I doubt I could count how many times Joe Main complained about secrecy at the federal Mine Safety and Health Administration back when he was health and safety director for the United Mine Workers union. Now that he’s the Obama administration’s assistant labor secretary for MSHA, you can’t help but wonder if Joe is a little less concerned about the public’s right to know.
Just today, I received a certified letter from MSHA in which agency officials denied a Freedom of Information Act request that is pretty important — well, it’s pretty important if you believe the public has a right to know about potential coal company violations and what MSHA is (or isn’t) doing about them.
This request stemmed from a story I did with Gazette reporter Gary Harki about two potential criminal investigations launched by MSHA at Massey Energy’s Upper Big Branch Mine back in 2009, months before 29 miners there died in an explosion.
In this story, we reported:
Twice last year, federal mine safety officials overseeing the Massey Energy Upper Big Branch mine launched special investigations that are frequently the starting point for criminal probes, according to U.S. Mine Safety and Health Administration records.
MSHA records list “preliminary special investigations” for the Upper Big Branch Mine, but do not explain how those investigations were resolved or if they were eventually referred to federal prosecutors.
Importantly:
MSHA’s Special Investigations Division focuses on examining potential knowing and willful violations that would be appropriate for criminal prosecution. The division also examines cases in which miners may have been discriminated against for reporting safety problems, dust sampling fraud, and harassment of MSHA inspectors.
It’s well know now that federal authorities are conducting a criminal investigation at Upper Big Branch, and it’s been made public that they are looking back at hundreds of violations going back four years.
In its letter denying my FOIA, MSHA cited Exemption 7(A) of the federal Freedom of Information Act, which allows agencies to withhold from the “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to interfere with enforcement proceedings.”
The letter said:
… The two inspection events you requested are part of an ongoing enforcement proceeding and [are] being withheld at this time … Public disclosure of these case records would circumvent discovery rules, chill sources and encourage obstruction.
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Thanks for the Citation of Exemption 7A. West Virginia seams to be pretty good finding anyway they can to deny you information. The WVDEP is the same way in that they will no release documents until the investigations are complete. It makes me wonder how much of the instruction not to release information comes from the top, the presidents office or the governor’s office.
It is my understanding that the exemption does not state that they cannot legally release the information. The law just gives them the right to with-hold it if they want to. The WV Dep has issued a warrant in Raleigh county to a Mountaineer Grading employee but refuses to release any documents under a FOIA because of an active investigation.
In another case is the state refusing to release maps of water lines claiming protection under the Bio-terrorism Act.
Rob,
It’s important to understand WVDEP operates under the West Virginia FOIA and MSHA under the federal law.
And in this instance, the federal and state exemptions are quite different. The federal one covers:
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
A. could reasonably be expected to interfere with enforcement proceedings
B. would deprive a person of a right to a fair trial or an impartial adjudication
C. could reasonably be expected to constitute an unwarranted invasion of personal privacy
D. could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source
E. would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
F. could reasonably be expected to endanger the life or physical safety of any individual.
While WV’s covers:
Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement;
I have to say that, in my experience, I have had fewer problems getting records from WVDEP than most other agencies I cover. They’re far from perfect in this regard, but they are better than MSHA.
Ken.
you should work for MSHA! getting an answer or guidence as an inspector for 21 years on issues was impossible. Everyone from the lowest supervisor up…. CYA or they just didnt know. This was very common in District staff meetings. The typical answer? “Uh…we’ll get back to you all on that……or just write the citation, let the company fight it!” (then little laugh) The rookies couldnt wait to get out the door and write them…..as did the high writers, as this was promotion alley. Even today, Supervisors are coming off the streets almost and becoming experts in as little time as it takes to go thru the Academy….The good expericenced inspectors/supervisors have baled out.