Adair v. Mine Safety and Health Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
LAINE ADAIR, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-1573 (EGS)
)
MINE SAFETY AND HEALTH )
ADMINISTRATION, )
)
Defendant. )
)
______________________________)

MEMORANDUM OPINION

Plaintiff Laine Adair brings this action against defendant

Mine Safety and Health Administration (“MSHA”), under the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552a, seeking to compel

the MSHA to comply with his FOIA request to produce a transcript

of his interview with MSHA investigators. Currently pending

before the Court is defendant’s motion for summary judgment.

After considering the motion, the response and reply thereto, the

applicable law, and the entire record, this Court GRANTS

defendant’s motion for summary judgment.

I. BACKGROUND

On August 6, 2007, a catastrophic collapse occurred at the

Crandall Canyon Mine in Price, Utah (the “Crandall Canyon Mine

accident” or “the accident”). Compl. ¶ 2. Six coal miners were

entombed in the mine and three others were killed during the
rescue efforts. Compl. ¶ 2.1 In September 2007, the MSHA,

pursuant to its statutory authority under the Federal Mine Safety

and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 801 et

seq.,2 appointed a team of MSHA employees to investigate the

accident. See Compl. ¶ 3. The principal purpose of the

investigation was to determine the cause or causes of the mine

disasters, “in an effort to prevent similar accidents from

occurring in the future.” Compl. ¶ 13. The investigation, which

was led by MSHA employee Richard Gates, sought interviews with

mine personnel, including plaintiff, who was General Manager of

UtahAmerican Energy, Inc. and Genwal Resources, Inc., the

companies that ran the Crandall Canyon Mine. Compl. ¶ 12.

As part of the MSHA’s investigation, Gates asked plaintiff

to submit to a sworn interview regarding the accident. Compl. ¶

13; see generally Pl.’s Opp’n Br., Ex. 1, Decl. of Gregory L. Poe

(“Poe Decl.”) (describing the negotiations between plaintiff’s

counsel and the MSHA regarding the terms of plaintiff’s

interview). Gates indicated that the interview would be under

oath and would be transcribed by a court reporter. Compl. ¶ 13.

He also agreed that plaintiff could request a copy of the

interview transcript, and stated that it would be “provided at a

1
For additional details regarding the mining accident, see
Paul Foy, Utah Mine Cave-In Traps Six; Miners' Condition Unknown
as Initial Rescue Attempt Fails, The Wash. Post, Aug. 7, 2007, at
A7.
2
The MSHA is authorized to investigate mine accidents and
impose both civil and criminal penalties for violations of health
and safety standards pursuant to the Mine Act.

2
later time.” Compl. ¶ 13. “Induced by MSHA’s promise that he

would receive a copy of the Transcript,” plaintiff was

interviewed on December 13, 2007. Compl. ¶ 14.

By letter dated February 4, 2008, plaintiff’s counsel

requested a copy of the December 13, 2007 interview transcript

(the “Transcript”). The MSHA denied this request several days

later, stating that “Mr. Adair’s statement will be provided at or

around the time that the accident investigation report will be

issued.” Compl. ¶ 16. Plaintiff requested further explanation

of the denial, but received no response from the MSHA. Compl. ¶

16.

On or about May 8, 2008, U.S. Representative George Miller,

Chairman of the Committee on Education and Labor in the U.S.

House of Representatives, referred plaintiff to the U.S.

Department of Justice for a criminal investigation regarding

whether plaintiff “willfully made materially false

representations on his own accord or as part of a conspiracy to

do the same” to the MSHA. Def.’s Statement of Material Facts,

Ex. 1, Decl. of Brett L. Tolman (“Tolman Decl.”) ¶ 3; see also

Compl. ¶ 3. Representative Miller’s criminal referral was

forwarded to the U.S. Attorney’s Office for the District of Utah

(“Utah USAO”) for investigation.

On July 24, 2008, two separate reports were released

regarding the Crandall Canyon Mine accident. The first report, a

product of the MSHA investigation under Gates (the “Gates

Report”), discussed the August 2007 mining accident. Compl. ¶

3
19. The Gates Report publicly announced that the MSHA was

imposing a penalty of $1.34 million on Genwal Resources for

violations that it found directly contributed to the deaths of

the six miners entombed in the Crandall Canyon Mine. Def.’s Mot.

Summ. J., Ex. 1, Decl. of Kevin G. Stricklin (“Stricklin Decl.”)

¶ 10.

The second report (the “Teaster Report”) was released by the

Department of Labor (“DOL”) and prepared by a team of DOL

employees led by Earnest Teaster, Jr. and Joseph Pavlovich

(“Teaster and Pavlovich”), two former MSHA managers. Compl. ¶

20. Teaster and Pavlovich were appointed as temporary DOL

employees to investigate the MSHA’s handling of the Crandall

Canyon Mine accident. See generally Def.’s Reply Br., Ex. 1,

Decl. of Andrea Burckman (“Burckman Decl.”) ¶ 2. The Teaster

Report, which was publicly available on the internet, contained a

one-sentence quote from the Transcript. Compl. ¶ 20.

Following the release of the Gates’ Report, on July 25,

2008, plaintiff renewed his request for a copy of the Transcript.

Compl. ¶ 21. The MSHA responded on August 1, 2008, stating that

the July 25 letter was being treated as a FOIA request and had

been forwarded to the MSHA’s FOIA officer. Compl. ¶ 22.

On September 8, 2008, the MSHA issued a press release

stating that it had made a criminal referral of certain issues

relating to the Crandall Canyon Mine accident to the Utah USAO.

Compl. ¶ 21. Plaintiff’s counsel then asked the Utah USAO to

produce the Transcript. Compl. ¶ 25. The Utah USAO denied the

4
request on the grounds that it needed to “protect the integrity”

of its investigation arising from the referrals of Representative

Miller and the MSHA. Compl. ¶ 25.

Plaintiff filed a complaint in this Court on September 12,

2008, seeking (i) a declaratory judgment that the MSHA violated

the FOIA and that plaintiff is entitled to receive the

Transcript, and (ii) immediate production of the Transcript. The

MSHA filed a motion for summary judgment on November 17, 2008,

arguing that FOIA Exemption 7(A) applies and that plaintiff’s

complaint should be dismissed in its entirety as a matter of law.

Defendant’s motion is ripe for decision.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986). A genuine issue is one where the “evidence

is such that a reasonable jury could return a verdict for the

non-moving party.” Id. at 252. A court considering a motion for

summary judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant. Id. at 255. To survive a

motion for summary judgment, however, the requester “must do more

5
than simply show that there is some metaphysical doubt as to the

material facts”; instead, the nonmoving party must come forward

with “‘specific facts showing that there is a genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 56(e)).

III. DISCUSSION

A. The FOIA and Exemption 7(A)

The FOIA requires that federal agencies release all

documents requested by members of the public unless the

information contained within such documents falls within one of

nine exemptions. 5 U.S.C. § 552(a),(b). These statutory

exemptions must be narrowly construed in favor of disclosure.

Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). While an

agency may deny a FOIA request when the information sought is

exempt from disclosure under the FOIA, 5 U.S.C. § 552(d), the

government bears the burden of justifying the withholding. U.S.

Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Coastal States

Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980). In

carrying its burden, an agency may rely on affidavits or

declarations “when the affidavits or declarations describe ‘the

documents and 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.’” Kenny v. U.S. Dep’t of Justice,

6
603 F. Supp. 2d 184, 187 (D.D.C. 2009) (quoting Military Audit

Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Summary

judgment is therefore appropriate when, viewing the facts in the

light most favorable to the requestor, there is no genuine issue

of material fact with regard to the agency’s compliance with the

FOIA. See Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551

(D.C. Cir. 1994).

The MSHA argues that it properly withheld plaintiff’s

transcript under Exemption 7(A) of the FOIA and is entitled to

judgment as a matter of law. Under Exemption 7(A), agencies may

withhold “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law

enforcement records or information . . . could reasonably be

expected to interfere with enforcement proceedings.” 5 U.S.C. §

552(b)(7)(A). “In enacting this exemption, ‘Congress recognized

that law enforcement agencies had legitimate needs to keep

certain records confidential, lest the agencies be hindered in

their investigations.’” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t

of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (quoting NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)). “The

principal purpose of Exemption 7(A) is to prevent disclosures

which might prematurely reveal the government’s cases in court,

its evidence and strategies, or the nature, scope, direction, and

focus of its investigations, and thereby enable suspects to

establish defenses or fraudulent alibis or to destroy or alter

7
evidence.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762

(D.C. Cir. 2000).

B. Public Disclosure of the Transcript

As a threshold matter, plaintiff argues that summary

judgment is premature, because “discovery is necessary to

determine whether MSHA already has released the transcript, in a

manner that undercuts MSHA’s reliance on Exemption 7(A).” Pl.’s

Opp’n Br. at 2. As discussed above, Exemption 7(A) applies if

the production of the requested document “could reasonably be

expected to interfere with enforcement proceedings.” 5 U.S.C. §

552(b)(7)(A). Accordingly, plaintiff argues that the risks

associated with the release of the Transcript “may have already

been run” if defendant (i) disclosed the Transcript to the

Teaster Review Team, and (ii) permitted a “crucial portion” of

the Transcript to be quoted in a public report. See Pl.’s Opp’n

Br. at 2, 6-7. Plaintiff therefore seeks “limited discovery” on

these issues.

Because defendant readily admits that (i) the Transcript was

disclosed to the Teaster Review Team, and (ii) a sentence from

the Transcript was quoted in a publicly available report, see

Def.’s Reply Br. at 2 (“MSHA does not dispute that the transcript

was provided to the [Teaster] Review Team or that the review team

quoted in its review of MSHA a single sentence from Mr. Adair’s

eight-hour testimony[.]”), the Court concludes that discovery on

these issues is unnecessary. Having determined that the alleged

8
disclosures did in fact occur, the Court will now address the

substantive issues underlying plaintiff’s discovery request: did

the MSHA negate the applicability of Exemption 7(A) by disclosing

the Transcript to the Teaster Review Team or by permitting a

quotation from the Transcript to be included in a publicly

available report?

1. Disclosure of the Transcript to the Teaster Review
Team

Plaintiff first argues that because the MSHA disclosed the

Transcript to the Teaster Review Team, “MSHA cannot now take

refuge in Exemption 7(A) and deny access to Adair.” Pl.’s Opp’n

Br. at 10. The crux of plaintiff’s argument is that the MSHA

waived its right to shield the Transcript from disclosure by

sharing the document with an “independent” review team. See

Pl.’s Opp’n Br. at 11-12 (discussing how the Teaster Review Team

was “independent of MSHA”). The Court must therefore determine

whether the MSHA’s release of the Transcript to the Teaster

Review Team was a public disclosure that waived the government’s

right to withhold the Transcript under Exemption 7(A).

A government agency may not use a FOIA exemption - including

Exemption 7(A) - to shield information that has already been

publicly disclosed. See Students Against Genocide, 257 F.3d 828,

836 (D.C. Cir. 2001) (“This Circuit has held that the government

may not rely on an otherwise valid exemption to justify

withholding information that is already in the ‘public domain.’”

(citations omitted)). This public domain doctrine only applies,

9
however, if the specific information sought was previously

disclosed and “preserved in a permanent public record.” Id. In

other words, the requested information must have been made “truly

public.” See Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999)

(“[W]e must be confident that the information sought is truly

public and that the requester receive no more than what is

publicly available before we find a waiver.”). As discussed

below, because the Teaster Review Team - although “independent”

from the MSHA - was in the same Department as the MSHA (i.e., the

DOL), see Compl. ¶ 8 (“Defendant MSHA is a federal agency within

the United States Department of Labor.”), plaintiff’s public

disclosure argument must fail.

The Teaster Review Team was created by former Secretary of

Labor Elaine L. Chao to conduct an internal review of the MSHA’s

actions with respect to the Crandall Canyon Mine accident. See

Def.’s Reply Br., Ex. 1, Decl. of Andrea Burckman (“Burckman

Decl.”) ¶ 2. The team was comprised entirely of DOL employees.

Specifically, two former MSHA employees, Teaster and Pavlovich,

were appointed to serve as DOL employees pursuant to 5 U.S.C. §

3109, as implemented in 5 C.F.R. § 304.101 et seq.,3 and were

assisted by five permanent DOL employees. See Burckman Decl. ¶¶

2-3 (“Former Secretary Chao selected [Teaster and Pavlovich] to

serve as experts to lead the [Teaster Review Team], assisted by

DOL employees.”); see generally Ex. C to Burckman Decl.
3
5 C.F.R. § 304.101 states that the regulation “appl[ies] to
the appointment of experts and consultants as Federal employees
under 5 U.S.C. 3109.”

10
(“Statement of Duties” for Pavlovich and Teaster). The purpose

of the Teaster Review Team was to develop recommendations “to

improve MSHA’s enforcement program and the agency’s oversight of

rescue and recovery programs in the aftermath of mine accidents.”

Ex. A to Burckman Decl., Press Release, U.S. Dep’t of Labor,

Labor Secretary Elaine L. Chao Announces Independent Review of

MSHA’s Actions at Utah’s Crandall Canyon Mine (Aug. 30, 2007).

Day-to-day direction of the Teaster Review Team was provided by

the DOL Office of the Solicitor - Division of Mine Safety and

Health, and the team’s findings and conclusions were reported to

the Deputy Secretary of Labor. See Ex. C to Burckman Decl.

Moreover, Teaster and Pavlovich were obligated to maintain the

confidentiality of any information that they received during

their review, and could only disclose information if authorized

by the DOL. See Ex. C to Burckman Decl. ¶¶ 8, 10 (requiring

Teaster and Pavlovich to “[m]aintain the confidentiality of any

information to which they may be given access, and not disclose

any such material or information without the authorization of the

[DOL]” and “[n]ot publish or disclose any report or draft, or

distribute the information related to or developed for this work,

unless authorized by the [DOL]”).

Accordingly, the Court concludes that the MSHA’s disclosure

of the Transcript to the DOL appointed and controlled Teaster

Review Team was an intra-agency sharing of information - not a

public disclosure. See generally Nat’l Inst. of Military Justice

v. United States, 512 F.3d 677, 679-84 (D.C. Cir. 2008) (broadly

11
interpreting “intra-agency” to include government employees and

contract consultants). Because the intra-agency sharing of

information is not a public disclosure for purposes of the FOIA,

see, e.g., Aviation Consumer Action Project v. Washburn, 535 F.2d

101, 108 (D.C. Cir. 1976) (declining to hold that “mere

disclosure of intra-agency memorandum to an advisory committee

makes the memorandum public information”); Kansi v. U.S. Dep’t of

Justice, 11 F. Supp. 2d 42, 45 (D.D.C. 1998) (explaining that

Exemption 7(A) is not waived by disclosure from a federal law

enforcement agency to a state prosecutor); see also Students

Against Genocide, 257 F.3d at 836-37 (holding that photographs

released to Security Council Delegates, but not to the general

public, “plainly do not fall within [the] doctrine [of public

disclosure]”), the Court finds that the MSHA’s disclosure of the

Transcript to the Teaster Review Team does not negate defendant’s

reliance on Exemption 7(A).

2. Disclosure of One Sentence of Plaintiff’s
Transcript in a Public Report

Next, Plaintiff argues that the MSHA’s reliance on Exemption

7(A) is undermined because the Teaster Review Team “quoted a

crucial portion of the transcript in its report.” Pl.’s Opp’n

Br. at 2. Specifically, the Teaster Report - which was available

online - included a one sentence quotation that was “taken

directly from the transcript of Adair’s December 13, 2007 MSHA

interview.” Pl.’s Opp’n Br. at 9. Defendant responds that the

public release of one sentence of the Transcript does not defeat

12
the application of Exemption 7(A) to withhold disclosure of

plaintiff’s entire Transcript. Def.’s Reply Br. at 6. This

Court agrees.

Courts have routinely recognized that “[t]he disclosure of a

few pieces of information in no way lessens the government’s

argument that complete disclosure would provide a composite

picture of its investigation and have negative effects on the

investigation.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 930-31;

see also Students Against Genocide, 257 F.3d at 835 (“The fact

that some ‘information resides in the public domain does not

eliminate the possibility that further disclosures can cause harm

to intelligence sources, methods and operations.’” (quoting

Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990))); Military

Audit Project v. Casey, 656 F.2d 724, 752 (D.C. Cir. 1981)

(holding that partial disclosure of sensitive information does

not render implausible the government’s claim that full

disclosure would harm national security). Accordingly, the Court

concludes that the public disclosure of one sentence from an

eight-hour interview does not undermine the MSHA’s broader

concern that disclosure of the entire Transcript would damage the

ongoing criminal investigation of the Utah USAO. See infra

Section III.B. The application of Exemption 7(A) is therefore

not negated by this partial disclosure.

13
 C. Exemption 7(A): Interference with Enforcement
Proceedings

Having determined that the entire Transcript was not

publicly disclosed, the Court must now determine whether the

government has proven that the requested information falls within

Exemption 7(A). In order to withhold agency documents under

Exemption 7(A), an agency must first establish, as a threshold

test, that the documents requested were “‘compiled for law

enforcement purposes.’” See Ctr. for Nat’l Sec. Studies, 331

F.3d at 925-26 (quoting 5 U.S.C. § 552(b)(7)). “To establish a

law enforcement purpose, [the defendant’s] declarations must

establish (1) a rational nexus between the investigation and one

of the agency’s law enforcement duties; and a (2) connection

between an individual or incident and a possible security risk or

violation of law.” Id. (internal quotation marks omitted).

Defendant has easily satisfied this requirement. The MSHA’s

investigation of the Crandall Canyon Mine accident relates to the

MSHA’s enforcement duties under the Mine Act, see Stricklin Decl.

¶ 2 (explaining that the Mine Act authorizes the Secretary of

Labor, through the MSHA, to investigate mine accidents and to

assess and collect civil and criminal penalties for health and

safety violations), and the purpose of the MSHA’s investigation

was to determine “‘the cause of the ground failure at Crandall

Canyon mine and any violations of safety and health standards.’”

Stricklin Decl. ¶ 4 (quoting the MSHA’s Press Release dated Aug.

30, 2007). As a result of its investigation, the MSHA imposed a

14
$1.34 million penalty on the mine’s operator and made a formal

referral for a criminal investigation to the Utah USAO.

Stricklin Decl. ¶ 10. Consequently, the Court finds that the

transcript of plaintiff’s interview - which was taken under oath

by the MSHA as part of its investigation of the Crandall Canyon

Mine accident - was compiled for law enforcement purposes. See

generally Stricklin Decl. ¶ 5 (“During the course of its

investigation into the Crandall Canyon accidents, MSHA solicited

voluntary sworn statements of people who had knowledge of the

events and circumstances relating to these accidents, including

Laine Adair . . . .”).

Having satisfied this threshold requirement, defendant must

next establish (1) that a law enforcement proceeding “is pending

or prospective,” and (2) that the release of the requested

information “could reasonably be expected to cause some

articulable harm.” See Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C.

1997) (discussing the “two-step analysis” of Exemption 7(A)).

The Court finds that defendant has satisfied both requirements.

First, with regard to a pending or prospective law

enforcement proceeding, the ongoing criminal investigation by the

Utah USAO satisfies this requirement. See Tolman Decl. ¶ 9

(discussing the Utah USAO’s investigation and explaining that the

office “is currently acting on both criminal referrals from

Chairman Miller and the Department of Labor”). The fact that the

Transcript was compiled during the MSHA’s investigation of the

Crandall Canyon Mine accidents - prior to the Utah USAO’s

15
investigation - does not change the fact that there is an ongoing

investigation that could result in an “enforcement proceeding.”

5 U.S.C. § 552(b)(7)(A); see, e.g., Cudzich v. U.S. Immigration &

Naturalization Serv., 886 F. Supp. 101, 106-07 (D.D.C. 1995)

(concluding that even though the INS had completed its

investigation of the plaintiff, the ongoing investigations of the

plaintiff by other law enforcement agencies satisfied Exemption

7(A)).

Second, the Tolman declaration establishes that the

“[d]isclosure of Mr. Adair’s statement at this time could

reasonably be expected to harm the ongoing criminal

investigation.” Tolman Decl. ¶ 10. As Tolman explains:

One of the central issues in our investigation
is what Mr. Adair and others told MSHA. If
the statement is released, either in whole or
in part, Mr. Adair and others will know
exactly what Mr. Adair said under oath when
interviewed by MSHA in December 2007. This
creates the possibility for others to compare
their potential testimony with Mr. Adair’s and
would allow them to collaborate to obtain a
consistency of detail and memory that will not
be available if Mr. Adair’s statement is not
released. In the same vein, disclosure of the
statement also would enable a witness to adopt
Mr. Adair’s version of the facts and preclude
a more thorough investigation of the witness’s
recollection. . . . To protect the integrity
of this office’s ongoing criminal
investigation, it is important to ensure that
this office remains able to obtain independent
recollections of witnesses regarding the
events surrounding the accident.

Tolman Decl. ¶ 10. These concerns satisfy the “interference”

requirement of Exemption 7(A). See, e.g., Boyd v. Crim. Div. of

the U.S. Dep’t of Justice, 475 F.3d 381, 386 (D.C. Cir. 2007)

16
(“The government meets its burden by demonstrating that release

of the requested information would reveal ‘the size, scope and

direction of [the] investigation’ and thereby ‘allow for the

destruction or alteration of relevant evidence, and the

fabrication of fraudulent alibis.’” (quoting Alyeska Pipeline

Serv. Co. V. U.S. Envtl. Prot. Agency, 856 F.2d 309, 312 (D.C.

Cir. 1988)); Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996)

(recognizing the applicability of Exemption 7(A) because

disclosure would make documents relevant to the investigation

“public and available to everyone, including others under

Commission scrutiny”); see generally Cudzich, 886 F. Supp. at 106

n.1 (“Interference under the terms of the statute encompasses a

wide range of concerns. Grounds which have been repeatedly

acknowledged by the courts include fears of disclosure of: (1)

evidence, (2) witnesses, (3) prospective testimony, (4) the

reliance placed by the government upon the evidence, (5) the

transactions being investigated, (6) the direction of the

investigation, (7) government strategy, (8) confidential

informants, (9) the scope and limits of the government’s

investigation, (10) prospective new defendants, (11) materials

protected by the Jencks Act, (12) attorney work product, (13) the

methods of surveillance, [and] (14) subjects of surveillance.”

(internal quotation marks omitted)). Because defendant has

articulated a harm that can reasonably be expected to interfere

with an ongoing law enforcement investigation, Exemption 7(A) has

properly been invoked to withhold plaintiff’s Transcript from

17
disclosure. The Court concludes that the government has proven

that the requested information falls within Exemption 7(A).

D. Equitable Estoppel

Finally, plaintiff argues that “[e]ven if the Court

determines . . . that Exemption 7(A) permits MSHA to withhold the

transcript, MSHA should be required to produce the transcript

under the doctrine of equitable estoppel.” Pl.’s Opp’n at 13.

It is plaintiff’s position that the MSHA should be prevented from

withholding the Transcript because “MSHA representatives made

definite representations to Adair before he agreed to be

interviewed that the agency would provide him with a copy of the

transcript.” Pl.’s Opp’n at 13-14. Plaintiff further asserts

that after the MSHA secured Adair’s testimony, the agency refused

to permit Adair to review the requested transcript and did not

provide an explanation for its denial. Pl.’s Opp’n at 15.

Defendant argues that plaintiff’s claim for equitable estoppel

should fail because the doctrine is not applicable to the facts

of this case, and that even if it is, plaintiff has failed to

establish the necessity of the requested relief. Def.’s Reply

Br. at 7-10. This Court assumes without deciding that a claim

for equitable estoppel is cognizable in this context, and agrees

with defendant that plaintiff has failed to establish the

essential elements of an equitable estoppel claim. See Keating

v. FERC, 569 F.3d 427 (D.C. Cir. 2009) (assuming without deciding

that equitable estoppel may be applied against the federal

18
government (citing Office of Personnel Mgmt. v. Richmond, 496

U.S. 414, 423 (1990))).

Traditionally, “[t]he doctrine of equitable estoppel

requires a showing that: (1) there was a ‘definite’

representation to the party claiming estoppel; (2) the party

relied on its adversary’s conduct to his detriment; and (3) the

reliance on the representation was ‘reasonable.’” Hertzberg v.

Veneman, 273 F. Supp. 2d 67, 83 (D.D.C. 2003) (quoting Graham v.

SEC, 222 F.3d 994, 1007 (D.C. Cir. 2000)). Application of this

doctrine to the government, assuming it is permissible, must be

“rigid and sparing” and may only be used in “compelling”

circumstances. ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104,

1111 (D.C. Cir. 1988); see also Waukesha State Bank v. Nat’l

Credit Union Admin. Bd., 968 F.2d 71, 74 (D.C. Cir. 1992) (noting

“the rather questionable bounds of the applicability of the

equitable estoppel doctrine to the government”). Litigants in

this Circuit who seek to assert equitable estoppel claims against

the government must therefore also establish “a showing of

injustice” and “lack of undue damage to the public interest.”

ATC Petroleum, 860 F.2d at 1111.

The Court need not analyze each prong of this test because

the Court concludes that plaintiff has failed to demonstrate that

“enforcement of the promise would be in the public interest and

would prevent injustice.” Nat’l Juvenile Law Center, Inc. v.

Regnery, 738 F.2d 455, 459 (D.C. Cir. 1984). The public has a

19
strong interest in preserving the integrity of a pending criminal

investigation involving an accident that resulted in nine

fatalities. Defendant has submitted sworn testimony that

“releasing Mr. Adair’s statement, or any portion of that

statement, could reasonably be expected to harm the investigation

of his and others’ activities related to the August 6 Collapse.”

Tolman Decl. ¶ 11; see also Tolman Decl. ¶ 10. In view of the

potential harm to the executive branch’s ongoing criminal

investigation if the Transcript was disclosed, the public

interest favors the continued withholding of the Transcript at

this time.

While the Court is sympathetic to plaintiff’s request to

review his sworn testimony, see Pl.’s Opp’n Br. at 15 (“[D]espite

Adair’s efforts, he was never provided an opportunity, afforded

to witnesses in civil litigation and even grand jury witnesses,

to make sure that the transcript accurately reflected what he

actually said.”), no “egregious injustice” will result if this

review is delayed. Int’l Org. of Masters, Mates & Pilots v.

Brown, 698 F.2d 536, 552 (D.C. Cir. 1983); see also GAO v. GAO

Pers. Appeals Bd., 698 F.2d 516, 526 (D.C. Cir. 1983) (estoppel

requires a government agent to “behave in ways that have or will

cause an egregiously unfair result”). This is particularly true

given that the “MSHA anticipates that a copy of Mr. Adair’s

statement will be made available to him at the conclusion of the

government’s ongoing criminal investigation and at a time when,

in the judgement of the U.S. Attorney’s Office for the District

20
of Utah, doing so would no longer be expected to compromise that

investigation.” Stricklin Decl. ¶ 13. For these reasons, the

Court concludes that plaintiff’s case for equitable estoppel does

not meet the “compelling” standard required by the case law and

must therefore be rejected. ATC Petroleum, 860 F.2d at 1111.

V. CONCLUSION

For the reasons set forth above, the Court GRANTS

defendant’s motion for summary judgment. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 23, 2009

21