Justice v. Mine Safety and Health Administration

Filing 39

MEMORANDUM OPINION & ORDER denying the plaintiff's 33 MOTION to amend the complaint; holding in abeyance the plaintiff's 34 MOTION for summary judgment with respect to the Memorandums of Interviews of the MSHA inspectors, but other wise denying said motion; granting the defendant's 30 MOTION for Summary Judgment with respect to those documents already disclosed and those withheld documents that are not subject to dispute, but held in abeyance as to the MOIs of the MSHA inspectors; MSHA is directed to review, in light of the foregoing discussion, the MOIs of the MSHA inspectors to determine whether any portions of those records are segregable and disclosable; and MSHA is directed to confer with Justice w ithin 20 days of the entry of this order respecting the MOIs of the MSHA inspectors; to the extent there remains disagreement as to the disclosure of those documents, MSHA is directed to submit the MOIs of the MSHA inspectors to the court by 8/31/2015 for in camera review. Signed by Judge John T. Copenhaver, Jr. on 7/31/2015. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARSHALL JUSTICE,
Plaintiff,
v.

Civil Action No. 2:14-14438

MINE SAFETY AND HEALTH
ADMINISTRATION,
Defendant.

MEMORANDUM OPINION & ORDER

Pending are cross motions for summary judgment filed
on March 2, 2015 and March 16, 2015, respectively; also pending
is the plaintiff’s motion to amend the complaint, filed March
12, 2015.
I. Factual and Procedural Background
The plaintiff, Marshall Justice, is a coal miner from
Madison, West Virginia.

He is employed by the Gateway Eagle

Coal Company (“Gateway”), and serves as a “miner’s
representative.”

On November 4, 2013, he filed an

administrative complaint (the “MSHA Complaint”) with the
defendant, the Mine Safety and Health Administration (“MSHA”),
alleging that he had been improperly treated by Gateway in

violation of the Mine Safety and Health Act, 30 U.S.C. §§ 801966 (2012) (the “Mine Act”).
Justice complained that, while working at the Farley
Eagle Mine on October 24, 2013, Gateway officials insulted him,
disparaged his religion, and also prevented him from speaking
with two MSHA inspectors who were on site conducting safety
checks.

Gateway intimated that Justice’s MSHA Complaint was an

unfounded diversion; an attempt to prevent the company from
taking adverse action against him for excessive absenteeism.

In

any event, MSHA opened a case and assigned two investigators to
look into Justice’s claim.

During the course of their work, the

investigators interviewed the Gateway officials who allegedly
ridiculed and interfered with Justice on October 24th.

Justice

believes the investigators also interviewed the MSHA inspectors,
each of whom allegedly witnessed the heated exchange between
Justice and the Gateway officials.
At the conclusion of its investigation, MSHA
determined that Gateway had not violated the Mine Act and
therefore declined to issue a violation.

Not satisfied, Justice

elected to exercise his statutory right to pursue his MSHA
Complaint on his own before the Federal Mine Safety and Health
Review Commission (the “Commission”).

See 30 U.S.C. § 815(c)(3)

(“If the Secretary, upon investigation determines that the
2

provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of
the Secretary’s determination, to file an action in his own
behalf before the Commission[.]”).
Perhaps anticipating that he would have to make his
own case before the Commission, Justice, by counsel, made a
request to MSHA under the Freedom of Information Act (“FOIA”)
for all non-privileged portions of the completed investigative
file relating to his MSHA Complaint.

He made his request on

December 5, 2013, twenty-five days before MSHA completed its
investigation on December 30, 2013.
By letter dated January 24, 2014, MSHA acknowledged
Justice’s FOIA request for the investigative file.

According to

the letter, there were “unusual circumstances surrounding the
records [Justice was] seeking,” and “a need to search for and
collect records from separate offices.”

As a result, the

defendant stated that the twenty-day “statutory time limits for
processing [the] request [could not] be met,” and estimated that
it would take ninety working days to provide a response.
April 10, 2014, Justice had not received the requested
documents, so he filed this lawsuit on that day.

3

By

Justice’s complaint included two counts.

Count I

straightforwardly alleged that MSHA had violated FOIA by not
releasing the requested documents and sought disclosure of those
documents.

Count II requested a declaratory judgment that MSHA

is in violation of FOIA and frustrates miners’ rights to
pursue health and safety related complaints under [the
Mine Act], and that consequently [MSHA] is required [to]
provide all documents and materials relevant to a
miner’s complaint promptly upon the miner’s request, and
at most within the statutory period of 20 working days,
to enable miners to meaningfully pursue their complaints
concerning unlawful retaliatory violations of the Mine
Act.
Compl. ¶ 25(a).
Two significant developments followed.

First, MSHA

responded to the plaintiff’s FOIA request on May 2, 2014.

Of

the 112-page investigative file, the agency released 45 pages in
their entirety, released 26 additional pages with some
redactions, and withheld the remaining 41 pages completely.
Later, on December 16, 2014, MSHA released eleven more pages
that the agency had previously withheld.

MSHA released six of

those pages in their entirety, and released another five with
some redactions.

In doing so, MSHA explained that it had

evaluated its policies, determined that those eleven pages had
been improperly withheld, and updated its policy to correct the
error.

4

Second, MSHA moved to dismiss Count II inasmuch as it
seemed to request potentially unbounded relief on behalf of any
miner who might at some point present a FOIA request to the
agency.

In response, Justice clarified that, notwithstanding

its broad wording, Count II sought only “a declaratory judgment
that . . . [p]laintiff has a right under [FOIA] . . . to access
certain records of the government’s investigation into the
discrimination complaint that [p]laintiff filed with [MSHA.]”
See Plaintiff’s Memorandum of Law in Opposition to Motion to
Dismiss Count II (“Pl.’s Opp’n”) at 1.
Notwithstanding Justice’s assurances about the limited
scope of Count II, there were some indications that perhaps he
intended to plead a claim of a different character.

His

response to MSHA’s motion to dismiss alleged, for example, that
he had “requested safety-related information under FOIA at other
times,” that he “continue[d] to work in the mining industry,”
that “he maintain[ed] an acute and ongoing interest in
exercising his whistleblower rights,” and that he “therefore
[sought] declaratory judgment to clarify his right to receive
timely, adequate responses to his FOIA requests relating to his
whistleblower complaints under the Mine Act.”
(emphases added).

5

Pl.’s Opp’n at 3

But those allegations -- specifically those concerning
multiple and anticipated future FOIA requests -- were not found
in the complaint.

And, in any event, Justice’s stray comments

regarding multiple “requests” and “complaints” were in direct
conflict with his more narrow assertion, noted above, that he
was pursuing his right “to access certain records of the
government’s investigation into the discrimination complaint
that [p]laintiff filed with [MSHA.]”
added).

Pl.’s Opp’n at 1 (emphases

As a result, the court declined to read Count II as a

generalized challenge to MSHA’s FOIA-response policy.
herein of January 23, 2015 at n.4.

See Order

Instead, the court

understood Count I and Count II as separate vehicles seeking
identical relief:

Count I alleged that MSHA violated FOIA by

failing to respond adequately to Justice’s request and sought
release of the requested documents; Count II sought a
declaration confirming those allegations and directing that
result.

See Order herein of January 23, 2015.
On the basis of that limitation -- that is, that

Justice was seeking relief related to his own FOIA request, and
not challenging MSHA’s responses to some unascertainable number
of other miners’ FOIA requests -- the court denied MSHA’s motion
to dismiss as premature.

The court also set a schedule for the

6

production of a Vaughn index and the filing of cross-motions for
summary judgment.
MSHA filed its Vaughn index on February 13, 2015 and
its motion for summary judgment on March 2, 2015.
his cross-motion on March 16, 2015.

Justice filed

In the interim, on March

12, Justice separately moved to amend the complaint.

II. Motion to Amend

According to the plaintiff, the purpose of the
proposed amendment is to clarify that he is still employed as a
miner, that he still acts as a safety advocate, and “that he
does have an ongoing interest in [MSHA’s] policy and
practices[.]”

The proposed amended complaint attached to the

motion does so specifically by alleging that: Justice is an
employee of the Gateway Eagle Coal Company; Justice serves as a
miners’ representative, regularly participates in inspections
conducted by MSHA, occasionally files safety complaints with
MSHA, and routinely requests and reviews documents from MSHA;
and Justice intends to “continue serving as a safety and health
advocate in the coal mines.”

The amended complaint also

asserts, with respect to Count II, that “[i]mproper FOIA policy
and practices of MSHA will impair [Justice’s] access to

7

information in the future, when he makes other FOIA requests in
furtherance of exercising his whistleblower rights under the
Mine Act.”
All of that seems designed to support Count II’s
prayer for relief, which remains essentially unchanged from the
original complaint.

It seeks:

a declaration that [MSHA’s] conduct is in violation of
FOIA and frustrates the rights of miners -- and
specifically the rights of Plaintiff -- to pursue health
and safety related complaints under . . . the Mine Act,
and that consequently [MSHA] is required [sic] provide
all documents and materials relevant to a miner’s
complaint promptly upon the miner’s request, and at most
within the statutory period of 20 working days, to enable
a
miner,
and
specifically,
the
Plaintiff,
to
meaningfully pursue his complaints concerning unlawful
retaliatory violations of the Mine Act.
In other words, it now appears that Justice wants to allege
something resembling a “facial” challenge to MSHA’s FOIA policy
in general, rather than the “as-applied” challenge he seemed to
embrace in his response to MSHA’s motion to dismiss.

See Pl.’s

Opp’n at 1 (“Plaintiff has a right under [FOIA] . . . to access
certain records of the government’s investigation into the
discrimination complaint that [p]laintiff filed with [MSHA.]”).
MSHA opposes the motion.

8

A.
Federal Rule of Civil Procedure 15(a)(2) provides that
a party who can no longer amend a pleading as of right can still
amend by obtaining “the opposing party's written consent or the
court's leave.”

Fed. R. Civ. P. 15(a)(2).

freely give leave when justice so requires.”

“The court should
Id.

In applying

Rule 15(a), “[t]he law is well settled that ‘leave to amend a
pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on
the part of the moving party, or the amendment would be
futile.’”

Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th

Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503,
509 (4th Cir. 1986)).

A proposed amendment is futile “if . . .

[it] fails to satisfy the requirements of the federal rules,”
such as Rule 12(b)(6).

United States ex rel. Wilson v. Kellogg

Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (citation
omitted).
The flexibility of the “freely give leave” standard is
diminished somewhat when the amendment is sought after
expiration of the deadline, if any, for amended pleadings set by
a Rule 16(b) scheduling order.

Rule 16(b) provides that “a

schedule shall not be modified except upon a showing of good
cause and by leave of the district judge.”
9

Fed. R. Civ. P.

16(b).

Thus, “after the deadlines provided by a scheduling

order have passed, the good cause standard must be satisfied to
justify leave to amend the pleadings.”

Nourison Rug Corp. v.

Parvizian, 535 F.3d 295, 298 (4th Cir. 2008); see also Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (“If
we considered only Rule 15(a) without regard to Rule 16(b), we
would render scheduling orders meaningless and effectively would
read Rule 16(b) and its good cause requirement out of the
Federal Rules of Civil Procedure.”).
“Good cause” under Rule 16(b) is measured by the
movant’s diligence in attempting to meet the scheduling order’s
requirements.

Sherman v. Winco Fireworks, Inc., 532 F.3d 709,

716 (8th Cir. 2008); Kassner v. 2nd Ave. Delicatessen Inc., 496
F.3d 229, 243 (2d Cir. 2007); Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607–08 (9th Cir. 1992).

“Another important

consideration for a district court deciding whether Rule 16’s
‘good cause’ standard is met is whether the opposing party will
suffer prejudice by virtue of the amendment.”

Leary v.

Daeschner, 349 F.3d 888, 906 (6th Cir. 2003).

Nevertheless,

“[a]lthough the existence or degree of prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party’s reasons for seeking modification.

10

If that party was not

diligent, the inquiry should end.”

Johnson, 975 F.2d at 609

(citations omitted).
B.
The provenance of Count II of the plaintiff’s
complaint has been dubious from the start.

As MSHA noted in its

motion to dismiss, the Count as originally pled seemed to
request prospective relief arising out of hypothetical disputes
on behalf of some unascertainable number of non-parties.

MSHA

also argued, and the court observed in a prior order, that
declaratory relief of the nature sought in Count II is almost
always unavailable in cases involving FOIA requests.

The rare

exception, noted both by MSHA and by the court, involves the
narrow set of circumstances where an agency has adopted a policy
that violates the FOIA, and where it is all but certain that the
plaintiff will suffer the ill-effects of that policy again in
the future.
Some aspects of the plaintiff’s response to the motion
to dismiss suggested he was trying to advance a claim of that
nature, but the factual predicate needed to do so was not laid
in the original complaint.
intended to correct that.

The motion to amend is clearly
But it’s too late and, as it turns

out, it’s too little as well.

11

1.
The court’s scheduling order set a deadline of October
10, 2014 for amending the pleadings.1

Justice waited nearly five

months to the day after that to move to amend.
reason he was unable to do so sooner.

There is no

MSHA’s motion to dismiss

Count II specifically pointed up a number of problems with that
cause of action as initially pled.

Justice’s response, as

noted, purported to limit the scope of Count II in order to
address MSHA’s concerns.

It simultaneously mentioned some new

facts -- the same type of new facts included in the proposed
amended complaint -- that hinted at a different conception of
Count II.

Justice filed that response on August 14, 2014,

almost two months before the deadline for amending the pleadings
(in fact, before the court had even entered its scheduling
order).

In other words, Justice knew as far back as August of

2014 what he wants to assert by amendment now -- namely, that he
had an ongoing interest in filing FOIA requests with MSHA and
reason to believe those requests would not be properly
addressed.

By any measure, waiting five months to propose the

amendment does not reflect the kind of diligence necessary to
satisfy Rule 16’s good cause requirement.

1

The court subsequently vacated that order following the
submission of the parties’ motions for summary judgment, but it
remained in force when Justice moved to amend.
12

Even assuming Justice wasn’t on notice of the need to
tighten up the complaint until the court’s ruling on MSHA’s
motion to dismiss, he still waited nearly two months to move to
amend.

And what’s more, he waited until MSHA -- believing the

case would move forward on a more limited construction of Count
II -- had produced its Vaughn index and filed its motion for
summary judgment.

Notwithstanding Justice’s wholly unexplained

delay, forcing MSHA to reassess the case and revise its motion
for summary judgment would be prejudicial.

Accordingly, Justice

has not shown good cause under Rule 16.
2.
Even under Rule 15’s more permissive standard, leave
to amend is still not warranted because Justice’s proposed Count
II is futile.
The allegations in the proposed amended complaint, if
accepted as true, establish that Justice is a miner and a
miners’ advocate, that he plans to file future FOIA requests
with MSHA, and that MSHA has developed a pattern and practice of
“unreasonably delaying the production of the administrative
record in response to requests” -- (presumably FOIA requests,
but Justice does not say so) -- “by anti-retaliation
complainants[.]”

To remedy this allegedly improper pattern and
13

practice, Justice asks for a declaration that MSHA must “provide
all documents and materials relevant to a miner’s complaint
promptly upon the miner’s request, and at most within the
statutory period of 20 working days[.]”
FOIA requires an agency to “determine within 20
[business] days . . . after the receipt of a [FOIA] request
whether to comply with such request[.]”
552(a)(6)(A)(i).

5 U.S.C. §

Nothing in that language requires an agency to

disclose all of the requested documents within 20 days, as
Justice would have it.

As one court of appeals recently

explained, “a ‘determination’ does not require actual production
of the records to the requester at the exact same time that the
‘determination’ is communicated to the requester.

Under the

statutory scheme, a distinction exists between a ‘determination’
and subsequent production.”

Citizens for Responsibility &

Ethics in Washington v. FEC, 711 F.3d 180, 185-89 (D.C. Cir.
2013) (emphasis in the original).

Of course, agencies are still

obligated under FOIA to produce the requested documents
“promptly” after making a determination about the appropriate
scope of the response.

Id. at 188 (citing 5 U.S.C. §

552(a)(3)(A) and (a)(6)(C)(i)).

But nothing in FOIA absolutely

requires an agency to “provide all documents and materials
relevant to a” request “at most within” 20 days, and there is,

14

as a result, no basis in that statute to declare that MSHA is
required to do so.
In sum, even if Justice ultimately proves all of the
facts alleged in his proposed amended complaint, he would not be
entitled to the declaratory relief he seeks.

Count II of the

proposed amended complaint is futile; it is accordingly ORDERED
that the plaintiff’s motion to amend be, and hereby is, denied.

III. Motions for Summary Judgment

The lone remaining issue presented by the plaintiff’s
complaint and contested in the cross motions for summary
judgment is whether MSHA adequately responded to Justice’s FOIA
request.
A.
FOIA was enacted to “pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny[.]”
(1976).

Dep’t of Air Force v. Rose, 425 U.S. 352, 361

The statute requires an “agency, upon any request for

records which (i) reasonably describes such records and (ii) is
made in accordance with published rules,” to “make the records
promptly available to any person.”

15

5 U.S.C. § 552(a)(3)(A).

That statutory command is not, however, absolute.

FOIA contains

“nine discrete exemptions[] which allow an agency to withhold
certain categories of information[.]”

Keeper of the Mountains

Foundation v. U.S. Dep’t of Justice, 514 F. Supp. 2d 837, 846
(S.D. W. Va. 2007) (citing 5 U.S.C. § 552(b)).
If a member of the requesting public believes an
agency has withheld information, he or she may sue and the court
may in turn order the production of records deemed improperly
withheld.

See 5 U.S.C. § 552(a)(4)(B).

Such cases are

typically and properly decided on motions for summary judgment,
Hanson v. USAID, 372 F.3d 286, 290 (4th Cir. 2004), provided
there is no dispute of material fact and the moving party shows
it is entitled to judgment as a matter of law, Fed. R. Civ. P.
56(a).
The agency bears “the burden of justifying
nondisclosure, [] the court reviews the agency’s action de
novo,” Keeper of the Mountains, 514 F. Supp. 2d at 846 (citing 5
U.S.C. § 552(a)(4)(B)), and “FOIA exemptions should be narrowly
construed to favor disclosure,” Hanson, 372 F.3d at 290.

The

agency may carry its burden by providing (and the court may
grant summary judgment after reviewing) affidavits and
declarations “describing the withheld material with reasonable
specificity and explaining” the applicability of an enumerated
16

exception.

Hanson, 372 F.3d at 290.

On the other hand,

“‘[c]onclusory assertions of privilege will not suffice[.]’”
Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 368 (4th
Cir. 2009) (quoting Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 861 (D.C. Cir. 1980) (alteration in the
original)).

If the agency’s affidavits and declarations are

appropriately detailed, they are entitled to “a presumption of
good faith[] which cannot be rebutted by purely speculative
claims about the existence and discoverability of other
documents.”

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (internal quotation marks and citation
omitted).
B.
Justice requested all non-privileged portions of the
completed investigative file relating to his MSHA Complaint.

In

his complaint, he alleges that MSHA failed to “respond
substantively” to that request and failed to “release the
requested records in a timely manner.”

MSHA has now released 51

pages of Justice’s file without excision, released another 31
partially redacted pages, and withheld the remaining 30 pages,
so the proper inquiry now does not concern the timing of the
agency’s response but rather the propriety of its withholdings.
Cf. Payne Enters., Inc. v. United States, 837 F.2d 486, 490-91
17

(D.C. Cir. 1988) (“[H]owever fitful or delayed the release of
information under the FOIA may be, once all requested records
are surrendered, federal courts have no further statutory
function to perform with respect to the particular records that
were requested.” (internal quotation marks and citation
omitted)).
As to the substance, documents in Justice’s 112-page
investigative file include, among other things, correspondence
between MSHA and Justice and between MSHA and Gateway, internal
agency memoranda describing the investigation into Justice’s
MSHA complaint, and Memorandums of Interviews (“MOIs”)
memorializing investigative interviews with Justice, several
Gateway officials, and unnamed “MSHA inspectors”.

Fifty-one

pages of those records have been released without excision.

Of

the remaining sixty-one pages, the agency has partially redacted
thirty-one and withheld an additional thirty pages completely.
Four of the pages completely withheld by the agency,
MSHA000090 through MSHA000093, are described in the Vaughn index
as “Memoranda of Interview of MSHA inspectors by MSHA Section
105(c) complaint investigator, conducted in December of 2013.”
The parties’ briefs make clear that it is only MSHA’s continued
withholding of those four pages that remains in dispute.

See

Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion
18

for Partial Summary Judgment (“Pl.’s Mem.”) at 6 (“As to Count
I, Plaintiff seeks to clarify an outstanding dispute regarding
two critical documents that Defendant continues to withhold.”);
Defendant’s Reply in Support of its Motion for Summary Judgment
and in Opposition to Plaintiff’s Motion for Partial Summary
Judgment (“Def.’s Resp.”) at 1 (“The Plaintiff’s Memorandum
indicates that the only two documents remaining in controversy
are the two Memoranda of Interview (“MOI”) taken from ‘two MSHA
inspectors who happened to be present at the time that the
allegedly discriminatory conduct occurred.’ (quoting Pl.’s Mem.
at 3)).
MSHA maintains that it properly withheld the MOIs with
the unnamed “MSHA inspectors” under Exemptions 5 and 7(C) in
keeping with its “longstanding practice of withholding special
investigation statements taken from inspectors[.]”

Justice

assumes those inspectors are the two MSHA inspectors present at
the Farley Eagle Mine on October 24, 2013.

He maintains that

summary judgment is inappropriate at this stage because there is
a genuine dispute over whether MSHA improperly failed to release
segregable, factual information in the MOIs describing the
events of October 24th.2

2

Justice elsewhere argues that he is entitled to “partial
summary judgment” because MSHA released on December 16, 2014
MOIs with Gateway officials which it previously withheld
19

1. Exemption 5
“Exemption 5 permits an agency to withhold ‘interagency 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.’”
552(b)(5)).

Rein, 553 F.3d at 365-66 (quoting 5 U.S.C. §

“Among the privileges Exemption 5 encompasses are

the attorney-client privilege, the attorney-work product
privilege, and the deliberative process privilege.”

Id. at 371.

To properly withhold documents under Exemption 5’s
deliberative process privilege, as MSHA purports to do here, the
agency must show that the records are “predecisional” and
“deliberative.”

Id. at 372.

That is, the relevant materials

must have been “prepared in order to assist an agency
decisionmaker in arriving at his decision,” Renegotiation Bd. v.
Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975), and must

entirely from its May 2, 2014 response. As Justice sees it, the
subsequent release of those materials is tantamount to admission
by MSHA “of the wrongfulness of its initial FOIA response[.]”
Pl.’s Mem. at 6-7. FOIA vests courts with “jurisdiction to
enjoin the agency from withholding records and to order the
production of any agency records improperly withheld.” 5 U.S.C.
§ 552(a)(4)(B). As a result, once MSHA released the records in
its December 16, 2014 supplemental response, any dispute over
the agency’s initial decision to withhold those documents became
moot. See Regional Mgmt. Corp., Inc. v. Legal Servs. Corp., 186
F.3d 457, 465 (4th Cir. 1999) (“It is undisputed that a
challenge to a particular denial of a FOIA request becomes moot
if an agency produces the requested documents.” citing Payne
Enters., 837 F.2d at 491-94)
20

“reflect[] the give-and-take of the consultative process by
revealing the manner in which the agency evaluates possible
alternative policies or outcomes, City of Va. Beach v. U.S.
Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) (internal
quotation marks and citation omitted).
Moreover, “[b]ecause the FOIA focuses on information
rather than documents, ‘[a]ny reasonably segregable portion of a
record shall be provided . . . after deletion of the portions
which are exempt[.]’”

Rein, 553 F.3d at 374 (quoting 5 U.S.C.

552(b) (emphasis deleted; second alteration in the original)).
That means non-exempt factual material “must be disclosed unless
[it is] inextricably intertwined with exempt portions such that
the disclosure of those facts would compromise the
confidentiality of the deliberative information that is entitled
to protection under Exemption 5, in which case the factual
materials need not be disclosed.”

Id. (internal quotation marks

and citations omitted); see also EPA v. Mink, 410 U.S. 73, 87-88
(1973) (“[I]n the absence of a claim that disclosure would
jeopardize state secrets, memoranda consisting only of compiled
factual material or purely factual material contained in
deliberative memoranda and severable from its context would
generally be available for discovery by private parties in
litigation with the Government. . . . . Virtually all of the

21

courts that have thus far applied Exemption 5 have recognized
that it requires different treatment for materials reflecting
deliberative or policy-making processes on the one hand, and
purely factual, investigative matters on the other.”).
There appears to be no dispute that the MOIs are
predecisional.

MSHA’s Vaughn index notes that the MOIs were

created in December of 2013, and the agency did not write to
Justice to convey the results of its investigation until
December 30, 2013.

The parties disagree, however, about whether

the MOIs are entirely deliberative.

MSHA asserts that the MOIs

must be withheld because the testimony of the MSHA inspectors,
if revealed, could “indicate what is important for special
investigation purposes,” and maintains generally that the
testimony of MSHA inspectors “often includes personal opinions.”
Vaughn Index at 7.

According to the agency, “[r]elease of these

statements could impair the quality of inspectors’
investigations,” id., and “any attempt at segregating the
information in [the MOIs] would provide little or no
informational value, because the material is inextricably
intertwined,” Matos Decl. ¶ 16.
Justice concedes that, “[t]o the extent that the
interviewee inspectors’ testimony includes their opinions about
what is important for the purposes of . . . investigation . . .
22

those opinions . . . should be redacted[.]”

Pl.’s Mem. at 8.

But he also argues that MOIs typically do not include opinions,
and maintains that any segregable factual testimony about what
the MSHA inspectors witnessed on October 24, 2013 must be
released.

In support of that proposition he notes that MSHA

eventually released the MOIs of several Gateway officials in
their entirety, none of which include the investigator’s opinion
about the case.

Justice is right about that.

The MOIs that

have been disclosed thus far contain narrative, summary accounts
of the interview subject’s testimony.

They are written in an

objective, neutral tone; the investigator’s opinion (if any)
about the credibility or relevance of the information is not
discernible.

Of course, it’s possible that the MOIs of the MSHA

inspectors are different3 -- but apart from the vague suggestion
that inspector testimony “often includes personal opinions,” the
agency’s index and declaration do not assert that these MOIs
contain opinion testimony about MSHA’s investigation.
Even if the MOIs are largely factual, they may still
be subject to Exemption 5 if the “factual material was assembled

3

MSHA argues as much, complaining that Justice “incorrectly
characterizes the MSHA inspectors’ MOIs as similar in nature to
MOIs taken from mine management or miner witnesses[.]” Def.’s
Resp. at 3. But the agency does not explain how the MOIs
differ, except by reiterating its conclusion that the records
are “pre-decisional intra-agency communications.” Id.
23

through an exercise of judgment in extracting pertinent material
from a vast number of documents” that would reveal the agency’s
deliberative process.

See, e.g., Mapother v. DOJ, 3 F.3d 1533,

1537-40 (D.C. Cir. 1993); see also Phillips v. Immigration &
Customs Enforcement, 385 F. Supp. 2d 296, 302-03 (S.D.N.Y. 2005)
(holding that factual matter contained in an official’s notes
from an interview with an applicant for asylum was subject to
Exemption 5 because the notes were not a “verbatim transcript”
but reflected “a selective recording of information particularly
pertinent to [the applicant’s] request for asylum”).
On the other hand, an objective recording of factual
matter that presents “no point of view” and “in no way betrays
the occasion that gave rise to its compilation” is likely not
exempt, and must be released if reasonably segregable.

See

Mapother, 3 F.3d at 1539-40 (holding that, although some
portions of a report were properly withheld under Exemption 5, a
separate portion that was “in substance an inventory, presented
in chronological order,” documenting factual information about a
subject’s military career, was reasonably segregable).

The

question is whether the MOIs contain opinions and
recommendations that cannot be reasonably segregated from
factual matter contained in the witnesses’ statements.

See

Lurie v. Dep’t of Army, 970 F. Supp. 19, 34-35 (D.D.C. 1997)

24

(“Witness statements obtained in the course of an agency
investigation are subject to withholding under FOIA’s Exemption
5, provided such statements otherwise satisfy the criteria of
Exemption 5. . . . . Witness statements, like those withheld by
the Army here, raise Exemption 5 questions where the witnesses
include among their version of the facts their opinions and
recommendations.

Unless the factual portions cannot be

reasonably segregated from the opinions or where disclosure
would otherwise reveal the agency’s deliberative process, the
facts must be disclosed.”).
Ultimately, in this instance, whether the MOIs of the
MSHA inspectors reveal the agency’s deliberative process is
impossible to determine based on the material contained in the
Vaughn index and the agency’s affidavit.

“[T]o be adequate,”

the index “must provide enough facts for the district court to
determine that the document [is] ‘predicisional’ and
‘deliberative.’”

Rein, 553 F.3d at 370; see also Nat’l Sec.

Counselors v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013) (“The
need to describe each withheld document when Exemption 5 is at
issue is particularly acute because the deliberative process
privilege is so dependent upon the individual document and the
role it plays in the administrative process.” (citations and
quotation marks omitted)).

To reach that conclusion here, the

25

index would need to permit the court to conclude that the MOIs
of the MSHA inspectors contain something other than an objective
recitation of the factual matter contained in the interviewees’
statements about the argument between Justice and the Gateway
officials on October 24, 2013.

As it stands, the agency’s

materials do not permit that conclusion.
The index does not clearly assert, for example, that
the MOIs with the MSHA inspectors contain the investigator’s
opinions about the case.

Nor does the index suggest that the

MSHA inspectors offered their own opinions about the merits of
Justice’s complaint, or the reliability of other witnesses.

The

agency’s declaration claims that any potentially non-exempt
information contained in those records is “inextricably
intertwined” with exempt material.

Matos Decl. ¶ 16.

But

without more clues about the nature of any non-factual
information that may be contained in the MOIs, that conclusion
standing alone is insufficient.

See Rein, 553 F.3d at 369-70

(“Without revealing any facts about the documents’ contents, the
Agencies have merely asserted their conclusion that the document
is exempt, employing general language associated with the
deliberative process.”).

26

2. Exemption 7(C)
“Exemption 7(C) . . . authorizes agencies to withhold
‘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 constitute an unwarranted invasion of personal
privacy.’”

Neely v. F.B.I., 208 F.3d 461, 463 (4th Cir. 2000)

(quoting 5 U.S.C. § 552(b)(7)(C)).
The parties do not dispute that the MOIs were compiled
for law enforcement purposes, so the relevant question, as the
statutory text suggests, is whether their disclosure would work
an “unwarranted” invasion of privacy.

To make that

determination, the court must weigh the public’s interest in
disclosure of the responsive information against the relevant
privacy interests.

Id. at 463-64.

Justice maintains that miners, like him, “have been
afforded important anti-discrimination rights under the Mine
Act,” and argues (more or less) that there is a strong public
interest in better enabling miners to enforce those rights.
Pl.’s Mem. at 16-17.

See

That’s a non-starter, because “the Supreme

Court has made clear in no uncertain terms,” that “‘the identity
of the requesting party’ and ‘the purposes for which the request

27

for information is made’ by that party ‘ha[ve] no bearing on the
merits of his or her FOIA request.’”

Neely, 208 F.3d at 464

(quoting DOJ v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 771 (1989)).

Instead, “the only relevant public interest

in the FOIA balancing analysis [is] the extent to which
disclosure of the information sought would ‘she[d] light on an
agency’s performance of its statutory duties’ or otherwise let
citizens know ‘what their government is up to.’”

Dep’t of Def.

v. FLRA, 510 U.S. 487, 497 (1994) (quoting Reporters Comm., 489
at 773).
But just because Justice’s particular interest in the
documents is irrelevant doesn’t mean there’s no public interest
at all in disclosure of the MOIs.

To the contrary, MSHA has a

statutory duty to investigate claims by miners against mine
operators, 30 U.S.C. § 815(c)(2), and the content of the MOIs
may well “shed light on the agency’s performance of [those]
statutory duties” by elucidating the extent of MSHA’s
investigative efforts.

Cf. Citizens for Responsibility & Ethics

in Washington v. DOJ, 746 F.3d 1082, 1093 (D.C. Cir. 2014)
(“Disclosure of the FD-302s and investigative materials could
shed light on how the FBI and the DOJ handle the investigation
and prosecution of crimes[.]”); PETA v. NIH, 745 F.3d 535, 542
(D.C. Cir. 2014) (“[T]here is a cognizable public interest in

28

learning how NIH handles complaints concerning animal abuse and
misappropriation of federal research funds.”); Stern v. FBI, 737
F.2d 84, 92 (D.C. Cir. 1984) (describing a public interest in
“knowing that a government investigation itself is
comprehensive”).
On the other side of the scale, the agency argues that
the MSHA inspectors “clearly have a privacy interest in
protecting [] personal information,” such as their “names,
titles, home addresses, home telephone numbers, fax numbers,
signatures, and license plate numbers” from public disclosure.
Defendant’s Memorandum of Law in Support of its Motion for
Summary Judgment (“Def.’s Mem.”) at 17.
uncontroversial.

That much appears

As our court of appeals has explained, “FBI

agents, government employees, third-party suspects, and other
third parties mentioned or interviewed in the course of the
investigation have well-recognized and substantial privacy
interests in” information consisting primarily of “identifying
information.”

Neely, 208 F.3d at 464-65.

But the agency’s

justifiable interest in protecting the inspectors’ personal
identifying information doesn’t explain its broader assertion
that “Exemption 7(C) applies to the entirety of the Memoranda of
Interview of MSHA inspectors . . . and any attempt at
segregating the information in those documents would provide

29

little or no informational value, because the material is
inextricably intertwined.”

Matos Decl. ¶ 16.

MSHA expands on its argument somewhat in its reply
brief, suggesting that “disclosing the identities of . . . MSHA
inspectors interviewed in connection with [the] investigation,
or of information contained therein, [] could subject sources to
retaliation, harassment, or intimidation.”

Def.’s Resp. at 4.

More specifically, the agency posits that MSHA inspectors
maintain a “close working relationship” with mine personnel with
whom they “are likely to have repeated and ongoing
relationships,” id. at 3, 5, and that the MOIs “contain candid
discussions of people and events, and may include personal
opinions,” id. at 2.

As a result, the agency asserts,

“[r]elease of these statements . . . may adversely impact other
routine inspections and accident investigation functions
involving the same mine.”

Id. at 2.

Fourth Circuit precedent leaves no doubt that
“individuals have a substantial interest in the nondisclosure of
their identities and their connection with particular
investigations because of the potential for future harassment,
annoyance, or embarrassment.”
(emphasis added).

Neely, 208 F.3d at 464-65

That just underscores the agency’s legitimate

interest in redacting the personal identifying information
30

discussed above; it doesn’t provide a basis for withholding the
documents in their entirety.

See Nation Magazine, Washington

Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995)
(opining that an agency may not “exempt from disclosure all of
the material in an investigatory record solely on the grounds
that the record includes some information which identifies a
private citizen or provides that person’s name and address”
because “such a blanket exemption would reach far more broadly
than is necessary to protect the identities of [those]
individuals” and “would be contrary to FOIA’s overall purpose of
disclosure” (emphasis in the original)).

And the agency’s

concerns about future investigations appear to correspond with a
different exemption that MSHA has not relied upon in its index,
its declaration, or its summary judgment materials.

See 5

U.S.C. § 552(b)(7)(A) (providing an exemption if the production
of records compiled for law enforcement purposes “could be
reasonably expected to interfere with enforcement proceedings”).
It’s true, of course, that there are some instances in
which categorical withholding under Exemption 7(C) is
appropriate.

See Reporters Comm., 489 U.S. at 776-80 (holding

that categorical withholding under Exemption 7(C) is appropriate
only when “a case fits into a genus in which the balance”
between disclosure and privacy “characteristically tips in one

31

direction”).

But such a sweeping invocation of the Exemption is

warranted only where “the privacy interest protected by
Exemption 7(C) is in fact at its apex while the FOIA-based
public interest in disclosure is at its nadir.”

Id. at 780.

MSHA has not shown that kind of categorical imbalance between
the public and private interests in this case.

Cf. Citizens for

Responsibility & Ethics in Washington v. DOJ, 746 F.3d at 1096
(holding that the DOJ’s categorical withholding of records
relating to an FBI investigation under Exemption 7(C) was
improper where the balance between public disclosure and privacy
interests did not tip decisively in favor of withholding).
C.
Personal information concerning the identities of the
inspectors falls within the ambit of Exemption 7(C) and may be
redacted, but MSHA has not shown that it is entitled to
categorically withhold the MOIs of the MSHA inspectors under
that Exemption.

And, as noted at length, the agency’s Vaughn

index and declaration do not provide enough detail to determine
whether the MOIs are subject wholly or partially to Exemption
5’s deliberative process privilege.

As a result, MSHA is not

entitled to summary judgment as to the MOIs of the MSHA
inspectors at this time.

32

Nevertheless, because the information contained in the
index, particularly when viewed in the light most favorable to
the agency, raises at least the possibility that the MOIs
contain information subject to Exemptions 5 and 7(C), summary
judgment in the plaintiff’s favor as to the inspector MOIs is
also not yet appropriate.

Justice recognizes as much and urges

the court to resolve through in camera review the “factual
dispute about whether the MOIs of the two MSHA inspectors
contain segregable, non-deliberative, otherwise non-exempt
information.”

Pl.’s Mem. at 20.

Before undertaking that step,

the court is content to afford MSHA an additional opportunity to
review the MOIs to determine whether any of the information
contained therein is segregable and, if so, disclosable.

See

Keeper of the Mountains, 514 F. Supp. 2d at 856 (declining to
undertake in camera review before affording the agency a second
chance to review the challenged documents).

IV. Conclusion

For the foregoing reasons, it is ORDERED:
1. That the plaintiff’s motion to amend the complaint be,
and hereby is, denied;

33

2. That the plaintiff’s motion for summary judgment be,
and hereby is, held in abeyance with respect to the MOIs of the
MSHA inspectors, but otherwise denied;
3. That the defendant’s motion for summary judgment be,
and hereby is, granted with respect to those documents already
disclosed and those withheld documents that are not subject to
dispute, but held in abeyance as to the MOIs of the MSHA
inspectors;
4. That MSHA be, and hereby is, directed to review, in
light of the foregoing discussion, the MOIs of the MSHA
inspectors to determine whether any portions of those records
are segregable and disclosable; and
5. That MSHA be, and hereby is, directed to confer with
Justice within twenty days of the entry of this order respecting
the MOIs of the MSHA inspectors.

To the extent there remains

disagreement as to the disclosure of those documents, MSHA is
directed to submit the MOIs of the MSHA inspectors to the court
by August 31, 2015 for in camera review.

34

The Clerk is directed to forward copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
DATED: July 31, 2015
John T. Copenhaver, Jr.
United States District Judge

35