UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) LAINE ADAIR, ) ) Plaintiff, ) ) v. ) Civ. Action No. 08-1573 (EGS) ) MINE SAFETY AND HEALTH ) ADMINISTRATION, ) ) Defendant. ) ) ______________________________)
MEMORANDUM OPINION
Plaintiff Laine Adair brings this action against defendant
Mine Safety and Health Administration (“MSHA”), under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552a, seeking to compel
the MSHA to comply with his FOIA request to produce a transcript
of his interview with MSHA investigators. Currently pending
before the Court is defendant’s motion for summary judgment.
After considering the motion, the response and reply thereto, the
applicable law, and the entire record, this Court GRANTS
defendant’s motion for summary judgment.
I. BACKGROUND
On August 6, 2007, a catastrophic collapse occurred at the
Crandall Canyon Mine in Price, Utah (the “Crandall Canyon Mine
accident” or “the accident”). Compl. ¶ 2. Six coal miners were
entombed in the mine and three others were killed during the rescue efforts. Compl. ¶ 2.1 In September 2007, the MSHA,
pursuant to its statutory authority under the Federal Mine Safety
and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 801 et
seq.,2 appointed a team of MSHA employees to investigate the
accident. See Compl. ¶ 3. The principal purpose of the
investigation was to determine the cause or causes of the mine
disasters, “in an effort to prevent similar accidents from
occurring in the future.” Compl. ¶ 13. The investigation, which
was led by MSHA employee Richard Gates, sought interviews with
mine personnel, including plaintiff, who was General Manager of
UtahAmerican Energy, Inc. and Genwal Resources, Inc., the
companies that ran the Crandall Canyon Mine. Compl. ¶ 12.
As part of the MSHA’s investigation, Gates asked plaintiff
to submit to a sworn interview regarding the accident. Compl. ¶
13; see generally Pl.’s Opp’n Br., Ex. 1, Decl. of Gregory L. Poe
(“Poe Decl.”) (describing the negotiations between plaintiff’s
counsel and the MSHA regarding the terms of plaintiff’s
interview). Gates indicated that the interview would be under
oath and would be transcribed by a court reporter. Compl. ¶ 13.
He also agreed that plaintiff could request a copy of the
interview transcript, and stated that it would be “provided at a
1 For additional details regarding the mining accident, see Paul Foy, Utah Mine Cave-In Traps Six; Miners' Condition Unknown as Initial Rescue Attempt Fails, The Wash. Post, Aug. 7, 2007, at A7. 2 The MSHA is authorized to investigate mine accidents and impose both civil and criminal penalties for violations of health and safety standards pursuant to the Mine Act.
2 later time.” Compl. ¶ 13. “Induced by MSHA’s promise that he
would receive a copy of the Transcript,” plaintiff was
interviewed on December 13, 2007. Compl. ¶ 14.
By letter dated February 4, 2008, plaintiff’s counsel
requested a copy of the December 13, 2007 interview transcript
(the “Transcript”). The MSHA denied this request several days
later, stating that “Mr. Adair’s statement will be provided at or
around the time that the accident investigation report will be
issued.” Compl. ¶ 16. Plaintiff requested further explanation
of the denial, but received no response from the MSHA. Compl. ¶
16.
On or about May 8, 2008, U.S. Representative George Miller,
Chairman of the Committee on Education and Labor in the U.S.
House of Representatives, referred plaintiff to the U.S.
Department of Justice for a criminal investigation regarding
whether plaintiff “willfully made materially false
representations on his own accord or as part of a conspiracy to
do the same” to the MSHA. Def.’s Statement of Material Facts,
Ex. 1, Decl. of Brett L. Tolman (“Tolman Decl.”) ¶ 3; see also
Compl. ¶ 3. Representative Miller’s criminal referral was
forwarded to the U.S. Attorney’s Office for the District of Utah
(“Utah USAO”) for investigation.
On July 24, 2008, two separate reports were released
regarding the Crandall Canyon Mine accident. The first report, a
product of the MSHA investigation under Gates (the “Gates
Report”), discussed the August 2007 mining accident. Compl. ¶
3 19. The Gates Report publicly announced that the MSHA was
imposing a penalty of $1.34 million on Genwal Resources for
violations that it found directly contributed to the deaths of
the six miners entombed in the Crandall Canyon Mine. Def.’s Mot.
Summ. J., Ex. 1, Decl. of Kevin G. Stricklin (“Stricklin Decl.”)
¶ 10.
The second report (the “Teaster Report”) was released by the
Department of Labor (“DOL”) and prepared by a team of DOL
employees led by Earnest Teaster, Jr. and Joseph Pavlovich
(“Teaster and Pavlovich”), two former MSHA managers. Compl. ¶
20. Teaster and Pavlovich were appointed as temporary DOL
employees to investigate the MSHA’s handling of the Crandall
Canyon Mine accident. See generally Def.’s Reply Br., Ex. 1,
Decl. of Andrea Burckman (“Burckman Decl.”) ¶ 2. The Teaster
Report, which was publicly available on the internet, contained a
one-sentence quote from the Transcript. Compl. ¶ 20.
Following the release of the Gates’ Report, on July 25,
2008, plaintiff renewed his request for a copy of the Transcript.
Compl. ¶ 21. The MSHA responded on August 1, 2008, stating that
the July 25 letter was being treated as a FOIA request and had
been forwarded to the MSHA’s FOIA officer. Compl. ¶ 22.
On September 8, 2008, the MSHA issued a press release
stating that it had made a criminal referral of certain issues
relating to the Crandall Canyon Mine accident to the Utah USAO.
Compl. ¶ 21. Plaintiff’s counsel then asked the Utah USAO to
produce the Transcript. Compl. ¶ 25. The Utah USAO denied the
4 request on the grounds that it needed to “protect the integrity”
of its investigation arising from the referrals of Representative
Miller and the MSHA. Compl. ¶ 25.
Plaintiff filed a complaint in this Court on September 12,
2008, seeking (i) a declaratory judgment that the MSHA violated
the FOIA and that plaintiff is entitled to receive the
Transcript, and (ii) immediate production of the Transcript. The
MSHA filed a motion for summary judgment on November 17, 2008,
arguing that FOIA Exemption 7(A) applies and that plaintiff’s
complaint should be dismissed in its entirety as a matter of law.
Defendant’s motion is ripe for decision.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). A material fact is one that is capable of affecting
the outcome of the litigation. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986). A genuine issue is one where the “evidence
is such that a reasonable jury could return a verdict for the
non-moving party.” Id. at 252. A court considering a motion for
summary judgment must draw all “justifiable inferences” from the
evidence in favor of the nonmovant. Id. at 255. To survive a
motion for summary judgment, however, the requester “must do more
5 than simply show that there is some metaphysical doubt as to the
material facts”; instead, the nonmoving party must come forward
with “‘specific facts showing that there is a genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 56(e)).
III. DISCUSSION
A. The FOIA and Exemption 7(A)
The FOIA requires that federal agencies release all
documents requested by members of the public unless the
information contained within such documents falls within one of
nine exemptions. 5 U.S.C. § 552(a),(b). These statutory
exemptions must be narrowly construed in favor of disclosure.
Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). While an
agency may deny a FOIA request when the information sought is
exempt from disclosure under the FOIA, 5 U.S.C. § 552(d), the
government bears the burden of justifying the withholding. U.S.
Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Coastal States
Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980). In
carrying its burden, an agency may rely on affidavits or
declarations “when the affidavits or declarations describe ‘the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.’” Kenny v. U.S. Dep’t of Justice,
6 603 F. Supp. 2d 184, 187 (D.D.C. 2009) (quoting Military Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Summary
judgment is therefore appropriate when, viewing the facts in the
light most favorable to the requestor, there is no genuine issue
of material fact with regard to the agency’s compliance with the
FOIA. See Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994).
The MSHA argues that it properly withheld plaintiff’s
transcript under Exemption 7(A) of the FOIA and is entitled to
judgment as a matter of law. Under Exemption 7(A), agencies may
withhold “records or information compiled for law enforcement
purposes . . . to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C. §
552(b)(7)(A). “In enacting this exemption, ‘Congress recognized
that law enforcement agencies had legitimate needs to keep
certain records confidential, lest the agencies be hindered in
their investigations.’” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t
of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (quoting NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)). “The
principal purpose of Exemption 7(A) is to prevent disclosures
which might prematurely reveal the government’s cases in court,
its evidence and strategies, or the nature, scope, direction, and
focus of its investigations, and thereby enable suspects to
establish defenses or fraudulent alibis or to destroy or alter
7 evidence.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762
(D.C. Cir. 2000).
B. Public Disclosure of the Transcript
As a threshold matter, plaintiff argues that summary
judgment is premature, because “discovery is necessary to
determine whether MSHA already has released the transcript, in a
manner that undercuts MSHA’s reliance on Exemption 7(A).” Pl.’s
Opp’n Br. at 2. As discussed above, Exemption 7(A) applies if
the production of the requested document “could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C. §
552(b)(7)(A). Accordingly, plaintiff argues that the risks
associated with the release of the Transcript “may have already
been run” if defendant (i) disclosed the Transcript to the
Teaster Review Team, and (ii) permitted a “crucial portion” of
the Transcript to be quoted in a public report. See Pl.’s Opp’n
Br. at 2, 6-7. Plaintiff therefore seeks “limited discovery” on
these issues.
Because defendant readily admits that (i) the Transcript was
disclosed to the Teaster Review Team, and (ii) a sentence from
the Transcript was quoted in a publicly available report, see
Def.’s Reply Br. at 2 (“MSHA does not dispute that the transcript
was provided to the [Teaster] Review Team or that the review team
quoted in its review of MSHA a single sentence from Mr. Adair’s
eight-hour testimony[.]”), the Court concludes that discovery on
these issues is unnecessary. Having determined that the alleged
8 disclosures did in fact occur, the Court will now address the
substantive issues underlying plaintiff’s discovery request: did
the MSHA negate the applicability of Exemption 7(A) by disclosing
the Transcript to the Teaster Review Team or by permitting a
quotation from the Transcript to be included in a publicly
available report?
1. Disclosure of the Transcript to the Teaster Review Team
Plaintiff first argues that because the MSHA disclosed the
Transcript to the Teaster Review Team, “MSHA cannot now take
refuge in Exemption 7(A) and deny access to Adair.” Pl.’s Opp’n
Br. at 10. The crux of plaintiff’s argument is that the MSHA
waived its right to shield the Transcript from disclosure by
sharing the document with an “independent” review team. See
Pl.’s Opp’n Br. at 11-12 (discussing how the Teaster Review Team
was “independent of MSHA”). The Court must therefore determine
whether the MSHA’s release of the Transcript to the Teaster
Review Team was a public disclosure that waived the government’s
right to withhold the Transcript under Exemption 7(A).
A government agency may not use a FOIA exemption - including
Exemption 7(A) - to shield information that has already been
publicly disclosed. See Students Against Genocide, 257 F.3d 828,
836 (D.C. Cir. 2001) (“This Circuit has held that the government
may not rely on an otherwise valid exemption to justify
withholding information that is already in the ‘public domain.’”
(citations omitted)). This public domain doctrine only applies,
9 however, if the specific information sought was previously
disclosed and “preserved in a permanent public record.” Id. In
other words, the requested information must have been made “truly
public.” See Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999)
(“[W]e must be confident that the information sought is truly
public and that the requester receive no more than what is
publicly available before we find a waiver.”). As discussed
below, because the Teaster Review Team - although “independent”
from the MSHA - was in the same Department as the MSHA (i.e., the
DOL), see Compl. ¶ 8 (“Defendant MSHA is a federal agency within
the United States Department of Labor.”), plaintiff’s public
disclosure argument must fail.
The Teaster Review Team was created by former Secretary of
Labor Elaine L. Chao to conduct an internal review of the MSHA’s
actions with respect to the Crandall Canyon Mine accident. See
Def.’s Reply Br., Ex. 1, Decl. of Andrea Burckman (“Burckman
Decl.”) ¶ 2. The team was comprised entirely of DOL employees.
Specifically, two former MSHA employees, Teaster and Pavlovich,
were appointed to serve as DOL employees pursuant to 5 U.S.C. §
3109, as implemented in 5 C.F.R. § 304.101 et seq.,3 and were
assisted by five permanent DOL employees. See Burckman Decl. ¶¶
2-3 (“Former Secretary Chao selected [Teaster and Pavlovich] to
serve as experts to lead the [Teaster Review Team], assisted by
DOL employees.”); see generally Ex. C to Burckman Decl. 3 5 C.F.R. § 304.101 states that the regulation “appl[ies] to the appointment of experts and consultants as Federal employees under 5 U.S.C. 3109.”
10 (“Statement of Duties” for Pavlovich and Teaster). The purpose
of the Teaster Review Team was to develop recommendations “to
improve MSHA’s enforcement program and the agency’s oversight of
rescue and recovery programs in the aftermath of mine accidents.”
Ex. A to Burckman Decl., Press Release, U.S. Dep’t of Labor,
Labor Secretary Elaine L. Chao Announces Independent Review of
MSHA’s Actions at Utah’s Crandall Canyon Mine (Aug. 30, 2007).
Day-to-day direction of the Teaster Review Team was provided by
the DOL Office of the Solicitor - Division of Mine Safety and
Health, and the team’s findings and conclusions were reported to
the Deputy Secretary of Labor. See Ex. C to Burckman Decl.
Moreover, Teaster and Pavlovich were obligated to maintain the
confidentiality of any information that they received during
their review, and could only disclose information if authorized
by the DOL. See Ex. C to Burckman Decl. ¶¶ 8, 10 (requiring
Teaster and Pavlovich to “[m]aintain the confidentiality of any
information to which they may be given access, and not disclose
any such material or information without the authorization of the
[DOL]” and “[n]ot publish or disclose any report or draft, or
distribute the information related to or developed for this work,
unless authorized by the [DOL]”).
Accordingly, the Court concludes that the MSHA’s disclosure
of the Transcript to the DOL appointed and controlled Teaster
Review Team was an intra-agency sharing of information - not a
public disclosure. See generally Nat’l Inst. of Military Justice
v. United States, 512 F.3d 677, 679-84 (D.C. Cir. 2008) (broadly
11 interpreting “intra-agency” to include government employees and
contract consultants). Because the intra-agency sharing of
information is not a public disclosure for purposes of the FOIA,
see, e.g., Aviation Consumer Action Project v. Washburn, 535 F.2d
101, 108 (D.C. Cir. 1976) (declining to hold that “mere
disclosure of intra-agency memorandum to an advisory committee
makes the memorandum public information”); Kansi v. U.S. Dep’t of
Justice, 11 F. Supp. 2d 42, 45 (D.D.C. 1998) (explaining that
Exemption 7(A) is not waived by disclosure from a federal law
enforcement agency to a state prosecutor); see also Students
Against Genocide, 257 F.3d at 836-37 (holding that photographs
released to Security Council Delegates, but not to the general
public, “plainly do not fall within [the] doctrine [of public
disclosure]”), the Court finds that the MSHA’s disclosure of the
Transcript to the Teaster Review Team does not negate defendant’s
reliance on Exemption 7(A).
2. Disclosure of One Sentence of Plaintiff’s Transcript in a Public Report
Next, Plaintiff argues that the MSHA’s reliance on Exemption
7(A) is undermined because the Teaster Review Team “quoted a
crucial portion of the transcript in its report.” Pl.’s Opp’n
Br. at 2. Specifically, the Teaster Report - which was available
online - included a one sentence quotation that was “taken
directly from the transcript of Adair’s December 13, 2007 MSHA
interview.” Pl.’s Opp’n Br. at 9. Defendant responds that the
public release of one sentence of the Transcript does not defeat
12 the application of Exemption 7(A) to withhold disclosure of
plaintiff’s entire Transcript. Def.’s Reply Br. at 6. This
Court agrees.
Courts have routinely recognized that “[t]he disclosure of a
few pieces of information in no way lessens the government’s
argument that complete disclosure would provide a composite
picture of its investigation and have negative effects on the
investigation.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 930-31;
see also Students Against Genocide, 257 F.3d at 835 (“The fact
that some ‘information resides in the public domain does not
eliminate the possibility that further disclosures can cause harm
to intelligence sources, methods and operations.’” (quoting
Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990))); Military
Audit Project v. Casey, 656 F.2d 724, 752 (D.C. Cir. 1981)
(holding that partial disclosure of sensitive information does
not render implausible the government’s claim that full
disclosure would harm national security). Accordingly, the Court
concludes that the public disclosure of one sentence from an
eight-hour interview does not undermine the MSHA’s broader
concern that disclosure of the entire Transcript would damage the
ongoing criminal investigation of the Utah USAO. See infra
Section III.B. The application of Exemption 7(A) is therefore
not negated by this partial disclosure.
13 C. Exemption 7(A): Interference with Enforcement Proceedings
Having determined that the entire Transcript was not
publicly disclosed, the Court must now determine whether the
government has proven that the requested information falls within
Exemption 7(A). In order to withhold agency documents under
Exemption 7(A), an agency must first establish, as a threshold
test, that the documents requested were “‘compiled for law
enforcement purposes.’” See Ctr. for Nat’l Sec. Studies, 331
F.3d at 925-26 (quoting 5 U.S.C. § 552(b)(7)). “To establish a
law enforcement purpose, [the defendant’s] declarations must
establish (1) a rational nexus between the investigation and one
of the agency’s law enforcement duties; and a (2) connection
between an individual or incident and a possible security risk or
violation of law.” Id. (internal quotation marks omitted).
Defendant has easily satisfied this requirement. The MSHA’s
investigation of the Crandall Canyon Mine accident relates to the
MSHA’s enforcement duties under the Mine Act, see Stricklin Decl.
¶ 2 (explaining that the Mine Act authorizes the Secretary of
Labor, through the MSHA, to investigate mine accidents and to
assess and collect civil and criminal penalties for health and
safety violations), and the purpose of the MSHA’s investigation
was to determine “‘the cause of the ground failure at Crandall
Canyon mine and any violations of safety and health standards.’”
Stricklin Decl. ¶ 4 (quoting the MSHA’s Press Release dated Aug.
30, 2007). As a result of its investigation, the MSHA imposed a
14 $1.34 million penalty on the mine’s operator and made a formal
referral for a criminal investigation to the Utah USAO.
Stricklin Decl. ¶ 10. Consequently, the Court finds that the
transcript of plaintiff’s interview - which was taken under oath
by the MSHA as part of its investigation of the Crandall Canyon
Mine accident - was compiled for law enforcement purposes. See
generally Stricklin Decl. ¶ 5 (“During the course of its
investigation into the Crandall Canyon accidents, MSHA solicited
voluntary sworn statements of people who had knowledge of the
events and circumstances relating to these accidents, including
Laine Adair . . . .”).
Having satisfied this threshold requirement, defendant must
next establish (1) that a law enforcement proceeding “is pending
or prospective,” and (2) that the release of the requested
information “could reasonably be expected to cause some
articulable harm.” See Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C.
1997) (discussing the “two-step analysis” of Exemption 7(A)).
The Court finds that defendant has satisfied both requirements.
First, with regard to a pending or prospective law
enforcement proceeding, the ongoing criminal investigation by the
Utah USAO satisfies this requirement. See Tolman Decl. ¶ 9
(discussing the Utah USAO’s investigation and explaining that the
office “is currently acting on both criminal referrals from
Chairman Miller and the Department of Labor”). The fact that the
Transcript was compiled during the MSHA’s investigation of the
Crandall Canyon Mine accidents - prior to the Utah USAO’s
15 investigation - does not change the fact that there is an ongoing
investigation that could result in an “enforcement proceeding.”
5 U.S.C. § 552(b)(7)(A); see, e.g., Cudzich v. U.S. Immigration &
Naturalization Serv., 886 F. Supp. 101, 106-07 (D.D.C. 1995)
(concluding that even though the INS had completed its
investigation of the plaintiff, the ongoing investigations of the
plaintiff by other law enforcement agencies satisfied Exemption
7(A)).
Second, the Tolman declaration establishes that the
“[d]isclosure of Mr. Adair’s statement at this time could
reasonably be expected to harm the ongoing criminal
investigation.” Tolman Decl. ¶ 10. As Tolman explains:
One of the central issues in our investigation is what Mr. Adair and others told MSHA. If the statement is released, either in whole or in part, Mr. Adair and others will know exactly what Mr. Adair said under oath when interviewed by MSHA in December 2007. This creates the possibility for others to compare their potential testimony with Mr. Adair’s and would allow them to collaborate to obtain a consistency of detail and memory that will not be available if Mr. Adair’s statement is not released. In the same vein, disclosure of the statement also would enable a witness to adopt Mr. Adair’s version of the facts and preclude a more thorough investigation of the witness’s recollection. . . . To protect the integrity of this office’s ongoing criminal investigation, it is important to ensure that this office remains able to obtain independent recollections of witnesses regarding the events surrounding the accident.
Tolman Decl. ¶ 10. These concerns satisfy the “interference”
requirement of Exemption 7(A). See, e.g., Boyd v. Crim. Div. of
the U.S. Dep’t of Justice, 475 F.3d 381, 386 (D.C. Cir. 2007)
16 (“The government meets its burden by demonstrating that release
of the requested information would reveal ‘the size, scope and
direction of [the] investigation’ and thereby ‘allow for the
destruction or alteration of relevant evidence, and the
fabrication of fraudulent alibis.’” (quoting Alyeska Pipeline
Serv. Co. V. U.S. Envtl. Prot. Agency, 856 F.2d 309, 312 (D.C.
Cir. 1988)); Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996)
(recognizing the applicability of Exemption 7(A) because
disclosure would make documents relevant to the investigation
“public and available to everyone, including others under
Commission scrutiny”); see generally Cudzich, 886 F. Supp. at 106
n.1 (“Interference under the terms of the statute encompasses a
wide range of concerns. Grounds which have been repeatedly
acknowledged by the courts include fears of disclosure of: (1)
evidence, (2) witnesses, (3) prospective testimony, (4) the
reliance placed by the government upon the evidence, (5) the
transactions being investigated, (6) the direction of the
investigation, (7) government strategy, (8) confidential
informants, (9) the scope and limits of the government’s
investigation, (10) prospective new defendants, (11) materials
protected by the Jencks Act, (12) attorney work product, (13) the
methods of surveillance, [and] (14) subjects of surveillance.”
(internal quotation marks omitted)). Because defendant has
articulated a harm that can reasonably be expected to interfere
with an ongoing law enforcement investigation, Exemption 7(A) has
properly been invoked to withhold plaintiff’s Transcript from
17 disclosure. The Court concludes that the government has proven
that the requested information falls within Exemption 7(A).
D. Equitable Estoppel
Finally, plaintiff argues that “[e]ven if the Court
determines . . . that Exemption 7(A) permits MSHA to withhold the
transcript, MSHA should be required to produce the transcript
under the doctrine of equitable estoppel.” Pl.’s Opp’n at 13.
It is plaintiff’s position that the MSHA should be prevented from
withholding the Transcript because “MSHA representatives made
definite representations to Adair before he agreed to be
interviewed that the agency would provide him with a copy of the
transcript.” Pl.’s Opp’n at 13-14. Plaintiff further asserts
that after the MSHA secured Adair’s testimony, the agency refused
to permit Adair to review the requested transcript and did not
provide an explanation for its denial. Pl.’s Opp’n at 15.
Defendant argues that plaintiff’s claim for equitable estoppel
should fail because the doctrine is not applicable to the facts
of this case, and that even if it is, plaintiff has failed to
establish the necessity of the requested relief. Def.’s Reply
Br. at 7-10. This Court assumes without deciding that a claim
for equitable estoppel is cognizable in this context, and agrees
with defendant that plaintiff has failed to establish the
essential elements of an equitable estoppel claim. See Keating
v. FERC, 569 F.3d 427 (D.C. Cir. 2009) (assuming without deciding
that equitable estoppel may be applied against the federal
18 government (citing Office of Personnel Mgmt. v. Richmond, 496
U.S. 414, 423 (1990))).
Traditionally, “[t]he doctrine of equitable estoppel
requires a showing that: (1) there was a ‘definite’
representation to the party claiming estoppel; (2) the party
relied on its adversary’s conduct to his detriment; and (3) the
reliance on the representation was ‘reasonable.’” Hertzberg v.
Veneman, 273 F. Supp. 2d 67, 83 (D.D.C. 2003) (quoting Graham v.
SEC, 222 F.3d 994, 1007 (D.C. Cir. 2000)). Application of this
doctrine to the government, assuming it is permissible, must be
“rigid and sparing” and may only be used in “compelling”
circumstances. ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104,
1111 (D.C. Cir. 1988); see also Waukesha State Bank v. Nat’l
Credit Union Admin. Bd., 968 F.2d 71, 74 (D.C. Cir. 1992) (noting
“the rather questionable bounds of the applicability of the
equitable estoppel doctrine to the government”). Litigants in
this Circuit who seek to assert equitable estoppel claims against
the government must therefore also establish “a showing of
injustice” and “lack of undue damage to the public interest.”
ATC Petroleum, 860 F.2d at 1111.
The Court need not analyze each prong of this test because
the Court concludes that plaintiff has failed to demonstrate that
“enforcement of the promise would be in the public interest and
would prevent injustice.” Nat’l Juvenile Law Center, Inc. v.
Regnery, 738 F.2d 455, 459 (D.C. Cir. 1984). The public has a
19 strong interest in preserving the integrity of a pending criminal
investigation involving an accident that resulted in nine
fatalities. Defendant has submitted sworn testimony that
“releasing Mr. Adair’s statement, or any portion of that
statement, could reasonably be expected to harm the investigation
of his and others’ activities related to the August 6 Collapse.”
Tolman Decl. ¶ 11; see also Tolman Decl. ¶ 10. In view of the
potential harm to the executive branch’s ongoing criminal
investigation if the Transcript was disclosed, the public
interest favors the continued withholding of the Transcript at
this time.
While the Court is sympathetic to plaintiff’s request to
review his sworn testimony, see Pl.’s Opp’n Br. at 15 (“[D]espite
Adair’s efforts, he was never provided an opportunity, afforded
to witnesses in civil litigation and even grand jury witnesses,
to make sure that the transcript accurately reflected what he
actually said.”), no “egregious injustice” will result if this
review is delayed. Int’l Org. of Masters, Mates & Pilots v.
Brown, 698 F.2d 536, 552 (D.C. Cir. 1983); see also GAO v. GAO
Pers. Appeals Bd., 698 F.2d 516, 526 (D.C. Cir. 1983) (estoppel
requires a government agent to “behave in ways that have or will
cause an egregiously unfair result”). This is particularly true
given that the “MSHA anticipates that a copy of Mr. Adair’s
statement will be made available to him at the conclusion of the
government’s ongoing criminal investigation and at a time when,
in the judgement of the U.S. Attorney’s Office for the District
20 of Utah, doing so would no longer be expected to compromise that
investigation.” Stricklin Decl. ¶ 13. For these reasons, the
Court concludes that plaintiff’s case for equitable estoppel does
not meet the “compelling” standard required by the case law and
must therefore be rejected. ATC Petroleum, 860 F.2d at 1111.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS
defendant’s motion for summary judgment. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 23, 2009