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  1. Freedom of Information Two miners died in a sudden expulsion of coal and rock during a mining operation at a West Virginia…

Two miners died in a sudden expulsion of coal and rock during a mining operation at a West Virginia coal mine in May, and the reporter covering the event still does not have the inspection records of the previously-cited mine.

The Charleston Gazette’s coal mine reporter Ken Ward Jr. interviewed mine operators, government officials and miners about the disaster that struck Brody Coal Mine No. 1 on the evening of May 12, but he is still waiting for a response from the Mine Safety and Health Administration in the form of mine inspection reports.

“I don’t have much hope of seeing those [documents] for many more months after this,” Ward said.

Shortly after the fatalities, Ward filed a records request under the Freedom of Information Act with the Mine Safety and Health Administration, asking for recent inspection reports from Brody Coal Mine No. 1, a subsidiary of Patriot Coal.

Ward said this mine’s inspection records are particularly important; MSHA, an agency of the U.S. Department of Labor, placed Brody No. 1 on its pattern of violation list, which means it had been cited by inspectors enough times that MSHA made monitoring the mine a priority.

“It was certainly a mine that had been identified by federal regulators as one they were concerned about,” Ward said.

The mine’s inspection reports would be able to show if the mine had been cited by an inspector for other safety concerns, such as a previous explosion or a buildup of coal dust. Such signs could have served as a warning to the impending fatalities, Ward said.

“What we want to see is what sort of inspections were taking place prior to this incident,” Ward said. “Time and again, what happens [when] miners were killed on the job is there were plenty of warnings, and the company didn’t do enough to prevent these major disasters.”

Reporters need access to updated inspection reports and explanations for citations and rule-violations to accurately cover any mine site — from small, local salt mines and river dredging projects to mountaintop removal sites.

The Mine Safety and Health Administration holds the documents overseeing a variety of mining projects within every state, including gravel mine sites, sidewalk slate quarries, river dredging operations and salt mines, said Ellen Smith, owner and managing editor of Mine Safety and Health News, a bi-weekly newsletter covering federal mine safety and health law and regulations.

“Everyone has mining near them, so every reporter should know how to get this information,” Smith said.

Because the documents shared between mine operators and government agencies can ensure accountability of mine sites and provide warnings of impending accidents, there are many avenues to access information on mines.

However, several of those access points to information are slow-moving, if not blocked altogether, according to reporters who cover mining.

Online databases

Before making a formal records request to MSHA, Smith said she suggests that reporters first investigate MSHA’s Mine Data Retrieval System, an online resource that provides a spreadsheet of inspections, violations, fines, injuries and fatalities accrued by a mine site, sorted by year.

Reporters and citizens can access the data retrieval system from the “Data Transparency” section of MSHA’s home page, and from there they can search for a specific mine, operator or contractor, or they can search by state and county under the “Other Search Options” section.

Once a reporter has targeted a mine, Smith said a reporter can look for inspections, fatalities, extensive injuries, or high fines and request documents related to the incident, such as inspector or mine operator reports that would include more details on a situation.

Freedom of Information Act

MSHA, like the rest of the Department of Labor, must comply with the Freedom of Information Act and supply documents such as mine inspection reports, citations issued, injury reports and financial information.

MSHA files are still subject to the nine exemptions built into FOIA, and reporters should be particularly aware that complaint information documents and interviews of miners may be withheld under Exemption 3, which means an exemption to FOIA created by another federal law.

Smith said she gives MSHA credit for maintaining the online database of each mine’s inspections, citations, orders and violations, but she does not believe MSHA complies with FOIA.

Smith tries not to file FOIA requests because MSHA generally takes more than a year to send documents, and when she does receive documents, they’re heavily redacted.

The greatest struggle Smith encountered with FOIA followed a coal waste — called coal slurry — leak from a Martin County Coal Corporation waste containment pond in October 2000, clogging rivers in Kentucky and West Virginia with thick, gray goop.

In 2002, Smith said filed a records request to the Department of Labor’s Office of the Inspector General for citations and orders for the corporation after a whistleblower accused political appointees of changing information on citations.

OIG’s response to her FOIA request was as choked as the rivers, requiring more than seven years to gain access to the documents Smith needed, she said.

Smith received documents from OIG about a year after her initial request, but more than 50 percent of the content was redacted.

“There was so much information redacted that you couldn’t tell what was going on,” Smith said.

Smith said she refiled the request in 2004, but she again received heavily redacted documents.

She began to work with lawyers from the D.C. law firm Holland & Knight to appeal the response. The Department of Labor passed her the documents — mostly unredacted — in 2010, as she prepared to file suit.

“What does that tell you: it was releasable, and that’s the kind of games that we’re seeing with FOIA in this country,” Smith said. “It’s not just MSHA, and it’s not just me.”

By the time she received the documents, Smith said the information was not relevant to readers.

“Even if you brought up issues that may be suspected, the case was closed,” Smith said. “It doesn’t matter anymore because who could anyone go to.”

Ward said he’s recently experienced similar delays from MSHA, when in the past he could call an agent from MSHA and get a quick answer.

“We complain to MSHA and the Labor Department in the hopes of convincing them that they should start acting in a way that lives up to the transparency promises that the president made,” Ward said.

MSHA processed 1,816 FOIA requests, but only 30 percent of those requests were granted in full, according to the Department of Labor’s FY13 FOIA annual report.

The Department of Labor did not respond to requests for interview, and MSHA said its FOIA representatives do not sit for interviews with the press.

In her 27 years of experience covering mines throughout the nation, Smith said she’s had better luck receiving responses from the Federal Mine Safety and Health Review Commission.

When a mine operator challenges a citation by an inspector, it goes before the commission, and the agency will list the citation and inspection notes in its docket. In this way, a reporter can file a FOIA request to the commission for some of the same documents that should be available with a FOIA request to MSHA, Smith said.

Smith said she generally receives responses from the commission within the 20 days the federal government has to respond to FOIA requests, and she’s received responses in as few as two or three days.

Mine Safety and Health Act

Many of the records a reporter could request from FOIA, and even some that are exempt under FOIA, are mandated to be made publicly available under the Federal Mine Safety and Health Act of 1977, commonly known as the Mine Act.

Smith said she cites sections 103(h) and 109(b) of the Mine Act, which open all information, reports, findings, citations, orders, decisions, and records to public inspection, in order to receiver faster responses to her requests for information.

“The legislative history [of the Mine Act] points to a very strong belief that openness would lead to safer operating conditions,” Smith said.

Recently, Smith has had some difficulty in asking MSHA to comply with the Mine Act. MSHA will redact information relevant to mine accidents, such as miner witness interviews, the number of miners involved in an accident, and the job titles of those involved, stating that releasing that information will violate individual miners’ privacy.

“[Miners are] working in a highly regulated industry, and you don’t have the typical rights of privacy because we want everything out in the open,” Smith said. “Yeah, you’re going to get questioned.”

Smith said she had previously been able to receive these documents under the Mine Act.

She first began to notice the change in MSHA’s responses after the Sept. 11 terrorist attacks, Smith said.

Twelve days after 9/11, two explosions hit an Alabama mine, Jim Walters Resources No. 5 mine, killing 13 workers. Smith requested miner witness interviews from the event under the Mine Act, but she said she lost track of the requests in the wake of 9/11 coverage.

Smith realized the impact of the Jim Walters accident five years later, when three major mine disasters occurred in the same year — Sago and Aracoma mines in West Virginia and Darby Mine in Kentucky.

Smith said she requested miner witness interviews for all three disasters under the Mine Act, but MSHA denied her requests, saying that they had not provided witness interviews after the Jim Walter Resources disaster, so they would not now.

Smith said she can understand why miners and operators would not want their names publicly available, but because mining is an inherently dangerous profession, family and community members should be able to check documents and question the nature of mines’ and workers’ operations.

“It might create a conflict in the community, but that [openness] was the whole point of the Mine Act,” Smith said. “[This information] is supposed to be out there and on the table, and that’s what keeps you honest.”