Editorial: In Support of Open Government

by Ellen Smith, Mine Safety and Health News

                Perhaps it is no surprise to the mining industry that MSHA was named as one of the top federal agencies in failing to fulfill Freedom of Information Act (FOIA) requests on time, or even offer the information sought by journalists and the public.

                This is according to a recent report released by the Society of Environmental Journalists. (12 MSHN 360; Sept. 19, 2005 ).

                The federal agency has come under fire, along with three other agencies, from The Tennessean of Nashville , Tenn. , which wrote that, “Good times or bad, the public should be able to rely on its government to provide accurate, timely information.”

                The paper notes that FOIA isn’t the privilege of reporters; it’s for the public’s interest.

                The Charlottesville Daily Progress also made note of MSHA’s FOIA digressions. “Mine safety, food safety, drug safety and other issues crucial to the well-being of Americans are at stake,” the Daily Progress wrote.

                “Many Americans no longer trust the government, no longer believe in its ability or willingness to serve them. But the real problem is that those in government don’t trust the American people. They don’t want us to know.

                “The disappointment, the distrust, the disengagement so many Americans now feel about their government trace to this fundamental flaw. Government has disengaged from us.”

                This is certainly the case with MSHA.

                One of the most successful MSHA initiatives to help the mine operator reduce costs, and actually learn first-hand about MSHA case law is the Alternative Case Resolution Initiative or ACRI. But to have a successful ACRI program, the mine operator needs MSHA inspector notes from which a citation is based. 

                Now that operators cannot access inspector’s notes without going through the legal discovery process, the ACRII program is doomed to fail. In the long run, this will cost operators, and all taxpayers, more money if both sides must take the next step forward in litigation and go through the discovery process.

                This is a disgrace. It’s an insult to our vital mining industry. It flies in the face of common sense. It does not have to be the case. MSHA’s inspector notes should be made available through FOIA, and not the legal discovery process.

                Asking to see inspection notes is no different than a person who has been accused of speeding asking to look at the police officer’s radar detector. It’s allowed.

                A person accused of speeding does not have to legally challenge the ticket in order to see what the ticket is based on. If in fact the radar detector shows that the person was speeding, then that person can make the decision not to legally challenge the ticket, or to challenge the ticket based on a faulty calculation.

                Regardless, the legal discovery process might prove unnecessary if the person is offered the evidence. Because legal action is unnecessary, it saves time and money for both sides. This analogy can easily be applied to MSHA.

Bi-Partisan Legislation May Help

                It is doubtful that MSHA will willingly change.

                Even in a recent FMSHRC judge’s decision, Judge Manning noted that MSHA is “denying FOIA requests for basic information.”

                But there is hope from both Republicans and Democrats in Congress that legislation can in part, remedy the situation.

                The OPEN Government Act of 2005 (Senate Bill 394 / House Resolution 867) is sponsored by John Cornyn, R-TX, and Patrick Leahy, D-Vt. in the Senate, and Republican Rep. Lamar Smith of Texas, in the House.

                The legislation closes a number of loopholes in the existing Freedom of Information Act. It mandates timely and effective access to once-public information. It establishes an ombudsman to mediate FOIA disputes and provide oversight of the process, requires an impact statement when Congress creates a new exemption, clarifies fee waiver provisions and allows for more equitable recovery of attorneys fees when disputes result in litigation.

                The legislation is supported by a wide spectrum of political groups in America from numerous journalism organizations, to the general counsel of the National Security Archive to the Heritage Foundation.

                Mark Tapscott, Director for the Center for Media and Public Policy at The Heritage Foundation told a Senate Committee, “It is my hope that those members of Congress who consider themselves of a conservative persuasion will pay particular attention to The Open Government Act of 2005. Because it can be an effective resource for restoring our government to its appropriate size and functions.

                “Sunshine Is the best disinfectant not only in the physical world, but perhaps even more so in fighting waste, fraud and corruption in government and in protecting public safety,” Tapscott said.

Open Government for All

                Small mine operators, and journalists such as myself, are at the mercy of MSHA officials. We cannot afford to take the government to court. There are no serious consequences for those officials who have secretly changed the rules as MSHA did when it decided that it would no longer make inspectors’ notes available through FOIA.

                There are no consequences for MSHA officials who want to be vengeful and not release information.

                Obviously there are people at MSHA who believe that the agency functions better when you don’t have “outsiders” looking at how MSHA conducts its business, and  how inspectors or MSHA officials made certain decisions.

                But in the words of  Walter Mears, the former Associated Press Washington Bureau Chief, who stated at the hearing: “It’s not their business. It is all of our business. That is what a free, democratic government is about – you can’t have one unless people know what is going on behind government doors.”

                The bill before both Houses of Congress would have Congress find that “the American people firmly believe that our system of government must itself be governed by a presumption of openness.”

                I hope that an act of Congress can make that happen at MSHA.

                Ellen Smith is the owner and managing editor of Mine Safety and Health News, and a member of the Society of Professional Journalists and Newsletter Publishers Assn. She has won 17 journalism awards in her 18 years of reporting on mining-related issues.