by Bob Snashall, retired Labor Dept employee (Op-Ed Charleston Gazette, Nov 7, 2008)
George W. Bush & Company did one thing well – it bagged a lot of public information and taxidermied it into secrets. The shroud of secrecy even spread over mine safety. Mine safety? The law envisions everybody chipping in to protect miners from the perils of fire, water, gas and roof falls. So it helps the public to know what is going on. My federal legal career spanning 30 years embraced both mine safety and freedom of information.
In a democracy – you know, in a government of, by and for the people – people should know what the government is up to and what they’re getting for their money. The public generally has a right to federal agency records under the Freedom of Information Act. Presidents, Republican and Democrat, pretty much went along with it. Until W.
The Freedom of Information Act bugs Vice President Dick Cheney. To steroid W’s power, Cheney aimed to put government information in a lockbox. At the U.S. Mine Safety and Health Administration (MSHA), disclosure had been alive and kicking for decades. That had to stop. What detonated W’s Man at MSHA was that the media ran a story criticizing the agency and, egads, based the story on information obtained under the Freedom of Information Act (FOIA)! Challenging the official line being spun was a big no-no. At MSHA the game was afoot.
The Bushies went for a trophy kill – mine accident files. First they hid factual information produced under contract. Next they nixed the release of all non-confidential witness statements. Finally they shut the lid on the entire file. Mission accomplished!
Their sites turned to other quarry – MSHA inspector notes. These notes are factual, written with company and miner representatives present, describe dangerous developments and show the basis for enforcement actions. Companies and miners rely on the notes to determine what measures should be taken to improve safety and which federal actions should be challenged. Tough! The notes were thrown into the black pit.
“What about the law?” you may ask. FOIA requires the release of open case enforcement records unless the release would interfere with the case. There is a “harm” standard that must be met before the government can withhold information. No matter. W’s MSHA guys said that just the act of answering an information request was an interference. So complying with the law was the reason why they shouldn’t have to comply with the law. Cute.
There was a real coalition on this. FOIA does not win popularity contests at the Department of Labor, MSHA’s Big Brother. This Bureaucratic Park is the habitat of turfiraptors with law degrees. These creatures of Labor Legal leapt at giving cover to ditch the harm standard. “Disclose nothing on open cases,” they chirped to the delighted Bushies at MSHA. “That’s how the rest of the Department does it.”
Until the Sago Mine disaster near Buckhannon in January 2006. There it was announced that miners hit by an explosion were alive and coming out, which was about 180 degrees from the facts. A person might think that this is what happens when you deal with inconvenient truth up the backside. With “blood on the coal” Republican politicians in Congress had the Labor Secretary call off her hounds.
The open season on information disclosure was to be over. But the wounds ooze. An anti-disclosure mindset lingers. MSHA jerks requesters around with paper-hanging formalities for routine disclosures. It dithers in rounds of lawyer reviews with the Labor Department. It balks at disclosing victim data that can help prevent accidents.
Once upon a time, MSHA relied on its better angels. It trained its people to practice full and often informal disclosure to the public. Well, that was good enough for The Gipper. But not for W and Dick. It is up to the next president to follow the law, let the sunshine in and not bury safety problems in a hole.
Bob Snashall worked for 30 years as a career federal employee, most of that time as an attorney in the Mine Safety and Health Divison of the Department of Labor’s Solicitor’s Office. He retired in December 2007.