Sustained Outrage

Key FOIA case: Jefferson zoning hits Supreme Court

A battle over a new zoning ordinance  in Jefferson County over in West Virginia’s Eastern Panhandle has hit the state Supreme Court, in the form of a public records lawsuit that has implications for government transparency across the state.

maghan.jpgIn a nutshell: The Shepherdstown Observer newspaper wants to know who signed a petition to get the new ordinance on the ballot for a Nov. 9 special election. County Clerk Jennifer Maghan, right, refused to provide the requested documents, and Circuit Judge David H. Sanders upheld that decision.

Now, the Observer has asked the Supreme Court to overturn Sanders and order the documents released. The newspaper is represented by Charles Town lawyer Stephen G. Skinner and WVU law professor Pat McGinley.

I’ve posted a copy of their Supreme Court petition, along with other documents and a copy of the underlying circuit court decision here.

I’m far from an expert on the growing controversy over zoning in Jefferson County. Just last week, the state Supreme Court overturned some 2005 amendments to the county’s zoning ordinance. Those amendments had tightened zoning restrictions by decreasing the number of lots allowed in some areas from 1 lot for every 10 acres to 1 lot for every 15 acres. Local officials aren’t sure now where that leaves them as far as what ordinance they should be enforcing. Last October, the county commission adopted a different zoning ordinance. But some residents began a petition drive to put that ordinance to a public vote — a move that could overturn the county commission’s action.

But all of that aside, West Virginians who care about the public’s access to government records should take note that, among several issues raised, is one major interpretation by Judge Sanders that — if allowed to stand — would allow state and local agencies to withhold from release any documents submitted to them.

In his Aug. 21 order, Sanders opined:

The West Virginia Supreme Court has plainly interpreted the definition contained in the West Virginia Code, finding that a public record must not only relate to the public’s business, but also must have been a record that was created by the public body in the first instance.

In their Supreme Court petition, Skinner and McGinley explain why they believe this is simply wrong … first, there’s the definition of a “public record” under West Virginia’s FOIA:

“Public record” includes any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.

Skinner and McGinley point out that most courts, including West Virginia’s Supreme Court, have ruled that the word “include” is not a term of limitation, but is rather a partial listing of a larger whole.  Defined that way, public records under West Virginia FOIA include any of the sorts of records listed — those prepared by, owned by, or retained by government agencies.

Further, that’s exactly how the state Supreme Court interpreted the definition in a case called Daily Gazette Co., Inc., v. West Virginia Development Office.  In that case, brought by the Gazette, the court held that information in the possession of a public body, but not prepared by it, fell within the definition of “public records” that must be disclosed under FOIA.

Skinner and McGinley explain what would happen if the Supreme Court doesn’t take this case in and overturn the circuit court ruling:

Interpreting the WVFOIA definition of “public record” as limiting public access to only those documents prepared by a public body would have the absurd result of excluding from public scrutiny hundreds of thousands, if not millions, of documents that have long been open to public examination.

Were the circuit court’s interpretation of  “public record” to prevail, documents such as deeds, wills, estate records, applications for environmental, business, corporate, voting and numerous other records of state agencies and commissions, as well as local government bodies, would fall outside the definition of “public record.”

It is simply preposterous to assume that the Legislature intended for the WVFOIA’s definition of “public record” to drastically curtail the scope of public access to important records in government files because they were not “prepared” by a public body.

Such a construction of the statute would devastate the public’s right to information about the conduct of the public’s business.