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The Federal Mine Safety Act proves that silence really is golden From the Fall 2007 issue of The News Media…

The Federal Mine Safety Act proves that silence really is golden

From the Fall 2007 issue of The News Media & The Law, page 31.

By Loren Cochran

There’s real shoe-leather journalism happening when you drop by a city or county office unannounced to inspect public records. An uncomfortable silence fills the room as all bureaucratic eyes lock and whispers abound, wondering what watchdog meddling is going on.

The federal Freedom of Information Act robs requesters of the guilty pleasure of the uncomfortable silence.

Other than a few vetted reference materials “automatically” available via reading rooms, the FOIA does not allow for drop in inspections, even with readily accessible documents. The expectation of delay is so built into the federal statute that an entire dialect has developed. With FOIA, words like “queue” and phrases like “median processing time” have become common lingo to indicate an indefinite waiting period.

But wouldn’t it be great if there was an act of Congress that mandated information be made immediately available for the public and the press to review? Wouldn’t it be refreshing if the release of information was valued as an important part of correcting problems or avoiding them altogether?

The Federal Mine Safety & Health Act, first enacted in 1969, is remarkable because, at least in theory, it allows immediate access. Of course, in application, information accessibility has ebbed and flowed under the act over the years. But in its plain language, the act seems to appreciate what access advocates have said for years: Disclosing information promotes improvements, at both the private and the public level, because everyone involved is better educated.

Section 103(h) of the act provides that, “Except to the extent otherwise specifically provided by this Act, all records, information, reports, findings, citations, notices, orders, or decisions required or issued pursuant to or under this Act… shall be made available for public inspection.”

No other act of Congress puts such a premium on information availability.

“The whole history of the mine act is that in order to prevent further loss of life, or to try to target potential problems or (existing) problems right away, you have to get information into the hands of the public,” said Ellen Smith, who’s been covering mining issues for nearly 20 years.

Smith owns and edits Mine Safety and Health News, an award-winning newsletter that examines the mining industry, the Mine Act and MSHA. When Congress enacted the Mine Act, Smith said, “they want(ed) the public and the mining community to be informed to help prevent anymore disasters.”

Smith said that this administration has been markedly different in its approach to the Mine Act’s openness provisions. The Mine Safety and Health Administration or MSHA has been slower to react to requests, and generally less accessible, Smith said. Recently, the Department of Labor refused to allow reporters to be on hand for an independent review of MSHA’s actions at the Crandall Canyon Mine disaster in Utah.

It was the cave-in at the Crandall Canyon Mine that had Smith calling me on a Wednesday for help.

A document referenced in an agency coal mine inspector’s report about attempts to rescue the six miners trapped below was nowhere to be found and clearly available under the statute.

If governed by FOIA, there’s no legal action either Smith or I could take that would get her the information any quicker than the 20 days mandated for a response. But the Mine Act makes it clear: all records and information “shall be made available for public inspection.”

Fortunately, the agency’s headquarters are across the street from the Reporters Committee in Virginia. So, armed with a copy of the statute, I told our intern Adam we were going on a field trip.

We crossed Wilson Boulevard, walked in the building and rode the elevator up to MSHA’s headquarters. A receptionist greeted us warmly as we entered. I asked for help obtaining a copy of the document sought by Ellen Smith, and the receptionist made a call.

A man stormed out of a nearby office toward us. I smiled, introduced myself and explained what I was seeking to view.

He barked back, “File a FOIA!”

At any other time, in virtually any other federal office, the man’s response would have been legally correct. To inspect federal records, I would normally be required to file a FOIA request and wait. But this time, I had the foresight of Congress on my side. No waiting period, no administrative requirements, no expectation of delay.

When I asserted my right of inspection, the agency man was stunned. And at that point there was an uncomfortable silence so rarely witnessed in federal agencies.

As the moment passed, the man gathered his wits and hollered at the receptionist, “Call the solicitor!” With that, he rushed back into his office and shut the door, never to be seen by me or Adam again.

In a perfect world, I would tell you I received the record shortly thereafter. Unfortunately, as is often the case, the end result was more complicated. The solicitor’s office indeed met me minutes later. But after some runaround, I was told that the document allegedly never existed and was instead referenced in error by the coal mine inspector on-site at Crandall Canyon.

More important, however, was that I got immediate attention, and resolution to the entire matter occurred quickly; a resolution impossible under FOIA.

It’s a lesson for open government advocates. Future legislative reform efforts need to push for laws with affirmative disclosure language like that found in the Mine Act. Make public inspection a regular right … if for no other reason, than to increase the uncomfortable silences here in Washington.

Loren Cochran is director of the Freedom of Information Service Center at the Reporters Committee.