Utahamerican Energy, Inc. v. Mine Safety and Health Administration ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UTAHAMERICAN ENERGY, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1780 (RWR)
)
MINE SAFETY AND HEALTH )
ADMINISTRATION, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Utahamerican Energy, Inc. (“UEI”) brings this
action against the Mine Safety and Health Administration
(“MSHA”), alleging a violation of the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, arising out of UEI’s request for
documents regarding the Crandall Canyon Mine. The parties have
filed cross-motions for summary judgment. Because MSHA’s search
for documents construed too narrowly UEI’s request and was not
reasonably likely to locate all responsive documents, the
parties’ cross-motions for summary judgment will be denied
without prejudice to refiling after MSHA conducts an adequate
search for responsive documents.
BACKGROUND
On August 6, 2007, the Crandall Canyon Mine (“the mine”) in
Huntington, Utah, partially collapsed, killing six miners.
During a rescue mission ten days later, the mine partially
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collapsed for a second time, killing three rescuers. (Pl.’s
Stmt. of Material Facts as to Which There Is No Genuine Issue
(“Pl.’s Stmt.”) ¶ 1.) Genwal Resources, Inc., a subsidiary of
UEI, operated the mine. (Am Compl. ¶ 2.) In response to the
collapses, several government entities began investigating the
events leading to the accidents, the accidents themselves, and
the rescue process. The Office of the Inspector General (“OIG”)
at the U.S. Department of Labor (“DOL”), the Chairman of the U.S.
Senate Committee on Health, Education, Labor and Pensions
(“Senate Committee”), and the Chairman of the U.S. House of
Representatives Committee on Education and Labor (“House
Committee”) all conducted investigations. (Pl.’s Stmt. ¶ 2.)
Each sought documents from MSHA. OIG requested documents
from 2006 and 2007 relating to inspections completed at the mine,
hazardous condition complaints received about the mine, and
safety citations issued at the mine, and documents without date
restriction related to MSHA’s approval of mining at the Crandall
Canyon site. (Def.’s Mem. of P. & A. in Opp’n to Pl.’s Cross-
Motion for Summ. J. and in Reply to Pl.’s Opp’n to Def.’s Mots.
for Partial Summ J. (“Def.’s Opp’n & Reply”), 2d Suppl. Silvey
Decl., Attachs. Referenced in ¶ 3, Lewis Mem. at 1-2.) The
Senate Committee requested, among other information, all
documents stored in a comprehensive file about the mine,
documents relating to petitions for changes to mine plans,
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information relating to inspections of the mine, documentation of
meetings and communications between MSHA officials and various
energy companies, Crandall Canyon mine maps and plans beginning
in 2004, and other documents about the mine from 2006 and 2007.
(Id., Attachs. Referenced in ¶ 3, Kennedy Letter at 3-7.)
Following up on its initial request, the Senate Committee also
requested documents relating to MSHA’s emergency response and
rescue effort. (Id., Kennedy and Murray Suppl. Letter.) The
House Committee requested documentation of communications between
DOL, of which MSHA is part, and representatives of various energy
companies beginning in 2001; minutes from those meetings; mine
records in a specific database relating to events between 2001
and 2007; the employment record of the MSHA District Manager for
the district in which the mine was located; and any complaints
made to DOL about the mine beginning in 2001. (Id., Attachs.
Referenced in ¶ 3, Miller Letter at 1-2.) Following up on its
initial request, the House Committee also requested documents
related to DOL’s role in the rescue efforts. (Id., Miller Suppl.
Letter.) The House Committee subpoenaed all documents regarding
communications related to the mine beginning in March 2006 and
communications between the CEO of the company that owns the mine
and various DOL officials. (Id., Attachs. Referenced in ¶ 3,
Subpoena Schedule ¶¶ 1-2.)
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On September 25, 2007, UEI sent a letter to MSHA requesting
documents under FOIA. UEI asked that MSHA produce “[a]ny and all
documents in the actual or constructive possession of [MSHA],”
including emails, “which relate in any way to the Crandall Canyon
Mine[.]” (Pl.’s Stmt. ¶ 9; Am. Compl., Ex. A.) UEI also
requested that MSHA produce all documents that related in any way
to the two accidents at the mine, and which had been or would be
forwarded to the Senate Committee, House Committee, or OIG.
(Id.)
“[S]hortly before MSHA received UEI’s September 25, 2007
FOIA request, MSHA had already initiated a search for [non-email]
documents that included those requested by UEI as part of MSHA’s
efforts” to respond to the OIG and Congressional investigations.
(Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Partial Summ.
J., Docket #18 (“Def.’s Non-email Mem.”), Silvey Decl. ¶ 10.)
The agency sent “[e]-mail requests to the affected Coal Mine
Safety and Health Districts and other MSHA program areas that may
have had responsive documents[.]” (Id. ¶ 10.) MSHA also sent
emails to appropriate managers and other individuals asking for
documents concerning the mine, and it followed up with “key
district contacts” to complete the search process. (Id.) Two
days before MSHA’s response to UEI’s request was due, UEI
contacted MSHA on the status of its request and offered to
receive a partial response as an interim measure. (Pl.’s Stmt.
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¶ 10.) After several exchanges, UEI and MSHA agreed to a partial
disclosure of documents relating to the mine, including the
portion that MSHA had submitted previously to the Senate
Committee, pending the continued processing of UEI’s request.
(Id.; Am. Compl., Ex. B.) Three months later, MSHA produced the
partial documents promised as an interim measure and redacted
information in those documents under various FOIA exemptions.
(Pl.’s Stmt. ¶ 11; Am Compl., Ex. C.) However, MSHA did not
provide an index or any specific explanation as to what documents
were redacted or why.1 (Am. Compl., Ex. C.)
In addition to its search for non-email documents, MSHA
initiated its search on September 28, 2007 for emails related to
the mine accidents in response to the House Committee subpoena
before it received UEI’s FOIA request. (Def.’s Mem. of P. & A.
in Supp. of Def.’s Mot. for Partial Summ. J., Docket #23 (“Def.’s
Email Mem.”), Silvey Suppl. Decl. ¶ 7.) The agency’s “Office of
Program Evaluation and Information Resources began a search for
e-mails from all MSHA employees identified as having been
involved ‘either directly or indirectly with the Crandall Canyon
event[,]’” using the terms “Crandall,” “Murray,” and “Agapito” to
1
After UEI filed its complaint, MSHA made additional
incremental responses to UEI’s request. (Pl.’s Stmt. ¶¶ 22, 24,
28-30.)
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generate responsive documents.2 MSHA instructed its officials to
search for emails that related to the Crandall Canyon Mine
accident without date limitations. (Id.) This search generated
over 300,000 email results responsive to the Congressional
subpoena. MSHA informed UEI of the large volume and high
associated review costs of its email search result and proposed
to UEI the possibility of negotiating a reduced email production.
UEI agreed to limit the search for emails to MSHA officials
Richard Stickler, Kevin Stricklin, and Allyn Davis.3 (Id. ¶ 9.)
UEI brought this action complaining of improper redactions
and incomplete production. MSHA has filed two motions for
partial summary judgment, one with respect to all responsive
documents except emails, and one with respect to emails,4 arguing
2
“The term ‘Crandall’ was used because the accidents
occurred at the Crandall Canyon Mine. The term ‘Murray’ was used
because Robert Murray, President of Murray Energy Corporation, is
the owner of Crandall Canyon Mine. The term ‘Agapito’ was used
because Agapito Associates, Inc. was a contractor at Crandall
Canyon.” (Def.’s Email Mem., Silvey Suppl. Decl. ¶ 7 n.1.)
3
Richard Stickler is the former Assistant Secretary of
Labor for Mine Safety and Health, Kevin Stricklin is the
Administrator for the Coal Mine Safety and Health Division, and
Allyn Davis is the District Manager of the Coal Mine Safety and
Health Division for the district in which the Crandall Canyon
mine is located. (Def.’s Email Mem., Silvey Suppl. Decl. ¶ 9.)
4
Neither motion for partial summary judgment properly seeks
summary judgment on an entire claim in the complaint because the
plaintiff does not allege separate claims for the email and non-
email documents. See LaPrade v. Abramson, Civil Action No. 97-10
(RWR), 2006 WL 3469532, at *8 (D.D.C. Nov. 29, 2006) (holding
that under Rule 56, a “[j]udgment may not be entered as to a fact
or an element of a claim”). However, the two motions together
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that it has conducted an adequate search in response to UEI’s
FOIA request and has disclosed all non-exempt documents
responsive to UEI’s request. UEI has filed a cross-motion for
summary judgment, arguing that MSHA’s search was inadequate and
seeking “disclosure of additional responsive information MSHA has
not produced or improperly continues to withhold from
disclosure.” (Pl.’s Cross-Mot. for Summ. J. & Opp’n to Def.’s
Mots. for Partial Summ. J. (“Pl.’s Mot.”) at 1.)
DISCUSSION
Summary judgment is appropriate when there exists no genuine
issue as to any material fact and the moving party is entitled to
a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also
Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). The burden
falls on the moving party to provide a sufficient factual record
that demonstrates the absence of a genuine issue of material
fact. See Beard v. Banks, 548 U.S. 521, 529 (2006). A court
must draw all reasonable inferences from the evidentiary record
in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In a FOIA suit, an agency is
entitled to summary judgment if it demonstrates that no material
facts are in dispute and that all information that falls within
the class requested either has been produced, is unidentifiable,
seek summary judgment on all the claims in UEI’s complaint and
therefore will be considered.
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or is exempt from disclosure. Students Against Genocide v. Dep’t
of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. Dep’t
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court
must conduct a de novo review of the record in a FOIA case, and
the agency resisting disclosure bears the burden of persuasion in
defending its action. 5 U.S.C. § 552(a)(4)(B); see also Long v.
Dep’t of Justice, 450 F. Supp. 2d 42, 53 (D.D.C. 2006).
FOIA requires that government agencies make good faith
efforts to conduct reasonable searches for all records that are
responsive to FOIA requests. Baker & Hostetler LLP v. Dep’t of
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). What constitutes a
reasonable search will vary from case to case, Truitt v. Dep’t of
State, 897 F.2d 540, 542 (D.C. Cir. 1990), but an agency must
construe the scope of a request liberally. Nation Magazine,
Wash. Bureau v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
An agency must demonstrate that its good faith search effort used
“‘methods which can be reasonably expected to produce the
information requested.’” Baker & Hostetler LLP, 473 F.3d at 318
(quoting Nation Magazine, 71 F.3d at 890). A search’s adequacy
is not determined by its results, but by the reasonableness of
the method, Casillas v. Dep’t of Justice, 672 F. Supp. 2d 45, 48
(D.D.C. 2009), since “particular documents may have been
accidentally lost or destroyed, or a reasonable and thorough
search may have missed them.” Iturralde v. Comptroller of
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Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). An agency is
entitled to use detailed non-conclusory affidavits or
declarations that are submitted in good faith to show that the
search it conducted in response to a FOIA request is adequate.
Steinberg v. Dep’t of Justice, 23 F.3d 548, 551-52 (D.C. Cir.
1994) (stating that the affidavits or declarations must describe
“what records were searched, by whom, and through what process”).
“[I]nitial delays in responding to a FOIA request are rarely, if
ever, grounds for discrediting later affidavits by the agency.”
Iturralde, 315 F.3d at 315. However, “‘[w]here the agency's
responses raise serious doubts as to the completeness of the
search or are for some other reason unsatisfactory, summary
judgment in the government's favor would usually be
inappropriate.’” Wilderness Soc’y v. Bureau of Land Mgmt., Civil
Action No. 01-2210 (RBW), 2003 WL 255971, at *5 (D.D.C. Jan. 15,
2003) (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir.
1982)).
I. ADEQUACY OF SEARCH FOR NON-EMAIL DOCUMENTS
UEI argues that MSHA’s search was inadequate because it
centered the search around the Congressional and OIG requests for
documents, and not around UEI’s FOIA request. (Pl.’s Mot. at
14.) MSHA responds that the searches in response to the
Congressional and OIG requests were “extremely broad[,]” and that
MSHA had already “‘searched in the logical locations in which
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other documents responsive to UEI’s request reasonably would be
located.’” (Def.’s Opp’n & Reply at 4-5 (quoting 2d Suppl.
Silvey Decl. ¶ 6).) However, MSHA began its search in response
to the Congressional and OIG requests, and it did not modify the
parameters of the search to accommodate UEI’s broader FOIA
request. (See Def.’s Non-email Mem., Silvey Decl. ¶¶ 10-12;
Def.’s Email Mem., Silvey Suppl. Decl. ¶¶ 6-9.)
MSHA’s search in response to the OIG and Congressional
requests contained subject matter and time restrictions that were
absent in UEI’s FOIA request, which sought “[a]ny and all
documents in the actual or constructive possession of [MSHA]
which relate in any way to the Crandall Canyon Mine[.]” (Pl.’s
Stmt. ¶ 9; Am. Compl., Ex A.) OIG limited its request to
documents relating to inspections completed at the mine,
hazardous condition complaints received about the mine, safety
citations issued at the mine, and MSHA’s approval of mining at
the Crandall Canyon site. (Def.’s Opp’n & Reply, 2d Suppl.
Silvey Decl., Attachs. Referenced in ¶ 3, Lewis Mem. at 1-2.)
Although the Senate Committee’s request was far broader than that
of OIG, the Senate Committee limited its request for documents
relating to the mine to those stored in particular files, those
relating to specific subject matters, such as mine plans and
inspections, and those memorializing meetings and communications
between MSHA officials and various energy companies. (Id.,
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Attachs. Referenced in ¶ 3, Kennedy Letter at 3-7.) Moreover,
most requests by the Senate Committee contained date
restrictions. The House Committee’s request was also limited in
scope. Chairman George Miller limited the request to
documentation of communications between and minutes of any
meetings involving DOL and representatives of various energy
companies, records in a specific database related to the mine,
the employment record of the MSHA District Manager for the
district in which the mine was located, and documentation of any
complaints made to DOL about the mine. (Id., Attachs. Referenced
in ¶ 3, Miller Letter at 1-2.) Additionally, the requests
contained date restrictions; MSHA did not have to search for
documents created before 2001. Lastly, the Congressional
subpoena was limited in scope and sought information only from
2001 to 2007. (Id., Attachs. Referenced in ¶ 3, Subpoena
Schedule ¶¶ 1-2.)
The scope and date limitations contained in the OIG, Senate,
and House Committee requests and the subpoena prevent the search
in response to those requests from necessarily satisfying the
FOIA request. Because the record does not show that MSHA
readjusted its original search parameters to satisfy the broader
FOIA request (see Def.’s Non-email Mem., Silvey Decl.), which
contained no subject matter restrictions –– other than that the
documents relate to the mine –– and no date restrictions, MSHA’s
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search was not reasonably calculated to produce all documents
responsive to UEI’s request. Thus, MSHA’s search was not
adequate. See Wilderness Soc’y, 2003 WL 255971, at *5
(concluding that agency’s search was inadequate because
“responsive documents [possibly maintained] in the locations
searched may not have been produced as a result of the [agency’s]
narrow interpretation of plaintiffs’ request”); see also Campbell
v. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (noting
that “the court evaluates the reasonableness of an agency’s
search based on what the agency knew at its conclusion rather
than what the agency speculated at its inception”).5
II. ADEQUACY OF SEARCH FOR EMAILS
UEI argues that MSHA’s search for emails was inadequate
because MSHA failed to use the term “Genwal” as one of its search
terms, narrowly construed the email request during the search
instructions to its officials, and failed to search the files of
Gary Jensen, the MSHA inspector who was killed during the rescue
mission.6 (Pl.’s Reply at 6.) In response, MSHA argues that
5
MSHA’s argument that it reviewed the entire accident
investigation file and released relevant documents, responsive
and non-responsive to UEI’s request (Def.’s Non-email Mem. at 4),
is not sufficient to demonstrate the search’s adequacy because
that file concerned the accident specifically and was unlikely to
contain general information about the mine, as UEI requested.
6
This latter argument is without merit because UEI agreed
to limit the search of emails to three MSHA officials after MSHA
discovered that there were 300,000 responsive emails to its
original request. (Def.’s Email Mem. at 4-5; Pl.’s Mot., Klise
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the parties negotiated the scope of the search, and that “the e-
mail search in response to the Congressional subpoenas ‘was
extremely broad and sought all e-mails, without date
restriction[.]’” (Def.’s Opp’n & Reply at 7-8 (quoting 2d Suppl.
Silvey Decl. ¶¶ 4-5).)
In Canning v. Dep’t of Justice, 919 F. Supp. 451, 460
(D.D.C. 1994), the plaintiff submitted a FOIA request to the
Federal Bureau of Investigation seeking information on Charles
Zimmerman, who was also known as Charles Cunningham. The FBI
initially searched only the Zimmerman name and did not locate any
responsive documents. Id. The plaintiff later produced evidence
that the FBI knew at the time of the search that the individual
was known by two different names, and the court held that the
agency’s search was inadequate because it did not include both
Decl. ¶ 4.) That MSHA did not search an email account the
parties agreed would not be searched cannot render the search
inadequate. See Coalition on Political Assassinations v. DOD, 12
F. App’x 13, 13-14 (D.C. Cir. 2001) (finding that agency
conducted reasonable search in response to plaintiff’s “limited
request” using “specific code words” provided by the requester).
UEI further asserts that the search was inadequate because,
among other reasons, emails released did not predate the dates of
the accidents. (Pl.’s Mot. at 17.) However, MSHA recognized
that this limitation prevented its search from being responsive
to UEI’s request, and it later provided the email results that
predated the accident. (Def.’s Opp’n & Reply, 2d Silvey Suppl.
Decl. ¶ 6.) MSHA recognized its own error and corrected the
mistake, and the initial omission does not render the search
inadequate, as there is no evidence that the omission was a
result of the agency acting in bad faith. See Miller v. Dep’t of
State, 779 F.2d 1378, 1383 (8th Cir. 1985) (noting that “[d]elay
alone is significant only to the extent that evidence shows that
the delay resulted from bad-faith”).
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names. Id. at 461. Here, MSHA’s search did not include the term
“Genwal,” the name of the mine operator and a name by which
industry officials sometimes referred to the mine. (Pl.’s Reply
at 6 (citing Crandall Canyon Mine Single Source Page,
http://www.msha.gov/Genwal/CrandallCanyon.asp)) (last visited
July 22, 2010) (linking to Report of Investigation, Fatal
Underground Coal Burst Accidents August 6 and 16, 2007 at 128
(“At GENWAL [Crandall Canyon Mine] good success has been
achieved . . .), available at
http://www.msha.gov/Fatals/2007/CrandallCanyon/FTL07CrandallCanyo
nNoAppendix.pdf.) As in Canning, omitting from the search an
alternative name by which the subject of the search is known
renders the search inadequate, even if the search terms
“Crandall,” “Murray,” and “Agapito” were likely to reveal many
emails responsive to UEI’s request.
That MSHA instructed its employees to search the files of
MSHA employees who were involved directly or indirectly with the
“Crandall Canyon event” (Def.’s Email Mem., Silvey Suppl. Decl.
¶ 7) and not the Crandall Canyon mine is a further infirmity in
the email search. Although the instructions included the phrase
“without date limitation,” this search narrowly construed UEI’s
request for all emails which relate in any way to the Crandall
Canyon Mine. Even though there was no date limitation to the
employees’ search, the search was not sufficiently reasonably
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designed to discover documents that related generally to the mine
but did not explicitly involve the accidents. Thus, MSHA will be
denied summary judgment due to the inadequacy of its search. See
Nation Magazine, 71 F.3d at 891-92 (reversing district court’s
grant of summary judgment in light of agency affidavit that was
too conclusory to determine that the agency had construed
liberally the plaintiff’s FOIA request).
CONCLUSION AND ORDER
MSHA’s search for responsive non-email documents was not
adequate because it based its search for non-email documents on
the OIG and Congressional requests, which were narrower than
UEI’s FOIA request. Further, MSHA’s search for responsive emails
omitted the critical term Genwal and failed to construe liberally
UEI’s request. Accordingly, it is hereby
ORDERED that the defendant’s motions [18, 23] for partial
summary judgment, and the plaintiff’s motion [27] for summary
judgment be, and hereby are, DENIED without prejudice to refiling
after MSHA conducts an adequate search. It is further
ORDERED that the parties file by August 23, 2010 a joint
status report and proposed order proposing a schedule by which
the search will be completed.
SIGNED this 23rd day of July, 2010.
_________/s/________________
RICHARD W. ROBERTS
United States District Judge