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Judge allows some Kentucky coal spill info to remain secret

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  1. Freedom of Information
A federal judge on Tuesday denied a journalist’s attempt to obtain more information about a federal investigation into whether mine…

A federal judge on Tuesday denied a journalist’s attempt to obtain more information about a federal investigation into whether mine safety officials tried to cover up an environmental accident that occurred in Kentucky in 2000.

In Smith v. Department of Labor, U.S. District Court Judge James E. Boasberg ruled that the government had properly redacted 77 lines of text on eight pages of an Office of the Inspector General Report that Ellen Smith, editor of Mine Safety and Health News, had requested regarding the 2000 Martin County, Ky., coal spill.

Boasberg’s decision is the latest development in Smith’s eight-year pursuit of documents detailing the accident, considered by many to be one of the worst environmental disasters in the southeastern U.S.

The spill began when more than 300 million gallons of coal slurry, a toxic waste product, broke through the bottom of a reservoir in Martin County, Ky. The slurry, estimated to be 25 times larger than the Exxon Valdez oil spill, seeped into more than 100 miles of nearby rivers and properties in Kentucky and West Virginia.

In the wake of the spill and cleanup efforts overseen by the federal Mine Safety and Health Administration, a former administrative employee alleged that the agency was trying to cover up the disaster, prompting the investigation by the Office of the Inspector General.

During the course of the lawsuit, initiated after Smith filed two separate Freedom of Information Act requests for the report, the government turned over additional related documents and released additional pages within the Inspector General report that had been previously redacted. Eventually, only 77 lines of redactions remained at issue in Tuesday's ruling.

Boasberg said six lines, redacted under a FOIA exemption designed to shield internal government deliberations, were properly withheld because the redactions involved debates among employees about whether to pursue a particular citation that the agency ultimately decided not to issue.

The remaining redactions involving personal or job-performance information of low-level administration employees were properly withheld under FOIA exemptions designed to protect individuals' privacy, Boasberg said.

When determining whether personal information can be released, a court balances the public interest in releasing the information against the privacy interests of the individuals named in the documents.

In this case, if the information was released it could bring the individuals unwelcome attention and potentially subject them to embarrassment and jealousy from co-workers, Boasberg said.

In her summary judgment motion seeking to reveal the redacted information, Smith argued that the government had merely concluded that the individuals' privacy interests would be invaded, rather than proving that such a privacy invasion was likely to occur.

She also argued that privacy concerns should not be used to shield government employees from public scrutiny about the health and safety of mining industry workers and the effect mining activities have on the environment and communities.

Dismissing Smith's arguments, Boasberg said the public interest in disclosure did not outweigh the individuals’ privacy interest. Boasberg found that Smith had the burden to show the public interest at stake and she failed to show anything other than "unsubstantiated allegations of a government cover-up" and, even if the allegations Smith cited were legitimate, the information that had been redacted, which was reviewed by the judge in chambers, did not shed light on the allegations made by Smith.

While disappointed with the decision, Smith’s attorney, Drew Shenkman, said his client was pleased to get the report with so many fewer redactions. Shenkman said that the unredacted portions released after the suit was filed showed that federal officials signed off on using inadequate measures to secure the reservoir that ultimately led to the spill.

Shenkman would not say whether Smith planned to appeal the decision.

“We obviously are looking for all information to be released,” he said. “But through this lawsuit we were able to uncover the precipitating factor for why this disaster occurred.”