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ASHLEY v. U.S. DOL

October 21, 1983

ANNIS MAE ASHLEY, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF LABOR, Defendant



The opinion of the court was delivered by: FLANNERY

 The plaintiffs in this case have filed an action under the Freedom of Information Act (FOIA) to compel the production of certain documents held by the United States Department of Labor Mine Safety and Health Administration (MSHA). Plaintiffs seek disclosure of all materials relating to MSHA safety investigations of several recent multiple-fatality mine disasters and MSHA reactions, if any, to these disasters. MSHA identified 21 responsive documents and disclosed eight in their entirety and parts of nine others, but argues that the remaining material is protected by the "deliberative process" privilege embodied in Exemption five of FOIA, 5 U.S.C. 552(b)(5). Plaintiff argues that, as a matter of law, the undisclosed material is not covered by Exemption five. This matter comes before the court on the parties' cross-motions for summary judgment. For the reasons stated herein, the court grants defendant's motion for summary judgment with regard to all disputed documents except document 19, which is ordered disclosed in part.

 Facts

 On May 10, 1982, plaintiffs made a FOIA request to MSHA for copies of "any memorandum or internal correspondence from any of the accident investigation teams to the Assistant Secretary or to the Coal Administrator [of MSHA] regarding any findings or suggestions growing out of the multiple-fatality accident investigations beginning with the Ferrell mine accident up to the present time," as well as "information as to whether any action has been undertaken by the agency as the result of these investigations." Pursuant to this request, MSHA identified 21 responsive documents, but refused to disclose all or parts of a majority of the documents. On November 10, 1982, after plaintiffs had exhausted all administrative remedies, they filed this FOIA action seeking disclosure of the still withheld material. Following initiation of this suit, MSHA disclosed all or parts of several additional documents, but the agency is still withholding all of the documents 9, 10, 19 and 21 and parts of documents 11-18 and 20. *fn1"

  On February 16, 1983, MSHA submitted a detailed Vaughn affidavit setting forth the precise nature of the material withheld, the context within which the documents were generated, and the agency's reasons for non-disclosure. See Petters Affidavit. MSHA subsequently filed an additional affidavit describing in even greater detail the responsibilities and organizations of the MSHA Division of Safety and the Office of Technical Compliance and Investigations. See Lamonica Affidavit. All of the contested documents in this case were generated by Division of Safety or Office of Technical Compliance personnel in connection with an in-house self-evaluation and improvements program under the direction of Joseph A. Lamonica, Administrator for Coal. Consistent with MSHA's statutory responsibility continually to develop and enforce mine safety and health standards to reduce the incidence of mine accidents, the purpose of the program is to assist the agency in the ongoing process of reviewing and revising mine health and safety standards, inspector training programs, mine investigation procedures, and field office management practices. *fn2" After serious mine accidents, MSHA staffers connected with the self-evaluation and improvements program are dispatched to the accident site to "inspect the inspectors" in an effort to determine whether inadequate mine inspection procedures, inspector incompetence, or poorly devised safety standards contributed to the accident, and in order to pinpoint areas in need of improvement. The documents at issue in this case were prepared following such visits, and consist of reports or follow-up memoranda on the adequacy or inadequacy of various aspects of MSHA's program, at times accompanied with the writer's recommendations for improvement. All of the disputed documents were written by agency subordinates without decisionmaking authority for use by their immediate superiors or more senior agency officials responsible for determining what changes, if any, should be made in MSHA regulations, practices, and procedures. The contents of each of the contested documents and the role each document allegedly played in the agency's deliberative process was discussed in detail in an affidavit prepared by Sofia P. Petters of the Department of Labor, and can be summarized as follows:

 Documents 9 and 10, which have been withheld in full, contain the writer's opinions regarding the adequacy of safety investigations which were conducted at the Ferrell mine site. The writer makes several specific personnel and other more general recommendations for improvement of inspection staff performance. Both documents were written by the Chief of the Division of Safety to MSHA superiors, and were intended to aid in the development of programs and procedures to enhance inspection staff performance.

 Documents 11 - 16 were disclosed in part; the deleted portions consist of the opinions of Safety Division investigators on a myriad of enforcement-related issues including the adequacy of actions taken by mine inspectors at multiple-fatality accident sites and whether those inspectors had received adequate training. These memoranda were submitted to the Chief of the Division of Safety to assist him in formulating specific recommendations to senior agency officials regarding what improvements in the enforcement program, if any, are needed.

 Document 18, which was withheld in part, discusses a post-disaster inspection audit of selected MSHA field offices. The purpose of the audit was to "determine whether existing inspection policies and procedures sufficiently address MSHA's enforcement responsibilities, and to what extent those policies and procedures were being followed by MSHA inspection personnel." The memorandum at issue was written by an official from the Office of Technical Compliance and Investigations to the head of the self-evaluation and improvements program to assist him in determining what changes, if any, were needed in inspector hiring and training and use of agency enforcement resources. The deleted portions consist of the writer's opinions regarding deficiencies in these areas, as well as the writer's recommendations regarding the assignment of mine inspectors and other administrative matters.

 Document 19 is a 116 page compilation of two to four page reports prepared by Office of Technical Compliance and Investigations personnel, entitled "Compliance and Efficiency Surveys in the Field Offices of Districts 6 and 7." The document was withheld in its entirety. Each two to four page report discusses a discrete subject or problem in the areas of MSHA inspection and enforcement, and is written on an agency form. The forms contain an "observation" section, a "reference and recommendations" section, which contains recommendations by the field inspectors interviewed by the report author, and a "comments" section, which contains the author's personal recommendations for an appropriate administrative response, if any, to the issue discussed in the report. The reports making up document 19 are reviewed on a periodic basis by the head of the Office of Technical Compliance and Investigations, and they provide him with information which may form the basis for any recommendations he chooses to make to superior agency policy makers regarding the need for revisions in MSHA enforcement procedures or standards.

 Document 20, a five page memorandum captioned "Multiple Fatalities, Plan Approvals and Quality of Inspections," was prepared by the chief of the Division of Safety based on his review of documents 11-17, and is addressed to the director of the self-evaluation and improvements program, Mr. Lamonica, for his use in ongoing efforts to improve the MSHA enforcement program. Parts of the document were disclosed; the deleted portions consist of the author's conclusions as to which of the enforcement problems revealed through post-accident investigations are most important, as well as the author's recommendations regarding specific changes that should be made to enhance MSHA's enforcement program.

 Document 21, which has been withheld in its entirety, is a four page memorandum entitled "Training", which was written by the Safety Division chief to Mr. Lamonica. It contains the author's assessment of MSHA's inspector training program and makes several recommendations, gleaned in part from documents 9 and 10, for the improvement of the program.

 Discussion

 A. General Standards for De ...


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