November 6, 2008 The Pump Handle 1Comment

In 1966 when the original Freedom of Information Act (FOIA) became law, President Lyndon B. Johnson said he “signed this measure with a deep sense of pride that the U.S. is an open society in which the people’s right to know is cherished and guarded.”  The law’s purpose is “to establish a general philosophy of full agency disclosure,” and records will only be withheld unless they fall into narrow categories, such as national security (i.e., FOIA exemptions).

In my own personal experience with the G.W. Bush Administration, principles of openness and the people’s right-to-know have been trampled, with agency records locked up as if in triple-strength chains.  If Mr. Obama wants to restore the public’s trust in government, it would be wise for him to instruct senior officials on Day 1 that his Administration is going back to first principles of FOIA—full agency disclosure, sooner rather than later, and when in doubt, disclose.

Here’s just one example from Secretary Elaine Chao’s Labor Deparment, involving a simple request made of the Mine Safety and Health Administration (MSHA).

In February 2008, a small group of workers’ rights advocates sent a petition to MSHA asking for regulatory changes to improve the training that miners receive on their statutory rights (e.g., protection from discrimination for raising safety concerns).   Just a few weeks later, MSHA’s Asst. Secretary Richard Stickler responded to their letter saying “new regulations are not necessary” (a response that was not really a surprise to the petitioners).  I critiqued Mr. Stickler’s dismal rationale for rejecting the petition (here), but at the time, I skipped mentioning the little crumb he tossed at petitioners’ feet.  Mr. Stickler wrote:

“It is important to note that MSHA has recently undertaken an initiative to monitor the effectiveness of training programs and is emphasizing that statutory rights training be included in new miner training.”

Oh really?   How can we find out more about this “initiative to monitor the effectiveness of training programs?” was the question asked by one of the petitioners, Nathan Fetty of the Appalachian Center for the Economy & the Environment.  (As devoted worker rights advocates, we’ll make the most of the crumbs tossed casually at us.)

Nathan Fetty wrote to Mr. Stickler on April 30, asking for details about this initiative, including: 

  • records describing the scope and duration of the initiative
  • records relating to the MSHA staff who developed and/or involved in the initiative
  • records explaining how MSHA will be determining “effectiveness”

A straightforward inquiry, no?   After all, the Asst. Secretary mentioned this special initiative in his letter rejecting the petition.  You’d think he’d be eager to provide a few more details.

Well….   No.  Mr. Fetty has not received any details about the “initiative to monitor the effectiveness of training programs.”  (He did receive the standard response saying that his request had been assigned a FOIA tracking number.)  

Surely, after six months, someone within MSHA would be able to cough up a little bit of information about this alleged program.  How long does it take for someone to pull a memo or other document that describes the “scope and duration of the initiative” or explains how many training programs have been evaluated?   If someone is acutally working on this project, they should have something in writing explaining how the program works, right?  

Geez, MSHA! What the heck is going on in that place??  

Here’s what’s going on.  Last week, Nathan Fetty received a phone call from someone at MSHA apologizing for the delay in providing the information he requested.  This person reported that the response prepared by MSHA is chained held up in the chain-of-command in the Labor Department.  Huh?  Why in the world is somebody in the Labor Department reviewing a simple request for information on an MSHA program?  Does the Labor Department review every agency FOIA before it is released?  Whose brilliant idea is this one?

Can’t we get back to the purpose of FOIA—allowing for the prompt disclosure of government records, not sequestration of them?

So, as I’m reviewing Nathan Fetty’s April 2008 FOIA request, and shaking my head wondering why such a simple request from MSHA could take six months, I receive this tidbit of information from Ellen Smith, managing editor of Mine Safety and Health News.

Dear Subscribers,

For whatever reason, MSHA may have decided  to keep its annual FOIA report from the public.  I have asked to verify this  information, but if true, it certainly goes against FOIA rules and law.  I will keep you informed via email about this development.   …It is the position of Mine Safety and Health News  that all government information should be in the public domain, unless it  affects national security or is a trade secret. We also believe this standard  should apply to the deliberative process, because we believe all citizens  have a right to know how decisions are made and what deliberations came  into play in making those decisions.

Ellen Smith sent the following letter to Amy Louviere, who now heads MSHA’s Office of Information and Public Affairs. 

Dear  Amy,
It has been brought to  my attention, or claimed, that MSHA has decided that its Freedom of  Information Act Annual Reports are secret and will be kept in their entirety from the public.  I need to confirm if  this is true.  MSHA is obliged to  produce an annual report containing the statistics on its FOIA program.  This report is given to the Department of Labor.  Since 1996, the agency has  produced 11 annual reports totaling 40 pages.  It is my understanding that  MSHA is claiming this material is deliberative and pre-decisional and its release would interfere with agency decision-making.
This information, the  content and structure of the data in these MHSA FOIA reports is specified by the  Justice and the Labor Departments. These reports are nearly entirely factual in nature and do not consist of opinions. The data from these reports are  subsumed each year into the Labor Dept. FOIA Annual Report without any  significant change.  While some of this data appears in the Labor Dept. FOIA  report, other data is included in the calculations but not broken out separately for MSHA.

These reports are anything but deliberative,  are not pre-decisional, and are almost entirely factual.  As a result, the  decision to hide these reports seems mystifying, reflexive and generally  unsupportable.  The puzzling decision to aggressively withhold the FOIA  Annual Reports reflect actions that do not appear to comport with rational,  reasonable policymaking behavior.  Agencies of all types throughout the federal government typically not only make these reports available but post them on their websites.

Holy smokes!  DOL is not only snubbing the public’s right to know about programs paid for with our tax dollars, but may also be attempting to keep secret its own annual report on FOIA. 

My, my.  It’s going to be a long 11 more weeks.


Celeste Monforton, MPH, DrPH is with the Project on Scientific Knowledge and Public Policy (SKAPP) at the George Washington University.  She is a volunteer with United Support and Memorial on Workplace Fatalities (USMWF), which was one of the groups that petitioned MSHA for enhanced training regulations to protect miners’ rights.

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