Journalist receives government records after 7 years

Rosemary Lane | Freedom of Information | Feature | October 7, 2010

The editor of a mining industry newsletter received additional government records Monday regarding the investigation into one of the worst environmental accidents in southeastern U.S. history after seven years of appealing the government's decisions to disclose redacted versions of the records.

Ellen Smith, the editor of Mine Safety and Health News, filed a complaint in late July against the Department of Labor because of its failure to release the documents she requested in full. Smith received mostly unredacted versions of the records on Oct. 4.

“It’s like a bittersweet victory,” Smith said. “There’s still information that’s withheld. It does provide answers, but it raises more questions.”

The Department of Labor did not return phone calls seeking comment. Smith said she did not know why the department decided to release the documents without major redactions after withholding them for so long.

“I don’t know if they just don’t want it to go to court, I don’t know if it’s because there are more important things that the Justice Department has to deal with, I only know that the system is very, very broken,” Smith said.

In 2003, Smith requested the Department of Labor Office of Inspector General’s investigation report of the Mine Safety and Health Administration’s handling of the Martin County Coal Corp. spill in Kentucky on Oct. 11, 2000. A former administration employee had alleged that the agency was trying to cover up the disaster, and the Office of Inspector General launched an investigation, Smith said.

The Martin County Coal spill, billed to be 25 times larger than the Exxon Valdez oil spill, according to news reports, occurred when more than 300 million gallons of coal slurry, a toxic waste product, broke through the bottom of a reservoir in Martin County, seeping into more than 100 miles of rivers and impacting properties in Kentucky and West Virginia.

Smith initially received the report with more than 50 percent of the content redacted, including names and a section of mine seals below the impoundment. The mine seals failed when the sludge broke through them into an abandoned mine below the reservoir, and Smith considered at least 40 other U.S. reservoirs at risk too, she said. She shared the report on a 2004 episode of "60 Minutes."

Smith decided to wait until a new presidential administration took office to file a new request for the redacted names and section on mine seals, she said. On the day Barack Obama took office, Smith filed another federal Freedom of Information Act request for the Department of Labor's report, which she received three days later.

The report she received in response contained 20 instances in which either the Freedom of Information Act exemption cited was changed or a new exemption was added to the list that Smith compiled in a Feb. 2, 2009 appeal letter sent to the Department of Labor's Office of the Solicitor. The redactions mainly concerned intra-agency memorandums and government officials’ personal information and privacy, which are covered by Exemptions 2(b), 5, 6 and 7(c) to the FOIA.

“I know there are FOIA requests that are far more serious than mine, but with the atmosphere that the administration created on openness, I just thought that I had it, I really felt like I had it,” Smith said. “I’m done playing games this is taking up so much of my life.”

After nine months without a response to her February appeal, Smith sent another request to the Office of the Solicitor saying if she did not receive a response within a few days, she would file a lawsuit. Smith did receive a response, but the records still contained redactions on the mine seals section, she said.

Smith then enlisted the help of the Office of Government Information Services, which was created under the Open Government Act of 2007 to solve FOIA disputes between the government and requesters. Due to a lack of communication and unreturned phone calls from the Labor Department, the agency was unable to assist Smith, according to an Aug. 17 letter it sent to Smith.

Smith then called upon lawyers Charles Tobin and Drew Shenkman of the Washington, D.C. law firm Holland & Knight, who assisted her pro bono.

After a series of additional partially-redacted responses from the Department of Labor, Smith, through her attorneys, filed a lawsuit on July 23. Days before a summary judgment briefing schedule was to begin, Smith received a copy of the report with the section on mine seals unredacted.

“So it took [nearly] 10 years to the day [since the coal accident] and six months since the tragic Upper Big Branch [W.Va.] mine disaster, for the [Department of Labor] to release a section of the [Office of Inspector General] report directly related to the health and safety of miners and the people of Kentucky and the entire mining region of the U.S.,” Shenkman said in a release. “We believe that the DOL continues to unlawfully withhold information related to the October 11, 2000 MCCC [Martin County Coal Corp.] disaster, so we are keeping all legal options open.”

Smith said she is considering her next move.

“At this point reporters don’t have a choice but to call the bluff on this,” she said. “I just don’t know what other choices there are. We have an executive order [from President Obama supporting disclosure] that’s not being adhered to, now what?”