UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PERFORMANCE COAL COMPANY )
and ALLEN GUTHRIE & THOMAS, )
PLLC, )
)
Plaintiffs, ) Civil Case No. 10-1698 (RJL)
)
v. )
)
U.S. DEPARTMENT OF LABOR and )
MINE SAFTEY AND HEALTH )
ADMINISTRA TION, )
)
Defendants. )
MEM~DUM OPINION
(Marchf, 2012) [#28, #34, #42, #43]
Plaintiffs Performance Coal Company ("Performance Coal") and Allen Guthrie &
Thomas, PLLC (collectively, "plaintiffs") bring this action against the Department of
Labor ("DOL") and the Mine Safety and Health Administration ("MSHA") (collectively,
"defendants") for failure to disclose information pursuant to the Freedom of Information
Act ("FOIA"). Plaintiffs seek material to determine comprehensively the cause of a
,
catastrophic accident at Performance Coal's Upper Big Branch Mine and to prevent a
recurrence. Before this Court are defendants' Motion for Summary Judgment in Part,
defendants' Motion for Summary Judgment in Part Regarding the Comprehensive Mine
Request, and plaintiffs' Cross-Motions for Partial Summary Judgment. After due
consideration of the parties' pleadings, the relevant law, and the entire record herein,
defendants' motions are GRANTED and plaintiffs' motions are DENIED.
BACKGROUND
PlaintiffPerfonnance Coal is a corporation that operates the Upper Big Branch
Mine ("the Mine"), which is located in Raleigh County, West Virginia. Amended
CompI. ("Comp!.") ~ 4, Dec. 27, 2010. Massey Energy Company ("Massey") owns the
Mine. See Declaration of Joseph 1. Plick ("Plick Decl.") ~ 4, Ex. 11 to Defs.' Mot. for
Summ. J. ("Defs.' Mot."), May 9, 201l. Plaintiff Allen Guthrie & Thomas, PLLC is a
law finn located in Charleston, West Virginia that represents Performance Coal and
submitted FOIA requests on behalf ofPerfonnance Coal in connection with that
representation. CompI. ~ 5.
On AprilS, 2010, an explosion occurred at the Mine killing twenty-nine miners
and injuring two others. Plick Decl. ~ 4. Plaintiffs submitted seven relevant FOIA
requests to MSHA requesting information related to the explosion. CompI. ~ 14; Ex. A,
F, I, M, 0, Q, T to Compl.
On May 11, 2010, plaintiffs submitted a FOIA request to MSHA seeking records
relating to rock dust samples taken from the Mine on March 15, 2010 (the "Rock Dust
Request"). Ex. A to CompI. Defendants released all responsive material to plaintiffs,
with the exception of one page, which DOL withheld pursuant to FOIA Exemption 7(C).
Supplemental Declaration of Lanesia Washington ("Supp. Washington Decl.") at ~ 6, Ex.
I-B to Defs.' Opp'n to PIs.' Cross-Mot. for Summ. J. ("Defs.' Opp'n"), Oct. 5,2011; Ex.
A-I to Defs.' Opp'n.
On May 11,2010, plaintiffs also made a comprehensive request (the
"Comprehensive Request") seeking all documents, including electronic correspondence,
2
photographs, calendar entries, recordings, and any other materials related to the Mine for
the time period of January 1, 2009 to April 5, 2010. Ex. F to CompI. MSHA released
5466 pages and withheld 237 pages in part pursuant to FOIA Exemptions 5 and 7(C).
Supp. Washington DecI. ,-r 6.
Additionally, on May 11,2010, plaintiffs submitted a FOIA request to MSHA
seeking records relating to submissions to the Mine Plan Approval System ("MP AS")
(the "MPAS Request"). CompI.,-r 28; Ex. F to Compi. MSHA released all responsive
materials with the exception of one page in full, which it withheld pursuant to FOIA
Exemption 7(A). See Declaration ofLanesia Washington ("Washington Decl."),-r 21, Ex.
1 to Defs.' Mot., May 6, 2011; Ex. 8 to Defs.' Mot.; Ex. 13 to Defs.' Mot.
On June 14, 2010, plaintiffs submitted a FOIA request to defendants seeking
records relating to "methane outbursts" or other unplanned accidents that took place on or
about July 3, 2003 and February 18,2004 (the "Methane Outburst Request"). Ex. I to
CompI. MSHA released all documents pertaining to the request, excluding the 106 pages
MSHA withheld in part pursuant to FOIA Exemption 7(C). See Defs.' Opp'n at 3; Ex.
C-l to Defs.'s Opp'n; Supp. Washington Decl. ,-r 6; Ex. C to Defs.' Mot.
On June 23, 2010, plaintiffs submitted a FOIA request to MSHA seeking records
relating to a MSHA investigation into a January 4, 1997 methane/air explosion (the
"Methane/Air Explosion Request"). Ex. M to CompI. Defendants released all responsive
documents pertaining to the request, with the exception of six pages that MSHA withheld
in part pursuant to FOIA Exemption 7(C). Defs.' Opp'n at 4; Ex. D-l to Defs.'s Opp'n;
Supp. Washington DecI. ,-r 6; Washington Decl. ,-r 31.
3
On June 23, 2010, plaintiffs submitted a FOIA requests seeking records relating to
bottle samples taken at the Mine (the "Bottle Samples Request"). Ex. 0 to CompI.
Defendants released all documents pertaining to the request, except for 168 pages, which
MSHA withheld in part pursuant to FOIA exemption 7(C). Defs.' Opp'n at 4; Ex. E-I to
Defs.' Opp'n; Supp. Washington DecI. ~ 6; Washington DecI. ~ 40.
On August 18, 2010, plaintiffs submitted a FOIA request seeking records related
to a memorandum (the "Wagner Memorandum") provided to the media by MSHA on or
about July 20, 2010 (the "Wagner Request"). Ex. Q to CompI. On January 28, 2011,
plaintiffs narrowed the scope of the request to records relating to communications
between MSHA and DOL about topics discussed in the Wagner Memorandum. Ex. 5 to
Defs.' Mot. On April 8, 2011, DOL released thirty-eight pages in full, withheld fifty
pages in part, and withheld 284 pages in full, pursuant to FOIA Exemptions 5 and 6. See
Plick DecI. ~ 17. On September 30, 2011, DOL released an additional 97 pages in full
and three pages in part, but continued to withhold the remaining pages in full pursuant to
FOIA Exemption 5. See Supplemental Dedaration of Joseph J. Plick ("Supp. Plick
Decl,") ~~ 7-9, Ex. 9 to Defs.' Opp'n; Ex. 0-1 to Defs.' Opp'n.
On November 9,2010, plaintiffs submitted a FOIA request to MSHA seeking a
"time line prepared by MSHA of the events at Performance Coal Company's" mine and
"a transcript of or notes about an interview of Bob Hardman with investigators" (the
"Hardman Request"). Ex. T to CompI. On April 8, 2011, MSHA released in part a
fifteen-page handwritten log of events that occurred at the Mine on April 5, 2010,
pursuant to FOIA Exemption 7(C), and withheld 239 additional pages in fulI pursuant to
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FOIA Exemptions 7(A) and 7(C). Ex. G to Defs.' Mot.; Washington Decl. ~ 46; Supp.
Washington Decl. ~ 6.
On December 27, 2010, plaintiffs filed an amended complaint against defendants,
alleging they had failed to comply with FO IA. Docket Entry 15. On May 9, 2011,
defendants filed a motion for summary judgment in part contending that they fulfilled
their FOIA obligations. Def.'s Mot. at 2. On June 9, 2011, plaintiffs filed a cross-motion
for partial summary judgment, asserting that defendants have not shown that they
conducted adequate searches for responsive documents, did not reasonably segregate
non-exempt information from statutorily exempt information, and did not establish that
any of the exemptions claimed were appropriate. See PIs.' Opp'n to Defs.' Mot. ("PIs.'
Opp'n") at 3, June 9, 2011. On July 15,2011, defendants filed a motion for summary
judgment in part regarding the comprehensive mine request, contending that it fulfilled
its FOIA obligations. See Defs.' Mot. for Summ. 1. (Comprehensive Mine Request)
("Defs.' CMR Mot.") at 2, July 15,2011. On August 22, 2011, plaintiffs filed a cross-
motion for partial summary judgment, asserting that defendants have not shown that they
conducted adequate searches for responsive documents, did not reasonably segregate
non-exempt information from statutorily exempt information, and did not establish that
any of the exemptions claimed were appropriate. See Pl.'s Opp'n to Defs.' CMR Mot.
("PIs.' CMR Opp'n") at 2, August 22,2011. For all the reasons set forth below, I
disagree and GRANT summary judgment in favor of defendants.
5
ANALYSIS
1. Summary Judgment Standard
"When assessing a motion for summary judgment under FOIA, the Court shall
determine the matter de novo." Judicial Watch, Inc. v. Us. Dep 't of Homeland Sec., 598
F. Supp. 2d 93,95 (D. D.C. 2009) (citing 5 U.S.c. § 552(a)(4)(B)). Summary judgment is
appropriate when the record demonstrates that there is no genuine issue of material fact in
dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The moving party bears the burden, and the court will draw "all justifiable
inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Nevertheless, the non-moving party "may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial." Id. at 248 (internal quotations omitted). Factual
assertions in the moving party's affidavits may be accepted as true unless the opposing
party submits its own affidavits, declarations, or documentary evidence to the contrary.
Neal v. Kelly, 963 F .2d 453, 456 (D.C. Cir. 1992).
In a FOIA action, an agency must "demonstrate beyond material doubt that its
search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena
v. Us. Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't ofState,
897 F.2d 540, 542 (D.C. Cir. 1990)). To meet its burden, the agency may submit
affidavits or declarations that explain in reasonable detail the scope and method of the
agency's search, which, in the absence of contrary evidence, are sufficient to demonstrate
an agency's compliance with FOIA. See Perry v. Block, 684 F.2d 121, 126-27 (D.C. Cir.
6
1982) (per curiam).
Further, with respect to an agency's non-disclosure decisions, the court may rely
on affidavits or declarations if they describe "the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls
within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). Such affidavits or declarations are "accorded a presumption
of good faith, which cannot be rebutted by purely speculative claims about the existence
and discoverability of other documents." Safe Card Servs., Inc. v. SEC, 926 F .2d 1197,
1200 (D.C. Cir. 1991) (internal quotation omitted). "Ultimately, an agency's justification
for invoking a FOIA exemption is sufficient ifit appears logical or plausible." Wolfv.
CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (internal quotations omitted).
11. Adequacy of the Searches
An agency's search is adequate if its methods are reasonably calculated to locate
records responsive to a FOIA request. See Oglesby v. us. Dep 't of the Army, 920 F.2d
57, 68 (D.C. Cir. 1990). An agency need not search every records system so long as it
conducts "a reasonable search tailored to the nature of a particular request." Campbell v.
us. Dep't ofJustice, 164 F.3d 20, 28 (D.C. Cir. 1998). Indeed, "the adequacy ofa FOIA
search is generally determined not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search." Iturralde v. Comptroller of the Currency,
315 F.3d 311, 315 (D.C. Cir. 2003) (internal citation omitted); see Hornbostel v. Us.
Dep 't of the Interior, 305 F. Supp. 2d 21,28 (D.D.C. 2003).
7
Here, the procedures described in the Washington Declarations and Plick
Declaration explain in reasonable detail the scope and method of the DOL's and MSHA's
searches, and sufficiently demonstrate their compliance with FOIA's search
requirements. See Washington Decl. ~~ 9-47; Plick Decl. ~~ 11-16; Campbell, 164 F.3d
at 28; Perry, 684 F.2d at 127. MSHA has twelve Coal Safety and Health District offices
and six metal/nonmetal district offices throughout the country. Washington Decl. ~ 9.
District 4 regulates mines within the southern portion of West Virginia, which includes
the Mine. Jd. ~ 10. The Mt. Hope National Air and Dust Laboratory ("National Lab")
analyzes dust and air samples from all of the MSHA's district offices. Jd. District 4 and
the National Lab were identified as the offices that maintained potentially responsive
records, and both searched their electronic and paper files for responsive records related
to plaintiffs' FOIA requests. Jd. ~~ 10,13,17-21,24-26,30,34-38,42-44,45; Supp.
Washington Dec!. ~~ 19-22. Additionally. District 4 and the National Lab collected
responsive documents that were located in storage at the National Archives and Records
Administration. Washington Decl. ~~ 22-25, 36-39. The collected pages were reviewed,
processed and disclosed, when possible, to plaintiffs. Washington Decl. ~~ 14,21, 26-27,
31,40,46; Supp. Washington Decl. ~~ 23-25.
Further, specifically with respect to the MP AS Request and Comprehensive
Request, MSHA instructed its Program Evaluation and Information Resources ("PEIR")
Office, which is responsible for all ofMSHA's enterprise-wide automated information
systems, data communications, and automatic data processing equipment, to conduct a
search of the MPAS electronic database-a system that keeps track of all mine plan
8
infonnation submitted by mine operators, actions taken, and approval or denial dates.
Washington Decl. ,-r,-r 9, 16, 18. All of the responsive material was processed and
disclosed, when possible, to plaintiffs. Id.,-r,-r 19-21.
Lastly, with respect to the Wagner Request, DOL, MSHA, and the Offices of the
Secretary, the Solicitor, and Public Affairs searched their electronic and paper files for
responsive records. Plick Decl. ,-r,-r 12-15. All responsive documents were then processed
and released, when possible, to plaintiffs. Id.,-r,-r 16-17.
Because DOL and MSHA searched electronic and paper records reasonably likely
to contain responsive documents, the searches were reasonably tailored to plaintiffs'
requests and therefore adequate. See Campbell, 164 F.3d at 28.
III. Segregability
An agency claiming that a document is exempt under FOIA must, after excising
the exempted information, release any reasonably segregable information unless the non-
exempt information is inextricably intertwined with the exempt information. Trans-Pac.
Policing Agreement v. Us. Customs Serv., 177 F .3d 1022, 1026-27 (D.C. Cir. 1999).
Here, the DOL and MSHA released all reasonably segregable non-exempt
material. As the Washington Declaration adequately states, "[a]ll reasonably segregable
portions of the records were released to plaintiffs after the appropriate exemptions were
applied to the documents," see Washington Decl. ~~ 15,28,32,41,47; Supp.
Washington Decl. ,-r 25, except where "any attempt at segregating the infonnation would
provide little or no infonnation value, because the material is inextricably intertwined,"
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see Washington Decl. ~ 50. 1 In the absence of contrary evidence or specific cites to
potentially unsegregated documents, the declarations are afforded the presumption of
good faith. See SafeCard Servs., 926 F.2d at 1200. Therefore, all reasonably segregable
non-exempt material has been released.
IV. FOIA Exemptions
Under the law of our Circuit "[i]f an agency's statements supporting exemption
contain reasonable specificity of detail as to demonstrate that the withheld information
logically falls within the claimed exemption and evidence in the record does not suggest
otherwise, ... the court should not conduct a more detailed inquiry." Dep 't of State
Larson, 565 F.3d 857, 865 (D.C. Cir. 2009). Here, plaintiffs challenge the defendants'
invocation of FOIA Exemptions 5, 7(A), and 7(C). Plaintiffs fail, however, to put forth
any evidence to counter the detailed explanations regarding these claimed exemptions.
Therefore, based on the Vaughn indices, Washington Declaration, Supplemental
Washington Declaration, and Plick Declaration, this Court finds, for the following
reasons, that defendants' justifications for invoking these FOIA exemptions are sufficient
under the law of our Circuit. See id. at 862.
A. FOIA Exemption 5
FOIA Exemption 5 exempts from disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for this
1 With respect to the Wagner request, all of the withheld documents were withheld as
work product pursuant to FOIA Exemption 5, and therefore "segregability is not
required." Judicial Watch, Inc. v. Dep 't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005).
10
exemption, a document "must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it." Dep 't of
the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1,8 (2001). Courts have
incorporated certain civil discovery privileges into Exemption 5, such as attorney-work
product, attorney-client privilege, and "deliberative process" privilege. See Nat 'I Labor
Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975); Coastal States Gas
Corp. v. Dep 't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Here, defendants assert
Exemption 5 to withhold records relating to communications between MSHA and DOL
about topics discussed in the Wagner Memorandum,2 see Supp. Plick Decl. ~~ 7-9; Ex.
0-1 to Defs.' Opp'n, and documents relating to the Comprehensive Request. See
Declaration of Lanesia Washington Regarding Comprehensive Request ("Comprehensive
Washington Decl.") ~~ 32,35, Ex. 1 to Defs.' CMR Mot., July 15,2011.
1. Attorney-Work Product
The attorney-work product doctrine protects records prepared by or for an attorney
in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Coastal
2 Plaintiffs contend that Exemption 5 does not apply because defendants shared a July
2011 press release relating to the Wagner Memorandum with the press and therefore
waived privilege as to documents relating to the Wagner Memorandum. See PIs.' Opp'n
at 3-5. Defendants, however, released all documents similar in form and content to the
July 2011 press release to plaintiffs. See Defs.' Opp'n at 20. The documents withheld by
defendants do not match the information in the July 2011 press release nor were they ever
disclosed to the public. See id.; Ex. 0 to Defs.' Mot. While public disclosure of
documents may lead to the waiver of the FOIA exemption, the plaintiff bears the initial
burden of showing that the requested information: (I) is as specific as the information
previously disclosed; (2) matches the information previously disclosed; and (3) was made
public through an official and documented disclosure. See Cottone v. Reno, 193 F.3d
550,554 (D.C. Cir. 1999); Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
Plaintiffs, however, have failed to meet this burden.
11
States Gas Corp., 617 F.2d at 864. The withheld materials listed in the Wagner Vaughn
Index were prepared by the Solicitor of Labbr,the top attorney at DOL, "in
contemplation of litigation that would result from investigations being conducted by DOl
and MSHA into the April 5, 2010 explosion." Plick Decl. ~~ 22-24. As clearly stated in
the Plick Declaration, the materials were withheld to protect records reflecting "mental
impressions, opinions, legal theories, notes, draft documents, that was either prepared by
the Solicitor of Labor, an agency attorney, or DOL officials and subordinates acting on
the Solicitor's behalf." Id. ~ 22; see Ex. G to Defs.' Mot. Thus, defendants properly
withheld these materials pursuant to Exemption 5.
2. Attorney-Client Privilege
The attorney-client privilege exempts from disclosure confidential
communications between a government attorney and a client agency that has sought the
attorney's advice. Mead Data Cent. v. Dep 't ofAir Force, 566 F.2d 242, 252-53 (D.C.
Cir. 1977). With respect to the Wagner Request, as sufficiently stated in the Plick
Declaration, "MSHA, the client agency, sought advice from the Solicitor of Labor about
the appropriate method to utilize in responding to Massey's allegations while ensuring
appropriate mine safety enforcement," and such discussions "were confidential
communications between high-level client agency officials and the Solicitor." Plick
Decl. ~ 28; see Ex. G to Defs.' Mot. Further, the "Solicitor advised MSHA and other
DOL officials and gave her opinion on the course of action to pursue based upon
confidential communications regarding Massey." Id. ~ 29. The documents withheld by
defendants contain these confidential communications. See Ex. G to Defs.' Mot.
12
With respect to the Comprehensive Request, defendants withheld from disclosure
information pertaining to advice sought from MSHA, the client agency, from agency
attorneys which were "captured in internal e-mail confidential communications and
settlement recommendation documents." Comprehensive Washington Decl. ~ 30.
Specifically, "these are e-mail communications between attorneys within the Office of
the Solicitor, and MSHA District Managers and inspectors discussing strategies about
matters that are at some stage of litigation." Id. ~ 31; see Ex. J to Defs. 'CMR Mot.
Thus, defendants properly withheld these confidential attorney-client agency
materials pursuant to Exemption 5.
3. Deliberative Process Privilege
The deliberative process privilege exempts from disclosure documents containing
deliberations comprising part of a process by which governmental decisions and policies
are made so long as they are "predecisional." Klamath, 532 U.S. at 8; Sears, 421 U.S. at
151-54. "[T]he ultimate purpose of this long-recognized [deliberative process] privilege
is to prevent injury to the quality of agency decisions." Sears, 421 U.S. at 151.
Defendants asserted the deliberate process privilege to withhold information that "is
predecisional and deliberative" and was "created as a result of the confidential intra-
agency e-mail exchanges, and deliberations, opinions, legal advice and inquiries
contained in e-mails, charts, and other draft documents." Plick Decl. ~ 31; see Ex. G to
Defs.' Mot.; Comprehensive Washington Decl. ~ 34. With respect to the Wagner
Request, as clearly stated by the Plick Declaration, "DOL and MSHA officials and staff
held numerous intra-agency meetings and discussions and exchanged e-mails in order to
13
determine the appropriate way to respond to Massey's allegations," and "[m]uch of the
information described in the Vaughn consists of deliberations over concepts and ideas
among DOL officials and MSHA staff." Plick Decl. ,-r 31.
With respect to the comprehensive request, defendants withheld information
relating to "recommendations regarding the potential assessment of fines against a miner
or referrals to federal prosecutors of miners for violations of safety hazards."
Comprehensive Washington Decl. ,-r 35. As clearly stated by the Washington declaration,
the "information is pre-decisional because the discussions and review concerning whether
a miner will eventually be referred for prosecution or assessments is currently ongoing"
and "[t]his information is considered to be highly sensitive and is kept internally within
MSHA and not shared with the mining community." Jd.; see Ex. J to Defs.' CMR Mot.
Here, the disclosure of any of the withheld information "could have a chilling
effect on open, frank communications between the Solicitor of Labor, MSHA and other
agency officials and subordinates." Plick Decl. ,-r 32; Comprehensive Washington Decl. ,-r
36. Therefore, defendants properly invoked Exemption 5 to protect these records.
B. FOJA Exemption 7(A)
Defendants withheld information under FOIA exemption 7(A), which protects
from disclosure "records or information compiled for law enforcement purposes" if
disclosure "could reasonably be expected to interfere with enforcement proceedings." 5
U.S.C. § 552(b)(7)(A). To justify withholding information pursuant to Exemption 7(A),
the agency must demonstrate that "disclosure (1) could reasonably be expected to
interfere with (2) enforcement proceedings that are (3) pending or reasonably
14
anticipated." Mapother v. Us. Dep't ofJustice, 3 F .3d 1533, 1540 (D.C. Cir. 1993).
Indeed, "an agency may invoke Exemption 7(A) to protect pending investigations or
actual enforcement proceedings." Kay v. F.CC, 976 F. Supp. 23, 37-38 (D.D.C. 1997).
The Supreme Court and our Circuit have upheld the withholding of documents pursuant
to Exemption 7(A) where, for example, disclosure would result in witness intimidation or
would reveal the scope and direction of an investigation, which could allow the target to
construct fraudulent defenses or alibis to avoid prosecution or destroy or alter evidence.
North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (collecting cases).
Here, with respect to the MP AS Request, MSHA has withheld one page of
information-specifically, one page of handwritten notes pertaining to ventilation at the
Mine-from disclosure pursuant to Exemption 7(A) to prevent any interference with an
ongoing criminal FBI investigation. Washington Decl. ~ 54; Declaration of James F.
Lafferty II ("Lafferty Decl.") ~~ 1-2, Ex. 3 to Defs.' Mot., May 5, 2011; Ex. B to Defs.'
Mot., May 9, 2011. As the Lafferty Declaration clearly states, "public disclosure of
[these notes] could reasonably be expected to harm the FBI's investigation by (i)
revealing the content of potential testimony and Oi) revealing information about the likely
scope, direction, or focus of the criminal investigation." Lafferty Decl. ~ 4. Because
"[p ]rematurely revealing the content of this 'potential testimony could give important
infonnation to potential witnesses or defendants that would allow them to construct false
testimony or otherwise falsify or alter evidence," id., defendants properly asserted
Exemption 7(A) with respect to this one-page document. See North, 881 F.2d at 1097.
Additionally, in response to the request for transcripts and notes of the Hardman
15
interview, DOL invoked Exemption 7(A) to withhold 239 pages in full to protect ongoing
investigations and enforcement proceedings. See Declaration of Norman Page ("Page
Decl. ") ,-r,-r 4, 7, Ex. 2 to Defs.' Mot., May 5, 2011; Ex. F to Defs.' Mot; Supp.
Washington Decl. ,-r 6. The interview statements "address MSHA's immediate response
upon notification of the accident at the Upper Big Branch mine, MSHA's ventilation plan
approval process at the Upper Big Branch mine, including recent failures by the operators
to follow the ventilation, methane and dust control plans at Upper Big Branch mine, and
Mr. Hardman's knowledge and comments pertaining to the 2003 and 2004 methane
outburst incidents." Page Decl. ,-r 7. Premature disclosure "of the interview transcripts of
Robert Hardman may cause an adverse impact to the ongoing enforcement proceedings
as the cause or causes of the disaster are investigated." Id.,-r 8. Further, as the Page
Declaration sufficiently states, "[r]eleasing the transcript of a key witness such as Mr.
Hardman, before other witnesses are called back or interviewed for the first time, may
compromise the integrity of the investigation as these witnesses would have access to Mr.
Hardman's information and conclusions on enforcement activities at the Upper Big
Branch Mine." Id. Because the defendants asserted Exemption 7(A) to prevent
interference from ongoing investigations and enforcement proceedings, defendants
properly asserted the Exemption. See North, 881 F .2d at 1097; Nat 'I Labor Relations Bd.
v. Robbins Tire & Rubber Co., 437 U.S. 214, 243 (1978) (holding that the release
statements of witnesses would necessarily interfere with enforcement proceedings).
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C. FOIA Exemption 7(C)
Exemption 7 applies to "records or information compiled for law enforcement
purposes" if disclosure of such records would lead to one of various enumerated harms.
5 U.S.c. § 552(b)(7). Exemption 7(C), in particular, protects information that "could
reasonably be expected to constitute an unwarranted invasion of personal privacy." 5
u.S.C. § 552(b)(7)(C). Thus, in determining the applicability of Exemption 7(C), the
Court must balance the interests advanced by FOIA's disclosure requirements against the
privacy interests of the individuals mentioned in the records. Beck v. Dep 'f of Justice,
997 F.2d 1489, 1491 (D.C. Cir. 1993). "Because the FOIA is concerned with the right of
the general public to know what their government is up to, the identity and interest of the
party requesting the document are irrelevant to this balancing." Mays v. DEA, 234 F.3d,
1324, 1327 (D.C. Cir. 2000).
Here, defendants asserted Exemption 7(C) to withhold information clearly
compiled for "law enforcement purposes." See 5 U.S.C. § 552(b)(7). As the Washington
Declaration states, defendants are withholding from documents that were "compiled for
law enforcement purposes,,3 miners' names, cell phone numbers, and home phone
numbers; inspectors' names and e-mail addresses;inspectors.initials; MSHA employees'
government issued cell phone numbers, home addresses, and home telephone numbers;
third party home addresses, dates of birth, last four digits of social security numbers; and
miners' job titles and ethnicities. Washington Decl. ~ 63; Page Decl. ~ 6; see Ex. A-I, B-
3Specifically, the documents were compiled for law enforcement activities related to the
2003 and 2004 methane outburst incidents and the 2010 disaster. See Page Decl. ~ 5;
Washington Decl. ~ 63.
17
1, C-1, D-1, E-1, F-1, H to Defs.' Opp'n; Ex. G to Defs.' Mot.; Ex. H-J to Defs.' CMR
Mot. Defendants withheld this information to protect the inspectors, government
employees, and miners from "harassment, intimidation and the possibility of physical
harm" and to prevent "an unwarranted invasion of [their] personal privacy." Washington
Dec!. ~ 64; see Comprehensive Washington Decl. ~ 38. As there is no public interest
asserted by plaintiffs that outweighs such a substantial privacy interest, see Mays, 234
FJd at 1327, defendants correctly withheld the information under Exemption 7(C).4
CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendants' motions for
summary judgment [#28 and #42] and DENIES plaintiffs' cross-motions for summary
judgment [#34 and #43]. An Order consistent with this decision accompanies this
Memorandum Opinion.
•
United States DIstrict Judge
4Plaintiffs' motion to conduct discovery pursuant to Fed. R. Civ. P. 56(f) is denied. See
Brunsilius v. Dep 'f of Energy, 514 F. Supp. 2d 30, 36 n.2 (D.D.C. 2007) ("Discovery is
generally inappropriate in a FOIA case."); Voinche v. F.B.I., 412 F. Supp. 2d 60,71
(D.D.C. 2006) ("FOIA actions are typically resolved without discovery.").
18