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Utahamerican Energy, Inc. v. Mine Safety and Health Administration

July 23, 2010


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Utahamerican Energy, Inc. ("UEI") brings this action against the Mine Safety and Health Administration ("MSHA"), alleging a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, arising out of UEI's request for documents regarding the Crandall Canyon Mine. The parties have filed cross-motions for summary judgment. Because MSHA's search for documents construed too narrowly UEI's request and was not reasonably likely to locate all responsive documents, the parties' cross-motions for summary judgment will be denied without prejudice to refiling after MSHA conducts an adequate search for responsive documents.


On August 6, 2007, the Crandall Canyon Mine ("the mine") in Huntington, Utah, partially collapsed, killing six miners. During a rescue mission ten days later, the mine partially collapsed for a second time, killing three rescuers. (Pl.'s Stmt. of Material Facts as to Which There Is No Genuine Issue ("Pl.'s Stmt.") ¶ 1.) Genwal Resources, Inc., a subsidiary of UEI, operated the mine. (Am Compl. ¶ 2.) In response to the collapses, several government entities began investigating the events leading to the accidents, the accidents themselves, and the rescue process. The Office of the Inspector General ("OIG") at the U.S. Department of Labor ("DOL"), the Chairman of the U.S. Senate Committee on Health, Education, Labor and Pensions ("Senate Committee"), and the Chairman of the U.S. House of Representatives Committee on Education and Labor ("House Committee") all conducted investigations. (Pl.'s Stmt. ¶ 2.)

Each sought documents from MSHA. OIG requested documents from 2006 and 2007 relating to inspections completed at the mine, hazardous condition complaints received about the mine, and safety citations issued at the mine, and documents without date restriction related to MSHA's approval of mining at the Crandall Canyon site. (Def.'s Mem. of P. & A. in Opp'n to Pl.'s Cross-Motion for Summ. J. and in Reply to Pl.'s Opp'n to Def.'s Mots. for Partial Summ J. ("Def.'s Opp'n & Reply"), 2d Suppl. Silvey Decl., Attachs. Referenced in ¶ 3, Lewis Mem. at 1-2.) The Senate Committee requested, among other information, all documents stored in a comprehensive file about the mine, documents relating to petitions for changes to mine plans, information relating to inspections of the mine, documentation of meetings and communications between MSHA officials and various energy companies, Crandall Canyon mine maps and plans beginning in 2004, and other documents about the mine from 2006 and 2007. (Id., Attachs. Referenced in ¶ 3, Kennedy Letter at 3-7.) Following up on its initial request, the Senate Committee also requested documents relating to MSHA's emergency response and rescue effort. (Id., Kennedy and Murray Suppl. Letter.) The House Committee requested documentation of communications between DOL, of which MSHA is part, and representatives of various energy companies beginning in 2001; minutes from those meetings; mine records in a specific database relating to events between 2001 and 2007; the employment record of the MSHA District Manager for the district in which the mine was located; and any complaints made to DOL about the mine beginning in 2001. (Id., Attachs. Referenced in ¶ 3, Miller Letter at 1-2.) Following up on its initial request, the House Committee also requested documents related to DOL's role in the rescue efforts. (Id., Miller Suppl. Letter.) The House Committee subpoenaed all documents regarding communications related to the mine beginning in March 2006 and communications between the CEO of the company that owns the mine and various DOL officials. (Id., Attachs. Referenced in ¶ 3, Subpoena Schedule ¶¶ 1-2.)

On September 25, 2007, UEI sent a letter to MSHA requesting documents under FOIA. UEI asked that MSHA produce "[a]ny and all documents in the actual or constructive possession of [MSHA]," including emails, "which relate in any way to the Crandall Canyon Mine[.]" (Pl.'s Stmt. ¶ 9; Am. Compl., Ex. A.) UEI also requested that MSHA produce all documents that related in any way to the two accidents at the mine, and which had been or would be forwarded to the Senate Committee, House Committee, or OIG. (Id.)

"[S]hortly before MSHA received UEI's September 25, 2007 FOIA request, MSHA had already initiated a search for [non-email] documents that included those requested by UEI as part of MSHA's efforts" to respond to the OIG and Congressional investigations. (Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Partial Summ. J., Docket #18 ("Def.'s Non-email Mem."), Silvey Decl. ¶ 10.) The agency sent "[e]-mail requests to the affected Coal Mine Safety and Health Districts and other MSHA program areas that may have had responsive documents[.]" (Id. ¶ 10.) MSHA also sent emails to appropriate managers and other individuals asking for documents concerning the mine, and it followed up with "key district contacts" to complete the search process. (Id.) Two days before MSHA's response to UEI's request was due, UEI contacted MSHA on the status of its request and offered to receive a partial response as an interim measure. (Pl.'s Stmt. ¶ 10.) After several exchanges, UEI and MSHA agreed to a partial disclosure of documents relating to the mine, including the portion that MSHA had submitted previously to the Senate Committee, pending the continued processing of UEI's request. (Id.; Am. Compl., Ex. B.) Three months later, MSHA produced the partial documents promised as an interim measure and redacted information in those documents under various FOIA exemptions. (Pl.'s Stmt. ¶ 11; Am Compl., Ex. C.) However, MSHA did not provide an index or any specific explanation as to what documents were redacted or why.*fn1 (Am. Compl., Ex. C.)

In addition to its search for non-email documents, MSHA initiated its search on September 28, 2007 for emails related to the mine accidents in response to the House Committee subpoena before it received UEI's FOIA request. (Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Partial Summ. J., Docket #23 ("Def.'s Email Mem."), Silvey Suppl. Decl. ¶ 7.) The agency's "Office of Program Evaluation and Information Resources began a search for e-mails from all MSHA employees identified as having been involved 'either directly or indirectly with the Crandall Canyon event[,]'" using the terms "Crandall," "Murray," and "Agapito" to generate responsive documents.*fn2 MSHA instructed its officials to search for emails that related to the Crandall Canyon Mine accident without date limitations. (Id.) This search generated over 300,000 email results responsive to the Congressional subpoena. MSHA informed UEI of the large volume and high associated review costs of its email search result and proposed to UEI the possibility of negotiating a reduced email production. UEI agreed to limit the search for emails to MSHA officials Richard Stickler, Kevin Stricklin, and Allyn Davis.*fn3 (Id. ¶ 9.)

UEI brought this action complaining of improper redactions and incomplete production. MSHA has filed two motions for partial summary judgment, one with respect to all responsive documents except emails, and one with respect to emails,*fn4 arguing that it has conducted an adequate search in response to UEI's FOIA request and has disclosed all non-exempt documents responsive to UEI's request. UEI has filed a cross-motion for summary judgment, arguing that MSHA's search was inadequate and seeking "disclosure of additional responsive information MSHA has not produced or improperly continues to withhold from disclosure." (Pl.'s Cross-Mot. for Summ. J. & Opp'n to Def.'s Mots. for Partial Summ. J. ("Pl.'s Mot.") at 1.)


Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). The burden falls on the moving party to provide a sufficient factual record that demonstrates the absence of a genuine issue of material fact. See Beard v. Banks, 548 U.S. 521, 529 (2006). A court must draw all reasonable inferences from the evidentiary record in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to summary judgment if it demonstrates that no material facts are in dispute and that all information that falls within the class requested either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action. 5 U.S.C. § 552(a)(4)(B); see also Long v. Dep't of Justice, 450 F. Supp. 2d 42, 53 (D.D.C. 2006).

FOIA requires that government agencies make good faith efforts to conduct reasonable searches for all records that are responsive to FOIA requests. Baker & Hostetler LLP v. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). What constitutes a reasonable search will vary from case to case, Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990), but an agency must construe the scope of a request liberally. Nation Magazine, Wash. Bureau v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). An agency must demonstrate that its good faith search effort used "'methods which can be reasonably expected to produce the information requested.'" Baker & Hostetler LLP, 473 F.3d at 318 (quoting Nation Magazine, 71 F.3d at 890). A search's adequacy is not determined by its results, but by the reasonableness of the method, Casillas v. Dep't of Justice, 672 F. Supp. 2d 45, 48 (D.D.C. 2009), since "particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). An agency is entitled to use detailed non-conclusory affidavits or declarations that are submitted in good faith to show that the search it conducted in response to a FOIA request is adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551-52 (D.C. Cir. 1994) (stating that the affidavits or declarations must describe "what records were searched, by whom, and through what process"). "[I]nitial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later affidavits by the agency." Iturralde, 315 F.3d at 315. However, "'[w]here the agency's responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory, summary judgment in the government's favor would usually be inappropriate.'" Wilderness Soc'y v. Bureau of Land Mgmt., Civil Action No. 01-2210 (RBW), 2003 WL 255971, at *5 (D.D.C. Jan. 15, 2003) (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)).


UEI argues that MSHA's search was inadequate because it centered the search around the Congressional and OIG requests for documents, and not around UEI's FOIA request. (Pl.'s Mot. at 14.) MSHA responds that the searches in response to the Congressional and OIG requests were "extremely broad[,]" and that MSHA had already "'searched in the logical locations in which other documents responsive to UEI's request reasonably would be located.'" (Def.'s Opp'n & Reply at 4-5 (quoting 2d Suppl. Silvey Decl. ΒΆ 6).) However, MSHA began its search in response to the Congressional and OIG requests, and it did not modify the parameters of the ...

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