West Virginia Supreme Court Hears FOIA Case Over WVU Mining Study Records
March 11, 2015
Former West Virginia University (“WVU”) researcher Michael Hendryx has co-authored many articles correlating health statistics with proximity to coal mining. Many of them may be seen here. While much of his work has been peer reviewed in journals of varying quality, little of his work has been subject to rigorous review by skeptics and little of it even posits potential causal pathways by which mining could result in regionally disparate health outcomes. Indeed, those few pieces of his work subjected to detailed review have been found lacking.
For example, in one study Hendryx and his co-authors determined that birth certificate data from Appalachia indicated higher rates of birth defects in counties with mountaintop mining than in non-mining counties. See Ahern, M., Hendryx, M., Conley, J., Fedorko, E., Ducatman, A., Zullig, K., “The association between mountaintop mining and birth defects among live births in central Appalachia, 1996-2003,” Environmental Research, 1-9. doi:10.1016. However, a highly credentialed health researcher later determined that the medical records of one hospital used in the study were categorized differently than the records of other institutions in the study and did not properly belong in the analysis. When those records were removed from the analysis, the health disparities that Hendryx attributed to mining disappeared. Lamm, S.H., Li, J., Robbins, S.A., Dissen, E., Chen, R., Feinleib, M., “Are residents of mountain-top mining counties more likely to have infants with birth defects?” The West Virginia experience. Birth Defects Research Part A: Clinical and Molecular Teratology, 103: 76-84. doi: 10.1002/bdra.23322.
One of his most recent works suggested that airborne particulates near large-scale surface mining could be serving as a tumor “promoter,” based on the exposure of laboratory cells to the dust. That paper suggested that the molybdenum content of the particulates may be responsible for the effects noted. However, that paper also concluded that the composition of the particulates used in the study was over 28% molybdenum. It is highly unlikely that this represents the composition of airborne particulates near mining operations—even the ore bodies at molybdenum mines are less than 1 percent molybdenum. See http://www.imoa.info/molybdenum/molybdenum-mining.php. Accordingly, most likely either the samples were contaminated or the analyses were faulty. Worse, an earlier paper by some of the same authors concluded that the molybdenum content of particulates from the same area consisted of only 0.6 percent molybdenum—a more reasonable estimate. The disparities in these analyses of dust from the same location is unexplained entirely in Hendryx’s work.
Against this background, the Sierra Club sought to utilize Dr. Hendryx’s work in a challenge to a Clean Water Act § 404 “fill” permit issued by the Corps of Engineers to Highland Mining in 2011. The Sierra Club listed Hendryx as an expert witness, but abruptly withdrew his name when Highland Mining served him with a subpoena for much of his underlying work and for copies of his communications with anti-mining groups. The Sierra Club’s decision to abandon Hendryx and similar witnesses mooted the subpoena, but Highland then submitted a Freedom of Information Act (“FOIA”) request to WVU for much of the same information. Included in the information sought were the raw data and data compilations relied upon by Hendryx—just the type of materials that might explain or reveal additional gaps or weaknesses in his work.
WVU produced some documents, but resisted the production of others, claiming that the FOIA: (1) sought information that was exempt from FOIA release as “deliberative” materials; (2) sought material that should be protected in the name of “academic freedom”; and (3) was overly broad and unduly burdensome. Highland Mining challenged the denial of the documents in the Circuit Court of Monongalia County. The court ruled in favor of WVU on all three issues.
Specifically, the court held that the “deliberative process” privilege applied to the requested documents. Highland argued that the privilege has only been narrowly applied to actions involving state agencies vested with decision-making authority concerning public policy. The court, however, determined that the requested documents informed Hendryx’s conclusions regarding coal mining’s effect on the health of West Virginia’s citizens, which the court characterized as agency policy-making. The court also held that raw data and compilations requested by Highland fell under this privilege because such data was “inextricably” linked to Hendryx’s deliberative process. Additionally, the court found that the privilege’s purpose of promoting candid commentary and protecting WVU’s decision-making processes would be undermined if the University was required to disclose the requested materials.
The court also found that disclosure of the Hendryx documents would constitute a violation of WVU’s “academic freedom.” The court reasoned that email communications regarding the articles, drafts, peer review comments, and the like were of such a personal nature that disclosure would constitute an unreasonable invasion on Hendryx’s privacy. The court made this finding despite the fact that the “academic freedom” exemption to FOIA has never been recognized in West Virginia.
Finally, the court held that Highland’s FOIA request as a whole was unreasonably burdensome. The court noted that WVU had identified approximately 43,000 potentially responsive documents and concluded that the scope of the request and the cost involved in responding to the request was unreasonable.
Highland appealed the Circuit Court’s decision to the Supreme Court of Appeals of West Virginia. On March 4, 2015, the Supreme Court heard oral argument in the case. We anticipate a decision before year end.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.