilege does not apply to
factual information contained in the Physical Factors Summary
and that it is therefore entitled to this information. In
addition, CDK argues that the reasoning behind MSHA's decision
to issue citations in these cases is not protected by the
privilege. It maintains that the privilege protects personal
opinions by agency employees not policies adopted by the
agency. CDK argues that, in any event, a document loses its
protected status once MSHA relies on the document when taking
enforcement actions. In the alternative, it asks for an in
camera review of the Physical Factors Summary.
The Secretary opposes an in camera review and asks that I
deny CDK's motion. The Secretary provided CDK with a privilege
log which states that the Physical Factors Summary is
"privileged pursuant to the deliberative process privilege."
She contends that the privilege protects communications between
subordinates and supervisors that are antecedent to adoption of
agency policy. She states that the Physical Factors Summary is
a four-page document prepared by Michael Shaughnessy, an MSHA
Mechanical Engineer, for review by Ronald Pennington, an MSHA
supervisory mine inspector. Mr. Shaughnessy was assigned to
evaluate the physical factors involved in the fatal accident.
The Secretary further states that Shaughnessy's Physical
Factors Summary includes a "section describing the purpose of
the evaluation, an analysis and conclusion about the physical
factors that contributed to the fatality, and a section
summarizing Mr. Shaughnessy's findings." (S. Response at 6).
The Physical Factors Summary was sent to Inspector Pennington
before any citations or orders were written and before MSHA
issued its written report on the accident, which the Secretary
asserts "contains MSHA's final opinion about the contributing
factors and causes of the fatal accident investigated by
Inspector Pennington's team." Id. She states that the
contested document was written in order to provide "Inspector
Pennington with the perspective of a mechanical engineer on the
facts of the case prior to any decisions on citations and
orders and the Report of Investigation." Id. at 7.
Based on the above, the Secretary contends that the
Physical Factors Summary is pre-decisional because it was
submitted to the supervisory inspector before any enforcement
action was taken and before the final accident report was
written. She states that it is deliberative because it is the
work product of a "subordinate team member" prepared for use by
the lead accident investigator "who is charged with making
final agency decisions." Id. The Secretary argues that the
Physical Factors Summary is "a pre-decisional recommendation by
a subordinate team member to an agency decision-maker who was
free to accept or reject the factual conclusions contained
within it." Id. at 8. The Secretary contends that CDK is free
to discover the reasons for any decision made by MSHA in these
cases; it just cannot "pry into the agency's internal
deliberations." Id. at 9.
The Secretary also maintains that any facts contained in
the Physical Factors Summary are Shaughnessy's "interpretation
of the facts, not the agency's." Id. As a consequence, the
Secretary contends that the any "facts" contained in the
document are also deliberative. She argues that the
deliberative process privilege protects the ability of
subordinates with technical expertise to present to the
agency's enforcement personnel their perspective on the facts
of a case without the fear that their view of the facts will be
released in future litigation. The Secretary also contends
that an in camera review is unnecessary because the court can
determine that the privilege has been properly invoked without
such an inspection.
ANALYSIS
The deliberative process privilege protects the
"`consultative functions' of government by maintaining the
confidentiality of `advisory opinions, recommendations, and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.'" Jordan
v. U.S. Dept. of Justice, 591 F.2d 753, 772 (DC Cir. 1978)
(citations omitted). To be covered by the privilege, the
material must be both pre-decisional and deliberative. 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 the deliberative material that
its disclosure would compromise the confidentiality of the
deliberative information that is entitled to protection. It is
the Secretary's burden to establish that the privilege applies
to material it seeks to protect from disclosure.
During his deposition, Inspector Pennington stated that he
relied upon information provided to him by Mr. Shaughnessy in
the Physical Factors Summary when he issued the citations and
orders to CDK. (Pennington Dep. at 174). CDK contends that it
is entitled to review this factual information because it was
part of the basis for the Secretary's enforcement action. The
Secretary maintains that even the factual portions of the
Physical Factors Summary represent "Shaughnessy's opinion on
what the facts in this case were." (S. Response at 9). The
contested document merely contains Shaughnessy's
"interpretation of the facts" with the result that the document
is protected by the privilege. Id.
The Secretary states that Inspector Pennington made the
final decision to issue the citations and orders in these
cases. CDK is entitled to know what facts Inspector Pennington
relied on when he issued citations and orders, no matter what
the source of these facts were. I agree with the Secretary
that Shaughnessy's "interpretation of the facts" is protected
by the privilege. If, however, Inspector Pennington relied on
any of "Mr. Shaughnessy's facts" when taking enforcement
actions against CDK, then these facts are no longer protected
because the agency adopted these facts as its own findings when
it took these enforcement actions. See Newmont Gold Co., 18
FMSHRC 1532, 1535-37 (Aug. 1996) (ALJ).
Relying on National Wildlife Federation v. U.S. Forest
Service, 861 F.2d 1114 (9th Cir. 1998), the Secretary contends
that the entire Physical Factors Summary is protected because
disclosing the document would expose MSHA's deliberative
process to public scrutiny. In that case, the court held that
the issue was whether the contested documents were part of the
deliberative process of the agency not whether they were
essentially deliberative or factual. Id. at 1118. The court
held, "even if the content of a document is factual, if
disclosure of the document would expose `the decision-making
process itself' to public scrutiny by revealing the agency's
`evaluation and analysis of the multitudinous facts,' the
document would nevertheless be exempt from disclosure." Id.
(citation omitted). Under this process-oriented analysis,
"documents containing nonbinding recommendations on law or
policy would continue to remain exempt from disclosure." In
addition,
[f]actual materials . . . would likewise be
exempt from disclosure to the extent that
they reveal the mental processes of
decision-makers. In other words, whenever
the unveiling of factual materials would be
tantamount to the "publication of the
evaluation and analysis of the
multitudinous facts" conducted by the
agency, the deliberative process applies.
Id. at 1119 (citation omitted). The Commission adopted this
analysis, In Re: Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC 987, 992-93 (June 1992).
The dispute over the deliberative process privilege arose
under significantly different circumstances in National
Wildlife Federation ("NWF") than in the present cases. NWF
involved draft forest plans and draft environmental impact
statements that were considered by the agency when it developed
a plan for the Wallowa-Whitman National Forest. Many documents
and parties were involved in the adoption of the forest plan.
The present case involves civil litigation that was initiated
after the Secretary issued the citations and orders against
CDK. In issuing the citations and orders that engendered these
cases, the Secretary relied upon certain facts developed by
Mr. Shaughnessy during his investigation. Disclosing to CDK
the facts that Inspector Pennington relied upon when issuing
the citations will not "reveal the mental processes of
decision-makers." The Secretary does not dispute that CDK is
entitled to discover the reasons why she issued the citations
and orders. Thus, the Secretary will inevitably be revealing
the mental processes that MSHA's decision-makers went through
when they concluded that CDK violated the agency's safety
standards. Disclosing the facts that Inspector Pennington
relied upon will, at most, only reveal these same mental
processes. The document in question is a four-page summary
prepared by Mr. Shaughnessy. Release of the facts in the
document that were relied upon by the agency in issuing the
citations and orders is not "tantamount to the publication of
the evaluation and analysis of the multitudinous facts
conducted by the agency." In NWF, the agency voluntarily
released portions of the disputed documents and the District
Court, after an in camera inspection, ordered that additional
portions be released. Id. at 1115-16. On review, the 9th
Circuit held that the remaining portions were protected by
the privilege because release of the remaining portions would
reveal the agency's deliberative process. Id. at 1123. The
Secretary has not released any portion of the Physical Factors
Summary nor has she shown how the release of facts in the
document will reveal MSHA's deliberative processes. She opposes
an in camera review.
I hold that CDK is entitled to those portions of the
Physical Factors Summary that set forth facts relied upon by
MSHA when it issued the citations and orders at issue in these
cases. Although the Physical Factors Summary is pre-
decisional, the facts relied upon by MSHA to justify the
issuance of the citations are not deliberative and the
privilege does not apply. In her response to the motion to
compel, the Secretary stated that she will be calling Mr.
Shaughnessy as an expert witness at the evidentiary hearing and
that she will produce an expert witness report pursuant to Fed.
R. Civ. P. 26(a)(2) when required by the administrative law
judge. Thus, as a practical matter, the Secretary will be
disclosing prior to trial all of the facts she is seeking to
protect here. I find that CDK's need for the information far
outweighs the Secretary's interest in keeping it confidential.
ORDER
CDK's motion to compel the production of documents is
GRANTED, but only to the extent described in this order. It is
ORDERED that counsel for the Secretary shall direct Inspector
Pennington to review the Physical Factors Summary and specify
those portions of the document that he relied upon when he
determined that the subject citations and orders should be
issued to CDK. The Secretary may redact those portions of the
Physical Factors Summary that Inspector Pennington did not rely
upon in issuing the citations and orders. The opinions and
nonbinding recommendations of Mr. Shaughnessy that were not
factual in nature need not be released. All information that
is purely factual in nature must be released, even if Inspector
Pennington did not rely upon such facts. Counsel for the
Secretary SHALL PROVIDE to counsel for CDK, on or before May
15, 2002, those portions of the Physical Factors Summary that I
have held are not protected by the deliberative process
privilege, as described above. Except as set forth above,
CDK's motion to compel the production of documents is DENIED.
Richard W. Manning
Administrative Law Judge
Distribution:
Karen L. Johnston, Esq., Jackson & Kelly,1099 18th Street,
Suite 2150, Denver, CO 80202 (Fax and First Class Mail)
Gregory W. Tronson, Esq., Office of the Solicitor, U.S.
Department of Labor, P.O. Box 46550, Denver, CO 80201-6550 (Fax
and First Class Mail)
RWM