The people, in delegating authority, do not give their public servants the right to decide what is good for them to know and what is not good for them to know.
— W.Va. Freedom of Information Act
Well, that’s the way it is supposed to work, anyway. Last week’s ruling by the West Virginia Supreme Court of Appeals in The Associated Press quest to get a look at former Justice Spike Maynard’s e-mail messages to Massey Energy President Don Blankenship might change that pretty significantly.
The 4-1 decision — with a majority opinion written by Justice Robin Davis — is one of the few cases in the history of West Virginia’s Freedom of Information Act that seems likely to reduce the information available to the public.
It’s hard to say what exactly what the long-term impact will be, but the reasoning employed by Davis could give secretive or mischievous West Virginia government officials some language to try to lean on if they want to withhold their appointment calendars, job-seeking letters or e-mails where they are campaigning on public time, and potentially a wide variety of correspondence if the person they are corresponding with happens to be an old friend.
“It’s mild to say that we are dismayed by the decision, which goes against the spirit and intent of the law,” said Franklin G. Crabtree, executive director of the West Virginia American Civil Liberties Union, which joined the Reporters Committee for Freedom of the Press in filing a friend-of-the-court brief in the case. “It’s our understanding that state FOIA was written to encourage a transparent government. This decision doesn’t do that.”
“The communication in this dispute was the result of emails on a public account, from a public agency, on public time to a litigant coming before the body [Maynard] served. That factual scenario should have a very difficult time being exempted from any FOI act,” Crabtree added.
Sure, Court Administrator Steve Canterbury lost on his broad argument that the FOIA does not apply to records kept by the judicial branch of state government or that the FOIA is simply unconstitutional. But Davis gave this only a one-sentence footnote in her opinion that said, “We reject the suggestion in Mr. Canterbury’s brief that FOIA has no application to records kept by the judicial branch of government.”
And the new law contained in Syllabus Point 3 of the decision is not, by itself, that bad for advocates of open government:
Under the clear language of the ‘public record’ definition, a personal e-mail communication by a public official or a public employee, which does not relate to the conduct of the public’s business, is not a public record subject to disclosure under FOIA.
In her opinion, Davis made out like she was just making sure that “a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employee’s office” would not be subject to FOIA disclosure.
Some commentators are already falling for this. Over at MetroNews, Hoppy Kercheval wrote the other day in his column:
Still even public officials should have some reasonable expectation of privacy for their personal communications. For example, no one would argue that a judge’s personal handwritten note delivered to a friend would be subject to public disclosure just because he used judicial stationary.
But is that really what Justice Davis is trying to protect?
To find out, let’s first read her opinion closely, paying special attention to two cases she cites favorably as examples of how to define what material is “public” and what is “private” under the FOIA.
Consider the case of Gallant v. National Labor Relations Board, a 1994 U.S. Court of Appeals for the District of Columbia opinion that Davis describes as being “on point.”
That case involved the efforts of Karl Gallant, vice president of the National Right to Work Committee, to obtain correspondence in which NLRB member Mary Miller Cracraft tried to set up her own reappointment to the board as her term expired in 1991. The D.C. court upheld the NLRB’s decision to refuse to disclose the letters and faxes, saying:
The Cracraft letters were “personal records” of Mary Cracraft, and not “agency records” within the meaning of the FOIA. Nothing in the record here indicates that Cracraft created the correspondence with anything other than the purely personal objective of retaining her job. The actual use of the correspondence, and Cracraft and other employees’ lack of reliance on the correspondence to carry out the business of the agency, also supports the district court’s finding that the documents were not agency records.
Davis also favorably cited a case called Bloomberg L.P. v. United States Securities and Exchange Commission, a 2004 case decided by the U.S. District Court for the District of Columbia.
In this case, reporters from Bloomberg News were trying to get copies of the appointment calendar, telephone logs and message slips kept by former SEC Chairman Harvey Pitt. The court ruled that none of these documents were “agency records” subject to federal FOIA disclosure.
There are a couple of interesting problems with all of this.
First of all, the very types of records sealed from public view by these two federal decisions — agency head calendars, for example — have long been considered public records under West Virginia’s FOIA.
Second, in relying on these two federal court cases, Davis ignored very real — and very important — differences between the federal Freedom of Information Act and West Virginia’s FOIA. Our law is much more disclosure oriented than the federal statute or the laws in most other states. The West Virginia statute itself mandates liberal disclosure of government records, something the court has always before read to mean releasing as much information as possible.
For example, as the Gallant opinion cited by Davis noted, the federal FOIA “itself does not indicate the types of documents that constitute ‘agency records’ within the meaning of the Act” nor does the statute “sweep into FOIA’s reach personal papers that may ‘relate to‘ an employee’s work.”
But when it wrote the West Virginia FOIA, the Legislature did define the “public records” and it specifically said the term includes “any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.”
Likewise, in Bloomberg, the D.C. District Court noted that “neither the express language of the [federal FOIA] nor the legislative history defines the term “agency records” and went on to describe a four-point test previously devised by the court because of the lack of a specific statutory definition.
But again, the West Virginia Legislature defined the term “public record”. So what’s the point in using a test made up by a federal court to describe how a different term should be defined under a different law?
Moreover, if Davis wanted to protect public employees from having to release a child’s report card that they happened to have in their desk — or provide some exemption for notes to family or friends, as Hoppy mentioned — there is an avenue built into West Virginia’s FOIA to do that.
W.Va. Code 29B-1-4(a)(2) already exempts from disclosure:
Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance …
This exemption sets up a balancing test. Agencies may withhold “information of a personal nature” if the disclosure of that information “would constitute an unreasonable invasion of privacy.” But, before they can do so, they must balance the interests involved an determine if “the public interest by clear and convincing evidence” requires disclosure.
Earlier in the case, lawyers for Supreme Court Administrator Steve Canterbury tried to cite this exemption as protecting the e-mails Maynard sent to Blankenship. But Kanawha Circuit Judge Duke Bloom applied this balancing test and ruled that five e-mails concerning Maynard’s re-election campaign must be disclosed. (See here and here for those e-mails and print-outs of the Web sites they referred to).
Among other things, the five e-mails contained one note in which Maynard comments to Blankenship about part of the law firm Web site of one of Maynard’s primary election opponents, Menis Ketchum, that describes the firm’s work on mine safety cases and refers to the Jan. 29, 2006, fire that killed two workers at Massey’s Arcoma Alma No. 1 Mine in Logan County. Maynard wrote to Blankenship:
This one you gotta see — Aracoma is mentioned — you could have prevented it if you had only operated the mine properly according to Menis.
In her opinion, Davis downplayed the content of the e-mails Maynard sent to Blankenship:
None of the e-mail’s contents involved the official duties, responsibilities or obligations of Justice Maynard as a duly-elected member of this Court.
Twelve of the e-mails simply provided URL links to privately-operated internet websites that carried news articles Justice Maynard believed Mr. Blankenship would be interested in reading. All twelve of the news articles were written by private entities and were already in the public domain. The thirteenth e-mail did nothing more than provide Mr. Blankenship with the agenda for a meeting held by a private organization.
Consequently, logic dictates that we conclude that not one of the thirteen e-mails was related in any manner to either the conduct of the public’s business, or to the official duties, responsibilities or obligations of the particular body, which in this instance was Justice Maynard.
Tom Breen at the AP has alread pointed out the blatant mischaracterization of the e-mails by Davis. But it’s also worth noting that Maynard wrote the e-mail the mentions Aracoma at 1:01 a.m. on Thursday, Oct. 11, 2007. That was just hours after the Supreme Court — including Maynard — heard its first argument in the Harman Mining v. Massey case.
And at the time, a civil case filed by the two Aracoma widows against Massey and against Blankenship personally was pending in Logan Circuit Court, with a possibility that it would end up in from of Maynard and the Supreme Court.
Remember, Davis concluded that this e-mail did not fit the definition of a “public record” in West Virginia’s FOIA, that is, it does not contain “information relating to the conduct of the public’s business.” Because of that, David didn’t have to move on to the balancing test, and decide if Maynard’s e-mails to Blankenship would, if released, constitute an invasion of privacy or, if they would, if the public interest in releasing them anyway was compelling.
David wasn’t alone in this ruling. Chief Justice Brent Benjamin (yes, he took part in this case), Justice Thomas McHugh and Ketchum all sided with secrecy.
The only one who didn’t was Justice Margaret Workman. It will be interesting to see what she says when she eventually files a written dissent.