From the Spring 2010 issue of The News Media & The Law, page 9.
In the aftermath of the West Virginia mine explosion in April that killed 29 miners, questions have emerged about how the nation’s most deadly mining accident in four decades occurred just a few years after regulations were overhauled to improve safety. Whether those questions will be answered depends largely on to what extent the mine safety agency agrees to open the investigation into the disaster and its results to the public.
The Mine Safety and Health Administration, a federal agency housed within the Department of Labor, is charged with keeping mines safe for workers and maintaining all records relating to mine health and safety violations. But critics charge that public access to those documents in recent years has proven to be more difficult than in the past. Those interested in the outcome of the agency’s investigation into the recent explosion at Upper Big Branch mine worry this time may be no different. Anything less than a fully open investigation process could obscure what happened from the public, putting future miners’ safety at risk.
Several weeks after the disaster, The Reporters Committee for Freedom of the Press and a coalition of media organizations sent a letter to the mine safety agency urging it to hold public hearings instead of interviews, which are observed by government representatives and attorneys but not the general public. The agency nonetheless announced it intended to go forward with closed interviews and release interview transcripts—unless confidentiality was requested or the release may jeopardize potential criminal investigations—after the investigation has concluded.
On May 10, the AFL-CIO’s United Mine Workers of America and explosion victims’ families filed a federal lawsuit in West Virginia requesting all investigation proceedings be conducted in public. Ten days later the court dismissed the case, citing a lack of jurisdiction.
Ellen Smith is no stranger to mining industry regulation or its secrecy. After reporting on the energy industry for several years, in 1994 she founded Mine Safety & Health News, which bills itself as the only independent publication dedicated to covering the regulation and safety of mines. Her expertise dealing with mine safety agency personnel and requesting its records transformed her from journalist to primary source after the disaster at Upper Big Branch Mine owned by Massey Energy Co. “My phone was jammed,” Smith said of answering calls from new organizations like The New York Times and The Washington Post.
Smith says that though the mine safety agency has typically been transparent, over the last decade she has witnessed a gradual shift away from an access-friendly environment toward a culture of nondisclosure. Instead of assuming records are open under the general spirit of the Freedom of Information Act, the agency now seems to strictly adhere to FOIA procedure in determining whether the records can be withheld.
Mine Safety & Health News correspondent Kathy Snyder, who spent 26 years in the mine safety agency’s public information office, says she has witnessed the same trend. “FOIA was supposed to set a tone to facilitate communication with the public,” she said.
A Labor Department representative disagreed. Amy Louviere, director of public affairs, says the agency “supports President Obama’s and Attorney General Holder’s goals for an open and transparent government” and that agency staff works to put information on its website.
Snyder describes an agency press office that has been pared down significantly in her time working in and covering the industry. In the late 1970s she estimates there was a public-information staff of about 15 people with five dedicated to handling press inquiries. Today Snyder says she interacts with what she calls a “skeleton crew” that is housed not in the agency but within the larger Department of Labor.
The Department of Labor says Louviere, a Labor Department employee who reports directly to a senior member of the department, is dedicated to responding to mining agency media inquiries and her physical office is located at the Mining Safety Health Administration. In Louviere’s absence, department employees provide backup public affairs support.
Smith cited mine inspectors’ handwritten notes, which provide context and detail about the scope and severity of violations, as an example of once-public records that are increasingly withheld. In the summer of 1993, the Department of Labor sent a memorandum to the Mine Safety Health Administration that instructed the agency to continue its “longstanding” practice of disclosing inspector notes and told it that FOIA exemptions should “not apply broadly.” When Smith filed recent public-records requests to obtain the notes, the agency, however, withheld them citing privacy exemptions. When asked for comment, Louviere responded that “inspection notes are releasable under FOIA” but that they “would be reviewed for privacy and whether the release of the notes would impair an ongoing investigation.”
Current law requires that actual citations be posted on bulletin boards at every coal mining site in the country so workers can review the mine’s safety history. The mine safety agency also posts citation information online. But Smith says expanding that practice and posting both the citations and inspector notes on the Internet would allow miners and interested parties to more comfortably review the records in their own homes and become “their own watchdogs.”
Even when a disaster did occur, Smith says in the past there was a presumption of disclosure. In the 1980s and 1990s, she said she would routinely interview the agency’s district managers but now they do not speak to reporters. Given the dwindling size of its press office, the agency “must empower its employees and district managers to talk to the press,” Smith said.
Louviere says though she generally handles routine media inquiries, district managers “certainly have the authority to speak to members of the press” and pointed out that during post-disaster recovery efforts, which can span several days, “the district manager is usually the appointed person to conduct briefings with the media to explain the progress of the rescue attempts.”
Reporters covering the Upper Big Branch explosion say their experience counters the department’s claims. Charleston Gazette reporter Ken Ward says he has repeatedly been denied interviews with district manager Norman Page, who is heading the investigation into the April disaster. “When I try to get a hold of him … I’m told he is unavailable for comment,” Ward said.
When he asks questions about mine inspection results, he is told such communications “must go through Amy [Louviere],” Ward added.
Perhaps the most valuable record generated after a mining disaster is the in-person interviews the agency conducts with anyone who witnessed the accident or may have relevant information. Under federal law, the agency can decide whether to hold formal public hearings or conduct an accident investigation in private. It often opts for the latter.
A mining accident in 1984 set the disclosure policy the agency followed for many years. After 27 miners died in a fire in Utah, media organizations filed a lawsuit to gain access to live witness interviews in Society of Professional Journalists v. Secretary of Labor. In that case a federal judge in Utah ruled that there was a constitutional right of access to witness interviews and granted the media access to informal hearings when other third parties, who were defined as individuals other than the witness, state officials, mine representatives or attorneys, were present. While the challenge was ongoing, the agency still provided transcripts of witness testimony as the hearings occurred.
No appellate court has ruled subsequently that a public right of access exists in such circumstances and other courts in the same region have rejected such a notion, but Synder says the Utah case was important because it helped establish an institutional precedent that transcripts, at the very least, would be available to the public. Regarding witness interview transcripts, the 1993 Department of Labor memorandum stated that “generally, once transcriptions of statements are available, they are released” and that “FOIA exemptions are applied to accident investigations in a limited way.”
The agency’s approach changed in 2002 during the investigation into the Quecreek mine flood, in which nine miners were trapped and later rescued. Since then, according to Snyder, the agency has treated interview transcripts more like confidential documents, and they are no longer presumptively available to the public. Louviere says the agency’s current policy is to release all “non-confidential” accident investigation interviews and witness transcripts at the conclusion of an investigation “unless MSHA determines that the release of those interview notes would impair pending or ongoing litigation.” Many interviews are conducted confidentially, Louviere added, and releasing transcripts “could reasonably be expected to divulge the identities of confidential sources.”
Snyder says it has been her experience that each new administration exercises greater control over the disclosure of information during its first year, but will eventually “let go of the reins.” During the Bush administration “it just got tighter and tighter,” she said.
Government documents reflect that gradual change. Memoranda show that the decision to release documents increasingly rests upon higher-level officials within the department and not upon FOIA disclosure officers or coordinators within the mine safety agency. One 2003 memorandum advised that public records requests about “hot/sensitive” issues or those made by the media, congressional offices and “institutional stakeholders” like trade associations, labor organizations and public interest groups had to be sent to the Office of Information and Public Affairs for review. According to the same memorandum, fee-waiver requests were to be sent to the same office. Even so, Louviere maintains the “majority of FOIA requests are handled by field FOIA Specialists and the release is done under the authority of the appropriate field Disclosure Officer.”
Despite the difficulties observed by Smith and Snyder, there may be some light at the end of the tunnel. Overall, Snyder says that the agency has done a better job releasing information about the Upper Big Branch accident than it has when dealing with other recent mine accidents, such as the 2006 West Virginia Sago mine and 2007 Utah Crandall Canyon mine disasters. The agency’s website has designated a single landing page where it posts documents related to the Upper Big Branch mine and its past citations, including inspector notes. “The MSHA website on the whole is quite useful” Snyder noted.
The slight reversal in the overall trend is perhaps due to the Obama administration, which has begun taking steps towards restoring the presumption of openness that once governed the Mine Safety Health Administration and other federal agencies. Despite the strides, secrecy still remains. While the mining union and media fight for access to the witness interviews, public pressure begins to wane. “We’ve already moved on to the oil spill in the Gulf [of Mexico],” Smith said.