Document 17 is a one page memorandum from a Safety Division staff member to the Division chief concerning the roof control plan at a mine which had recently experienced a serious accident. The deleted portions consist of the author's opinions regarding the efficacy of the company's roof control plan and MSHA's review and enforcement of that plan. Like documents 11 - 16, document 17 was submitted to the Safety Division chief for his use in making recommendations to agency superiors, in this case regarding the need for MSHA changes in its procedures for review and enforcement of roof control plans.
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.
A. General Standards for De Novo Review
Several general principles guide the court in its review of MSHA's claim that the disputed documents are exempt from disclosure under 5 U.S.C. § 552(b)(5), the "deliberative process" exemption. First, the agency has the burden of justifying nondisclosure by establishing the applicability of the claimed exemption to each document or portion thereof that is withheld, and its burden is a heavy one when the deliberative process privilege is claimed, as here, with respect to documents that were not part of a clearly defined process leading to a specific decision, Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C. Cir. 1980); Vaughn v. Rosen (Vaughn II), 173 U.S. App. D.C. 187, 523 F.2d 1136, 1146 (D.C. Cir. 1975).
Second, the agency must sustain its burden of proof through submission of detailed affidavits which identify the documents at issue and why they fall under the claimed exemption, Vaughn v. Rosen (Vaughn I), 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974); accord, Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). The court must conduct a de novo review of the agency's exemption claims, but generally should not do so on the basis of in camera review of the disputed documents; it should do so on the basis of the agency's affidavits, Hayden, 608 F.2d at 1387; Lead Industries Association v. OSHA, 610 F.2d 70, 87 (D.C. Cir. 1979); Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 260 (D.C. Cir. 1977). If the affidavits are specific, clear, and reasonably detailed, and there is no evidence in the record contradicting them or demonstrating agency bad faith, then the court need not question the veracity of the affidavits and must accord them substantial weight in its decision, Brinton v. Department of State, 204 U.S. App. D.C. 328, 636 F.2d 600, 606 (D.C. Cir. 1980), cert. denied, 452 U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3030 (1981); Hayden, 608 F.2d at 1387.
Finally, the court may grant summary judgment only if it is satisfied that the moving party has proven that no substantial and material facts are in dispute and that it is entitled to judgment as a matter of law, McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1100 (D.C. Cir. 1983); Weisberg v. United States Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980).
Both parties to this suit have asserted that there are no substantial and material facts in dispute, although plaintiffs have characterized some of the disputed documents in a way which is inconsistent with the description of the documents contained in MSHA's affidavits.
As noted above, MSHA has submitted affidavits which clearly and specifically identify the documents at issue, the context within which they were generated, and its grounds for non-disclosure. Because plaintiffs have not alleged or proven agency bad faith or introduced evidence which contradicts the validity of the agency's affidavits, the court need not question the veracity of the affidavits and accepts the agency's description of the documents at issue and their context, Brinton, 636 F.2d at 606; Hayden, 197 U.S. App. D.C. 224, 608 F.2d 1381. The court therefore adopts the description of the documents at issue contained in the agency's affidavits, and finds that there are no substantial or material issues of fact in dispute. This action may therefore be disposed of by summary judgment.
B. The Deliberative Process Privilege
Although the basic policy of FOIA is to promote the disclosure of government documents, Congress enacted a number of exemptions from the otherwise mandatory requirements in order to protect legitimate governmental interests. Exemption 5, which MHSA asserts as the basis for withholding the documents at issue, exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency," 5 U.S.C. § 552(b)(5). It is well established that Exemption 5 incorporates the governmental privilege, originally developed in discovery cases, to protect documents "containing advisory opinions and recommendations, or reflecting deliberations comprising the process by which government policy is formulated," Mead Data, 566 F.2d at 242, see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); ITT World Communications, Inc. v. FCC, 226 U.S. App. D.C. 67, 699 F.2d 1219, 1233 (D.C. Cir. 1983). In adopting this "deliberative process" privilege, Congress recognized that full and frank exchange of ideas, recommendations, and personal opinions between agency personnel would be inhibited if agencies were forced to operate in a fishbowl. Congress feared that the quality of agency decisionmaking and decisions would be seriously undermined under such circumstances, Sears, 421 U.S. at 150-51, Coastal States, 617 F.2d at 866. In addition, the Court of Appeals for the District of Columbia Circuit has recognized that Exemption 5 protects documents which would "inaccurately reflect . . . the views of the agency, suggesting as agency policy that which is as yet only personal opinion" in order to "protect against confusing the issues and misleading the public," Coastal States, 617 F.2d at 866.
To demonstrate that withheld material is protected by the deliberative process privilege, the agency must show that the document was "pre-decisional" - i.e., generated before the adoption of agency policy on the issue it discusses; that the deleted material was "deliberative" - i.e., reflective of the give-and-take of the consultative process, see Coastal States, 617 F.2d at 866; and that it contains no factual material which is reasonably segregable and may be disclosed without revealing the agency's deliberative processes, see EPA v. Mink, 410 U.S. 73, 88-90, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973).
Plaintiffs in this case argue that the contested documents are neither pre-decisional nor deliberative, but that they are primarily investigative reports which reflect the agency's final objective analysis of past agency performance. Plaintiffs contend that documents, such as those withheld here, which were generated as part of an ongoing, nebulous process of agency self-evaluation cannot be considered pre-decisional since there is no specific agency decision they were intended to support. Such documents, plaintiffs assert, do not reflect the agency's deliberative process because they are essentially retrospective, final reports which are often simply filed away for possible future reference. Plaintiffs rely heavily on Vaughn v. Rosen (Vaughn II), 173 U.S. App. D.C. 187, 523 F.2d 1136 (D.C. Cir. 1975), contending that Vaughn II requires disclosure of all documents which "primarily investigate and evaluate the past performance of agency personnel," and that such documents are not insulated from disclosure merely because the agency claims they were developed for the sake of future agency improvements.
Plaintiffs interpret Vaughn II much too expansively, and ignore recent precedent. Vaughn II simply does not hold that all documents which evaluate past agency practices as part of a self-improvements program must be disclosed; it merely holds that the agency must carry a heavy burden of demonstrating that such documents play a role in the deliberative process, and that to meet that burden the agency must provide a detailed description of how each document contributes to that process, Vaughn II, 523 F.2d at 1143-44. In Vaughn II, the government made no effort to demonstrate what portions of the contested documents were evaluative, and also failed to demonstrate how the contested document, a special, independent commission report on the personnel practices of federal agencies, would be used by specific agencies to make future decisions on personnel practices, id.6
By contrast, in the case at bar MSHA has described each contested document in detail, and has disclosed what it determined to be non-protected portions of most of the documents. Most importantly, with respect to each document, MSHA has spelled out in detail the precise context within which it was generated and what role in the deliberative process it plays. The documents were all generated pursuant to an established self-evaluation and improvements program designed to enhance MSHA enforcement efforts. They were all written by agency personnel who had no decisionmaking authority, and were addressed to agency superiors to help them formulate general or specific policies. The types of decisions each document was intended to support were described in detail in MSHA's affidavits.
Further, contrary to plaintiff's assertion, the courts have not required that documents which are not part of a clear process leading up to an assured final decision be disclosed in all cases, as long as the agency can demonstrate that the documents are part of some deliberative process, see Coastal States, 617 F.2d at 868; Vaughn II, 523 F.2d at 1146. In fact, the Supreme Court has clearly stated that
[our] emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of the agency to identify a specific decision in connection with which a memorandum is prepared.
Sears, 421 U.S. at 151 n.18 (emphasis in original).
Decisions in the District of Columbia Circuit have established that even if a disputed document is several years old when a FOIA suit is initiated and the document has not yet produced a final decision, there are circumstances in which disclosure would still impede the decisionmaking process and therefore not be required, Brinton, 636 F.2d at 605. Similarly, an agency's rejection of the recommendations in a withheld document, either explicitly or implicitly through agency inaction, does not make otherwise predecisional documents final and disclosable, Common Cause v. Internal Revenue Service, 207 U.S. App. D.C. 321, 646 F.2d 656, 659 (D.C. Cir. 1981); Brinton, 636 F.2d at 600; Lead Industries, 610 F.2d at 84.
Plaintiffs contend that because many of the disputed documents evaluate past agency actions, they cannot be pre-decisional. The District of Columbia Circuit recently held, however, that "discussion of the merits of past efforts, alternatives currently available, and recommendations as to future strategy" are privileged if the documents bear sufficient indicia that they were part of the deliberative process, ITT World Comm., 699 F.2d at 1237. The documents at issue here bear all of the indicia of pre-decisional documents identified in prior cases -- they were all written by subordinates to superiors, see Coastal States, 199 U.S. App. D.C. 272, 617 F.2d 854; the authors had no decisionmaking authority, see Taxation With Representation Fund v. Internal Revenue Service, 207 U.S. App. D.C. 331, 646 F.2d 666, 679 (D.C. Cir. 1981); and the opinions expressed therein did not explain agency policy or establish agency guidelines or "secret law", see Jordan v. United States Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978). Instead, the documents at issue, which evaluate and criticize past agency action, are intended to contribute to the process of changing agency procedures. In Sears, the Supreme Court, after stating that documents may be predecisional even if they do not support a specific and identifiable decision, stressed the importance of protecting the agency self-evaluation process:
Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process.
Sears, 421 U.S. at 151 n.18. Documents generated pursuant to agency self-evaluation and improvement programs similar to MSHA's program have been held protected by the deliberative process privilege, especially when the purpose of the program was to investigate accidents to prevent their reoccurrence and to improve agency safety promotion procedures, see Cooper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977) (documents generated during aircraft accident investigation conducted as part of Navy safety program held exempt); Brockway v. Department of Air Force, 518 F.2d 1184 (8th Cir. 1975) (Air Force post-accident safety investigation documents exempt). In both Cooper and Brockway, the agency's safety investigations were conducted not to assist decisionmakers in making a final, specific decision, but to improve general agency accident prevention procedures. The Cooper and Brockway courts held that disclosure of the sensitive evaluations, opinions, and criticisms contained in the accident reports would stifle frank expression to the detriment of the safety program and its ultimate aim of preventing accidents.
The same is true here.
Given the foregoing discussion of applicable precedent, the court finds that each of the documents at issue in this case falls within the protection of Exemption 5. Without exception, the documents were generated pursuant to a well established MSHA program designed to improve the enforcement of mine safety laws and regulations. They were all written by agency personnel without decisionmaking authority, and were directed to superiors to assist in the location of problem areas and the development of properly tailored program improvements. They contain the personal opinions, evaluations, or recommendations of agency staff, information which can be utilized or ignored by agency decisionmakers. None of the documents contain MSHA's official view on any issue. MSHA's affidavits describe in detail how each document was or may be utilized and how it fits into the agency's deliberative process. Disclosure of these documents would clearly impede the frank criticism of MSHA enforcement procedures necessary to pinpoint problem areas after major accidents so that preventive changes can be made. Further, public disclosure of low level evaluations and recommendations might mislead the public as to agency policy, and might create counterproductive pressure on superior decisionmakers to adopt unwise or untested recommendations. Sensitive post-disaster evaluations of agency policy designed to improve future enforcement procedures and prevent future accidents are exactly the kind of documents that need to be protected if MSHA's potentially beneficial self-evaluation and improvement program is to be effective. This court may not interfere in the operation of that program by requiring disclosure of the documents at issue, Sears, 421 U.S. at 151 n.18.
C. Segregability of Factual Material
Although MSHA has met its burden of demonstrating that the documents at issue fall within the deliberative process exemption, the agency must further demonstrate that the withheld documents contain no reasonably segregable factual material, which must be disclosed unless to do so would compromise the private remainder of the documents, EPA v. Mink, 410 U.S. 73, 88-91, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1077-78 (D.C. Cir. 1970); see also Montrose Chemical Corp. of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63, 67-71 (D.C. Cir. 1974). For purposes of this segregability requirement, the District of Columbia Circuit has drawn a rough distinction between documents which are primarily evaluative, analytical or recommendatory, from which factual material need not be disclosed if it is inextricably intertwined, Brinton, 636 F.2d at 606; see also Cooper, 558 F.2d at 278; Brockway, 518 F.2d at 1192-93, and documents which are "subjective" only because the author has chosen which facts are important or which issues to highlight. All factual material in documents of the latter variety must be disclosed unless the agency can demonstrate that the document supports a specific, identifiable decision, that revelation of the factual material would reveal aspects of the agency's decisionmaking process, and that the factual material at issue is available to the public in some other, albeit less convenient, form, ITT World Comm., 699 F.2d at 1239; Playboy Enterprises, Inc. v. Department of Justice, 219 U.S. App. D.C. 343, 677 F.2d 931, 935 (D.C. Cir. 1982); Cf. Montrose, 491 F.2d at 68.
The court need not always review the disputed documents in camera to determine if the agency has properly segregated and disclosed all factual material. Here such review is unnecessary since the agency's affidavits are clear and detailed, and the agency has already demonstrated its good faith by attempting to segregate non-exempt material from most of the documents at issue, disclosing portions of documents 11-18 and 20. The withheld portions of documents 11-18 and 20, as described in the agency's affidavits, are comprised of the personal opinions, evaluations, or recommendations of non-decisionmaking officials. The court finds that in camera review of documents 11-18 and 20 is unnecessary, and holds that the agency has properly segregated factual material from these documents since the affidavits establish that portions have already been disclosed and, as discussed above, the material still withheld has been shown to fall under the protection of the deliberative process privilege, see Lead Industries, 610 F.2d at 70, Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692, 698 (D.C. Cir. 1977).
The agency did not disclose any of documents 9, 10, 19 or 21. Again, the court finds that in camera review of these documents is unnecessary to determine if they contain any segregable factual material. The agency must carry its burden of demonstrating that they have not withheld segregable factual material by submission of affidavits, and if the affidavits fail to satisfy the agency's burden, then the court is not required to undertake lengthy in camera review to make appropriate segregation decisions. In camera review should not act as a substitute for the agency's responsibility to justify nondisclosure of allegedly factual material, and the court may order disclosure of all material that appears from the affidavits to be factual and reasonably segregable, Mead Data, 566 F.2d at 260.
Proceeding on this basis, the court finds that there is no reasonably segregable material which must be disclosed from documents 9, 10, or 21, but that portions of document 19 must be disclosed. Documents 9 and 10 discuss inspection staff performance at the Ferrell mine site and make specific personnel and other recommendations for the improvement of staff performance. MSHA affidavits establish that these documents consist almost entirely of evaluations and recommendations, and MSHA asserts that the factual material contained therein is inextricably intertwined with the sensitive parts of the document, which the court has determined to be privileged. The court finds that MSHA has established the impossibility of segregating factual information from privileged opinion in these documents in a manner which would not compromise the privileged portions since MSHA's affidavits show that the documents consist primarily of privileged opinion. The need to ensure that there be a free flow of adverse comments after an accident which might have been due to inspector error -- even if those comments contain some factual information -- has been recognized as a legitimate basis for non-disclosure of such comments in a context almost identical to this case, see Cooper, 558 F.2d at 278; Brockway, 518 F.2d at 1193.
The same considerations apply to document 21, which was prepared with the help of the comments contained in documents 9 and 10. Document 21 contains the author's critical assessment of MSHA's inspector training program, and concludes with several recommendations for improvement. MSHA's affidavits establish that the document is entirely evaluative and recommendatory, and the court holds that MSHA has met its burden of demonstrating that it contains no reasonably segregable factual material which could be disclosed without revealing privileged information.
Document 19, however, falls into a different category, and from MSHA's own description contains material which is reasonably, and easily, segregable. The document, which has been withheld in full, is a 116 page compilation of two to four reports, written on agency-provided forms.
Each form discusses a discrete subject or problem regarding MSHA inspection or enforcement efforts, and many of the subjects are fairly technical. The top half of the first page of each form contains a series of boxes, to be filled in by the author with personal identifying information (name of author, names of officials interviewed, etc.). In addition, the form has three other boxes entitled "Date", "Office and Activity Surveyed," and "Observation." Although the balance of each report form contains spaces for the author's candid, unofficial criticisms, comments and recommendations -- and is properly withheld for the reasons discussed above -- it appears that information in the "Date", "Office and Activity Surveyed," and "Observation" sections is easily segregable factual material.
MSHA has styled the "Observation" section as the "author's opinion regarding the existence of a problem and the nature of the alleged problem." Although all observations are concededly infused with the observer's subjective perceptions, the court does not believe that this changes "observations" to "opinions" in all contexts. The court finds it unlikely that short field "reports" contain no factual information, especially when a separate section is provided on a form for "observations", and is followed by subsequent sections for comments and recommendations. While the inspectors who filed these reports may have chosen to report only observations which they considered noteworthy -- because indicative of a possible problem or an especially commendable situation -- such agency staff selection and weighing of certain information from a larger pool does not turn selected observations into protected "opinions". This is especially true when factual information is being compiled for general future use, as here, instead of for use in arriving at a specific final decision, see ITT World Comm., 226 U.S. App. D.C. 67, 699 F.2d 1219. In short, because of the structure of the agency's report form and other contextual evidence, the court is not persuaded by the agency's assertion that information in the sections entitled "Observation" is not factual, but representative of the author's opinions. The agency having failed to carry its burden of demonstrating that it has disclosed all reasonably segregable factual material from document 19, the "Date", "Office and Activity Surveyed," and "Observation" sections of each report therein must be disclosed. Disclosure of the information contained in these sections will be quite simple because the natural divisions provided by the agency's forms will eliminate the problem of trying to pluck out factual material from protected material, a problem presented in some cases involving divisionless memoranda containing intertwined factual material.
To summarize, the court holds that MSHA has demonstrated that the disputed documents are privileged under FOIA Exemption 5, and that the agency has segregated and disclosed factual material as required with respect to all disputed documents except document 19. The defendant's motion for summary judgment is therefore granted with regard to all documents except for document 19, which is ordered disclosed in part as directed in the accompanying Judgment and Order.
JUDGMENT AND ORDER
This matter comes before the court on the parties' cross-motions for summary judgment. After reviewing the memoranda submitted by the parties, and the entire record herein, it is, by the court, this 21st day of October, 1983, hereby
ORDERED, ADJUDGED and DECREED that defendants' motion for summary judgment is granted with respect to all documents at issue except document 19; and it is further
ORDERED, ADJUDGED and DECREED that plaintiffs' motion for summary judgment is denied with respect to all documents at issue except document 19; and it is further
ORDERED that defendant shall immediately disclose the sections of each report which comprises document 19 entitled "Date", "Office and Activity Surveyed," and "Observation", and may withhold the remainder of the document.