Justice v. Mine Safety and Health Administration

Filing 42

MEMORANDUM OPINION & ORDER granting Mine Safety and Health Administration's 30 motion for summary judgment insofar as Justice seeks disclosure of information in the inspector MOIs withheld under Exemption 5, as described more fully herein, an d denying plaintiff Marshall Justice's 34 motion for summary judgment to the same extent; MSHA's motion for summary judgment is granted insofar as Justice seeks disclosure of information in the inspector MOIs withheld by MSHA under Exemption 7(C), as discussed more fully herein, and Justice's motion for summary judgment is denied to the same extent. Signed by Judge John T. Copenhaver, Jr. on 3/29/2016. (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 and March 16, 2015, respectively, and held in
abeyance in part by an order of the court entered on July 31,
2015, that resolved most of the issues herein.
I.
The facts of this case are set out fully in the
court’s previous memorandum opinion and order.

See Memorandum

Opinion & Order, No. 2:14-cv-14438, 2015 WL 4621543 (S.D. W. Va.
July 31, 2015).

Only a brief recapitulation is provided here.

The plaintiff, Marshall Justice, submitted a Freedom
of Information Act request to the Mine Safety and Health
Administration (“MSHA”).

Justice sought all non-privileged

material related to MSHA’s investigation of an administrative
complaint earlier filed by Justice with the agency.

Of the 112

pages in the investigation file, MSHA eventually released fiftyone pages without redactions, released thirty-one with some
redactions, and withheld thirty completely.
On July 31, 2015, the court ordered MSHA to reconsider
its decision to withhold four of those pages, and to meet with
Justice to attempt an amicable resolution of this dispute.

If

an amicable resolution could not be reached, the court ordered
MSHA to submit the disputed pages for in camera review.

Those

four pages -- MSHA000090 through MSHA000093 -- are described in
MSHA’s Vaughn index as “Memoranda of Interview of MSHA
inspectors by MSHA Section 105(c) complaint investigator,
conducted in December of 2013,” henceforth referred to as two
“inspector MOIs.”

Each memorandum consists of two pages.

As

indicated by the Vaughn index, the first is comprised of
MSHA000090 and 91 and the second is composed of MSHA000092 and
93.
MSHA released the inspector MOIs to Justice, with
limited redactions, on August 18, 2015.

After meeting with

Justice and failing to reach a private resolution, MSHA
delivered unredacted copies of the inspector MOIs to the court
for in camera review.
2

II.
MSHA maintains that it properly redacted specified
portions of the inspector MOIs under either Exemption 5 or
Exemption 7(C), as relevant, in keeping with its “longstanding
practice of withholding special investigation statements taken
from inspectors[.]”
A.
Exemption 5 was thoroughly explained in the court’s
order of July 31, 2015.
(Exemption 5).

See July 31, 2015, Order at pp. 20-22

Suffice it here to say that Exemption 5 protects

from disclosure “inter-agency or intra-agency memorand[a] or
letters which would not be available by law to a party other
than an[other] agency in litigation with the agency.”
§ 552(b)(5).

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.”

Rein v.

Patent & Trademark Office, 553 F.3d 353, 371 (4th Cir. 2009);
see also Dep’t of the Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (Exemption 5 requires presence of
some separate, underlying evidentiary privilege to justify nondisclosure).

Exemption 5, like other FOIA exemptions, is

narrowly construed in favor of disclosure.

Mapother v. Dep’t of

Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993).
3

MSHA bases its Exemption 5 redactions of the inspector
MOIs on the “deliberative process” privilege.

The basic

purposes of the deliberative process privilege are to “encourage
frank discussion of issues within the government by insulating
government employees from the chilling effect likely to occur
were the process to be opened up to public scrutiny and to
protect against public confusion resulting from disclosure of
reasons and rationales that were not ultimately the basis for
the agency’s action.”

Keeper of the Mountains Found. v. Dept.

of Justice, 514 F. Supp. 2d 837, 850 (S.D. W. Va. 2007)
(Copenhaver, J.).

It is meant to ensure that administrative

decision-making is not done “in a fishbowl,” so to speak.

EPA

v. Mink, 410 U.S. 73, 87 (1973) (citing S. Rep. No. 89-813, at
44 (1965)).

To justify non-disclosure under the deliberative

process privilege, MSHA must show that the inspector MOIs are
both “predecisional” and “deliberative.”

Rein, 553 F.3d at 372.

The court has found, and the parties do not dispute, that the
inspector MOIs are predecisional.
MSHA aptly asserts that a single specified portion of
each of the inspector MOIs is deliberative because each contains
“specific opinion testimony related to the investigation,” and
“includes the opinions of MSHA inspectors regarding the merits
of Justice’s [MSHA] complaint.”

According to MSHA, the

4

testimony of the MSHA inspectors, if revealed, could “indicate
what is important for special investigation purposes,” and
release of these statements “could impair the quality of
inspectors’ investigations.”

Vaughn Index at 7.

In addition, a

redacted phrase at the end of the middle paragraph of the second
page of the first MOI (MSHA000091) is exempt as potentially
indicating the process followed by MSHA in its investigation.
The court concludes that MSHA has met its burden regarding its
decision to withhold the portions of the first and second
inspector MOIs redacted under Exemption 5.
B.
Exemption 7(C) was explained in the court’s July 31,
2015, order.

See July 31, 2015, Order at pp. 27-31.

It is

sufficient for present purposes briefly to note that 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 . . . (C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy.”
552(b)(7)(C).

5 U.S.C. §

By its terms, the standard is relatively easier

for the government to satisfy than other exemptions, requiring
only that it “could reasonably be expected” that disclosure
would constitute an invasion of privacy.
5

See Dept. of Justice

v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756
n. 9 (1989) (concluding that Congress intended for Exemption 7
to be easier to invoke than other exemptions).
The parties do not dispute that the MOIs were compiled
for law enforcement purposes.

The relevant question, then, is

whether disclosure of the portions of the two MOIs redacted
under Exemption 7, specifically the MSHA inspectors’ names and
titles, “could reasonably be expected to constitute an
unwarranted invasion of privacy.”

To make that determination,

the court must weigh the public’s interest in disclosure against
the relevant privacy interests.

Neely v. FBI, 208 F.3d 461,

463–64 (4th Cir. 2000).
Federal employees do not surrender their individual
privacy interests simply by accepting federal employment.

See

Dep’t of Defense v. FLRA, 510 U.S. 487, 497 (1994) (describing
federal employees’ privacy interest in their home addresses as
“non-trivial” and “not insubstantial”); Judicial Watch, Inc. v.
United States, 84 F. App’x 335, 339 (4th Cir. 2004); Neely, 208
F.3d at 464–65.

Further, a member of the public seeking

disclosure of information claimed to be exempt under Exemption
7(C) must “show that the public interest to be advanced [by
disclosure] is a significant one,” and that disclosure is
“likely to advance that interest.”
6

Nat’l Archives and Records

Admin. v. Favish, 541 U.S. 157, 171 (2004).

However, the public

interest in disclosure of a federal agent’s name is
“negligible,” Neely, 208 F.3d at 464, “non-existent” even, Dep’t
of Defense v. FLRA, 510 U.S. at 500.
Justice has provided no explanation as to how the
names or titles of low-level MSHA inspectors would reveal
information about the government’s operations.

The

“negligible,” “non-existent” public interest in disclosure of
the agents’ names or titles would be outweighed even by “a very
slight privacy interest.”
500.

Dep’t of Defense v. FLRA, 510 U.S. at

It is heavily outweighed by the “not insubstantial”

interest the MSHA inspectors have in the non-disclosure of their
names and titles.

Accordingly, MSHA has met its burden

regarding the redactions made under Exemption 7(C).
III.
For the foregoing reasons, it is hereby ORDERED that:
1) MSHA’s motion for summary judgment be, and it
hereby is, granted insofar as Justice seeks disclosure of
information in the inspector MOIs withheld under Exemption 5, as
described above, and that Justice’s motion for summary judgment
be, and it hereby is, denied to the same extent; and

7

2) MSHA’s motion for summary judgment be, and it
hereby is, granted insofar as Justice seeks disclosure of
information in the inspector MOIs withheld by MSHA under
Exemption 7(C), as discussed above, and Justice’s motion for
summary judgment be, and it hereby is, denied to the same
extent.
The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
DATED: March 29, 2016

John T. Copenhaver, Jr.
United States District Judge

8