Regular readers know that we’ve been trying since last June to get the U.S. Mine Safety and Health Administration to release records or otherwise discuss what exactly MSHA did after two significant “methane outbursts” at Massey Energy’s Upper Big Branch Mine in 2003 and 2004.
Federal and state investigators have been looking at those incidents as part of their probe of the April 5, 2010, explosion that killed 29 miners at Upper Big Branch.
Well, we got our answer yesterday. MSHA sent us a two-page letter, in which the agency mostly denied our FOIA request — refusing to release roughly two-thirds of the records concerning those incidents.
MSHA did provide 149 pages of records mostly consisting of citations — and 13 pages consisting of the reports on the 2003 and 2004 incidents that we had already obtained from other sources — but no records that explain what, if any, follow up was done by either Massey or MSHA to ensure no repeats of these incidents.
But MSHA withheld 272 pages of records, citing Exemption 7 of the federal Freedom of Information Act, meant to protect records that, if released, might interfere with ongoing law enforcement proceedings.
Because MSHA won’t release these records, we don’t know, just for example, whether it’s correct — as former Massey CEO Don Blankenship said it was — that MSHA signed off on plans by Massey not to drill “degasification wells” that might help prevent such methane outbursts. We don’t know if MSHA made sure that any other steps it recommended were actually implemented by the company.
There’s a whole lot we don’ t know here about whether MSHA did its job. Whether a methane outburst did or didn’t have anything to do with the mine disaster, these questions go to the heart of whether MSHA was, as Labor Secretary Hilda Solis likes to say, “using all of its tools” to ensure safe operations at Upper Big Branch.
Interestingly, I got a second letter from MSHA yesterday as well … this one was denying my FOIA request for that Report to Congress about the activities of MSHA’s Office of Accountability. MSHA said in this letter:
To our knowledge, the report MSHA submitted to Congress regarding efforts of MSHA’s Office of Accountability has not been made public by the Committee. At this time, these documents are considered Congressional Records not subject to the FOIA. See United We Stand v. IRS, 359 F. 3d 595 (D.C. Cir. 2004). The Congressional committee will determine when it will release the information to the public.
OK … to be clear … because MSHA apparently missed this. The Senate Appropriations Committee released this Report to Congress to me already.
But suppose they hadn’t? Is MSHA correct that this case from 2004 prohibits them from doing so?
Well, you can read the case for yourself here.
I’ll point out two things about it. (Keep in mind that MSHA is subject to the federal Freedom of Information Act, but Congress is not)
First, in the situation in that case, Congress had specifically ordered the IRS not to release a request for information from a congressional committee. As the court’s decision explained:
This case concerns a document the Internal Revenue Service created in response to a request from the Joint Committee on Taxation. Established by statute, see 26 U.S.C. § 8001 (2000), the Joint Committee consists of ten members, five each from the Senate Finance Committee and the House Ways and Means Committee. See id. § 8002(a) (2000). By letter dated March 27, 1997, the chairman, vice-chairman, and ranking members of the Joint Committee directed committee staff “to investigate whether the IRS’s selection of tax-exempt organizations … for audit has been politically motivated, including an analysis of the selection of such tax-exempt organizations for audit for reasons related to their alleged political or lobbying activities.” As part of that investigation, the Joint Committee’s chief of staff sent the IRS a letter dated April 28, 1997, requesting specified categories of documents and information. The letter concluded: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.”
But in this instance, Congress asked for the report on the Office of Accountability as part of a budget bill, and included no such secrecy mandate:
The Committee understands the Office of Accountability was established to provide focus and oversight to ensure that MSHA policies, enforcement procedures, and guidance are being complied with consistently and that the agency is accomplishing its mission-critical activities. The Office conducts field audits, recommends and monitors corrective actions and analyzes mining data. The Committee requests that MSHA prepare and provide a report to the Committee, no later than March 31, 2010, on staffing and budget resources expended or planned for fiscal years 2009 and 2010; findings and recommendations of audits conducted to date; and corrective actions implemented.
Second, it’s interesting to see how the IRS case actually turned out … because, in fact, the court ruled that only the congressional committee’s request could be withheld and the substance of the agency’s response had to be made public:
Under these circumstances, absent “clear” expression of congressional intent to control the entire response, neither the IRS’s own expectations nor its handling of the document can turn the entire agency-created record into a congressional document. Otherwise, documents that agencies create in response to congressional requests could become congressional documents even if Congress expressed no intent to keep them secret, for it can be said of most such materials that they would not have been created but for the congressional request, that the agency relies on them for no other purpose, and that they are kept in separate files, i.e., in the agency’s office of congressional affairs. Such a result would “exempt from FOIA’s purview a broad array of materials otherwise clearly categorizable as agency records, thereby undermining the spirit of broad disclosure that animates the Act.”