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MSHA���s Special Assessment Forms Can Be Withheld in Discovery Process By Ellen Smith Mine operators are not entitled to MSHA���s ���special as��� sessment forms��� according to a ruling by ALJ Thomas McCarthy. The Federal Mine Safety and Health Review Commission judge said that special assessment review forms created by MSHA are part of the Secretary���s deliberative process privilege and are not discoverable material. The decision rejected motions by Big Ridge Inc., seeking to compel production of the SA forms. ALJs have been split on whether SA material should be released. During discovery, the Secretary provided the operator with a privilege log and listed the SA forms as protected by the deliberative process privilege, and declined to provide copies. The Commission has never determined if SA forms should be provided to operators during discovery, although in a case dating to 1991, MSHA was required to release to the operator portions of an internal MSHA special assessment form in Asarco Inc., 14 FMSHRC 1323 (Aug. 28, 1992), affirming in part and reversing in part 13 FMSHRC 1199 (May 20, 1991) (ALJ Weisberger). More recently, ALJs Michael Zielinki and Richard Man��� ning have issued orders to release special assessment forms. Zielinski ordered the Secretary to release all fac��� tual portions, including the inspector���s recommendation for special assessment. Manning noted the Secretary had been inconsistent in the past on whether the forms were protected by deliberative process privilege. Moreover, although the facts contained in the form may have been disclosed, they comprise part of the Secretary���s deliberative process in issuing the violation. Therefore, the presence of facts in the Review Form [do] not vitiate the privilege protecting the document.��� In denying Big Ridge���s motion to compel the release of the SAFs in this case, McCarthy agreed that the SAFs are part of a pre���decisional process that contain the inspec��� tor���s recommendations, and his supervisor���s, assistant district manager���s, and district manager���s review and comments on whether the violations at issue were fla��� grant and whether they warrant a special assessment. The documents are part of the decisional process used by MSHA that leads to a final agency decision. ���This is the essence of the deliberative process, a well���established privilege, embedded in American jurisprudence,��� the ALJ said. The operator argued that even if a document is ���pre���deci��� sional��� it can lose that status once the agency adopts it as its position, citing Coastal States Gas Corp. v. Dep���t. of Energy, 617 F.2d 854 (D.C. Cir. 1980). But that statement was dicta, the ALJ said, without any authority to back the conclusion. The Commission has rejected the idea that documents involving decided matters automatically fall outside the privilege. The litigation in this dispute is ongoing, the ALJ said, and the material sought contains advisory opinions and recommendations by MSHA employees concerning how flagrant violation and special assessment decisions are made. However, McCarthy said he relied on ALJ Alan Paez���s Dec. 23, 2010, unpublished decision in Humphrey���s Enterprises Inc. The materials sought are protected by the deliberative process privilege. It is a qualified privilege, the ALJ noted, that is subject to the balancing test in Bright Coal Co., 6 FMSHRC 2520 (Nov. 1984). If disclosure is essential to In this decision, ALJ Paez wrote that the mining com��� the fair determination of a case, the privilege must yield. pany assumed that the information con��� But in its motion, the operator failed to tained in the special assessment form was show why the information is important and BIG RIDGE INC., ���merely factual.��� Paez said, ���That assump��� essential to its case. 11/9/12, contest tion is incorrect because the Review Form proceeding, records MSHA���s analysis of whether a The ALJ denied the motion to compel dis��� Docket No. LAKE knowing and willful violation occurred. As covery and also denied the operator���s mo��� 2012 453-455R a result, the entire form is privileged. tion to strike the special assessments. E www.rockproducts.com ROCKproducts ��� DECEMBER 2012 43