This is a trade secret under FOIA?

I’ve often suspected that some federal agencies apply very broad definitions to the exemptions provided under the Freedom of Information Act (FOIA).  Now, thanks to one diligent journalist I can judge for myself whether the Mine Safety and Health Administration (MSHA) is an offender. 

Ellen Smith of Mine Safety and Health News requested records from MSHA and the Solicitor’s Office (SOL) about its legal determination that the haulage road on which coal-truck drive Chad Cook, 25, died, was under MSHA jurisdication.  MSHA had made a gross error in 2005-2006 when it concluded that the road was private property.  (In November 2007, the senior officials reversed themselves, but it was too late to get justice for Chad Cook.)   Smith made her FOIA request for the legal determination in August 2008, and MSHA responded 7 months later.   They provided a four-page memo written by SOL, but redacted certain portions under FOIA Exemption 4.   This exemption is allowed to protect

“trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

When MSHA sent the redacted version to the journalist in March, the agency’s cover letter said

“some of the information is potentially protected under FOIA exemption 4″

and that they were providing her with this redacted version while they proceeded with the “submitter notification process.”   This is step that the Labor Department follows before releasing information that an individual, employer or other entity has previously provided to the Department AND had designated it “confidential business information” (CBI) or “protected from disclosure under Exemption 4.”   (See DOL’s rules at 29 CFR 70.26 ) 

When I read MSHA’s March 2009 response to Ellen Smith and saw the redacted memo, I was very curious to see what the company could possibly have considered CBI or a trade secret.  This was a haulage road, for goodness sakes. 

Here’s the unredacted version, just now released by MSHA.  See for yourself; the sentences appearing in yellow highlight are those that had been redacted under FOIA Exemption 4.  None of it seems worthy to me of a “trade secret” or “commerical or financial” designation. Items like:

“About 1500 truck trips per day take place over the road.”

And this:

“Metikki asserts that the road is owned by Western Pocohontas Properties and RDC Projects.  Metikki has an easement to use the haulage road and Mettiki has the right to upgrade, repair and maintain the road as well as other obligations and authority.”

And this:

“Although the majority of the traffic on the road is coal haulage traffic, there has been some additional use for logging, allowed under the easement, and other occasional users such as hunters.  According to Mettiki, one of these users hauled over 1 million board feet of logs and 14,000 cords of pulpwood from 2005 to 2006.”

Are worthy of “commercial or financial interest” designation???

When I read the Dept of Justice’s interpretation of the case law on FOIA Exemption 4, it hardly clears things up for me.   One judicial decision says “records are commercial so long as the submitter has a ‘commercial interest’ in them.”   That’s pretty darn broad.

The full release of this memo not only makes me wonder about the application of FOIA Exemption 4 and its implications for worker health and safety, but also raises questions closer to home about Chad Cook’s death.   Specifically, questions about MSHA’s determination way back in November 2005 that the roadway on which Chad Cook was killed was not mine property.   

It also makes me wonder whether the company’s secrecy, demonstrated in their claims of CBI, played a role in MSHA’s original grave error in failing to investigate Chad Cook’s fatality.  Or, was MSHA making its own decisions about the company’s commercial or financial interest, deciding not to disclose the items marked in yellow highlight until they checked first with Mettiki?  Could it be that Mettiki hadn’t actually “designated, by appropriate markings” this information as protected from disclosure under FOIA exemption 4, but MSHA felt compelled to check with the mine operator before releasing it.  Is that why MSHA’s March 2009 response to Ellen Smith said:

“…a determination was made that some information is potentially protected under FOIA Exemption 4.” [emphasis added] 

So that was written in March 2009, and Labor Secretary Solis had only been on the job for a month.  It’s now late June.  Perhaps Attorney General Holder’s memo on FOIA has made its way to MSHA and the release of this memo last week signals a new wave of transparency.   I’m not willing to hold my breath on it, but hope it is so.

Comments

  1. #1 shulquist
    June 24, 2009

    If you pointed out that MSHA made a mistake in their investigation, I am missing what else there is to get under FOIA.

  2. #2 Donald Coit Smith
    July 23, 2009

    23 Jul 09

    The FOIA allows for the full investigative report information on the “incident” which includes field inspector notes. These notes can contain critical points on items that may point to some type of criminal issue for the employer. Exemption 4 eliminates from view a LOT of information which the employer submits to the Agency for redaction. Although under current legislation even negligent homicide must be “willful” and proving that is virtually impossible… one would hope an employer would not intentionally create a hazard… yet we find time and again employers ignoring established OSHA standards and create death scenes all over America. Is that not “willful”? I believe those acts are very criminal in nature and should require the severest of punishments to include long jail terms for those responsible, not just a potential 6 months behind bars.

    DCS