MSHA Provides Test of Obama's FOIA Policies

Despite the Obama administration's consistent theme of creating a new, more open government, the Mine Safety and Health Administration (MSHA) has yet to prove it will comply with the administration's Freedom of Information Act (FOIA) policies. In its response to a 2008 FOIA request, MSHA refused to release information that has been consistently released in the past. An appeal of that response provides a test of the administration's approach to implementing its openness policies.

On his first full day in office, President Barack Obama issued a memorandum [1] about the use of FOIA, writing that the presumption regarding government disclosure should be: "In the face of doubt, openness prevails." Subsequently, Attorney General Eric Holder issued a memo [2] to executive branch department and agency heads implementing Obama's directive. The Holder memo states, "The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law."

The memo further states, "[A]n agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the record falls within the scope of a FOIA exemption."

According to an article in Mine Safety and Health News [3] (subscription), a mine safety attorney, Tony Oppegard, filed a FOIA request Oct. 28, 2008, to MSHA for a client's investigation file, including witness statements. He had filed 135 such requests in similar cases, and MSHA had supplied witness statements. In its Nov. 24, 2008, reply, however, MSHA withheld every witness statement under the FOIA exemption related to law enforcement purposes and cited fear of disclosing confidential sources.

MSHA withheld the witness statements under Exemption 7 (information compiled for law enforcement purposes), and specifically under section 7(C) (an unwarranted invasion of personal privacy) and section 7(D) (disclosure of the identity of a confidential source).

The Department of Justice's Office of Information Policy (OIP) issued guidance [4] to the agencies about implementing the new administration's presumption of openness. The guidance offers specific examples to agencies of how they should apply their discretion in releasing information. It states that discretionary releases are reasonable under Exemption 7. "Documents protected by the remaining Exemptions, Exemptions 2, 5, 7, 8, and 9, can all be subjects of discretionary release," the guidance notes. In addition, the guidance addresses sections C and D of Exemption 7 specifically and notes that discretionary releases are possible under both.

In Oppegard's April 16 appeal letter [5] to Mark Malecki, MSHA's counsel for trial litigation, Oppegard called MSHA's position on withholding the witness statements "the most disappointing response to a FOIA request regarding a safety discrimination case that I have ever received." He called MSHA's decision to withhold the information under the two reasons cited in MSHA's letter "utter rubbish."

”Miners can only hope – and trust – that when the new Assistant Secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners," Oppegard wrote. He asked Malecki to review, under the Obama administration’s new FOIA policies, MSHA's decision to withhold the information that the agency had routinely provided for the past 25 years.

Mine Safety and Health News (MSHN) reports that it, too, has had difficulty extracting information from MSHA through FOIA requests and largely placed the blame on the Bush administration's approach to FOIA. An editorial in the same issue of its newsletter notes, "MSHA is offering ridiculous redactions and refusing to divulge information which, previous to 2002, was openly shared with the public."

In one instance, MSHN requested the tape of a one-day training seminar MSHA held on the use of FOIA. The request was made four years ago and has never been answered. In another instance, MSHN asked for information regarding how MSHA made a legal determination of what constituted a haul road. MSHA supplied a response heavily redacted based on a FOIA exemption regarding trade secrets.

Lastly, MSHN has appealed another FOIA response from MSHA because of heavy redactions. In the appeal for a full report issued by the agency's inspector general, MSHN received another heavily redacted version, but this time, some of the redactions were made based on different FOIA exemptions. In its editorial, MSHN writes, "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press."

According to the Department of Labor's (DOL) website [6], initial FOIA requests to MSHA are handled by the agency's district offices, and appeals are centralized in DOL's Office of the Solicitor in Washington, DC.

As OMB Watch noted in a May 5 article [7], agencies have been slow to implement the administration's openness policies. The change in the mindset of agencies will have to come from the president, OIP, and agency FOIA officers who have the responsibility for changing the kind of secrecy-first approach that MSHA and other agencies display.