Sustained Outrage

The state Supreme Court this morning issued a significant decision that overturns a Jefferson County ruling that had threatened to significantly narrow the scope of West Virginia’s public records disclosure law.

Justice Menis Ketchum delivered the court’s opinion, which is posted here.

In one key point of law, the court found:

Under the West Virginia Freedom of Information Act (FOIA), W.Va. Code, 29B-1-1, et seq., a “public record” includes any writing in the possession of a public body that relates to the conduct of the public’s business which is not specifically exempt from disclosure by W.Va. Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.

Recall from previous posts (see here, here and here) that Jefferson Circuit Judge David Sanders had ruled that The Shepherdstown Observer could not obtain copies of referendum petitions because the petitions were not created by the local government.

But justices concluded otherwise:

To adopt the position of the Clerk, the Legislature’s definition of “public record” would need to read: “’Public record’ means any writing . . ..” The Clerk’s suggested definition of a public record would severely limit the scope of the Act and the right of every person to “inspect or copy any public record of a public body in this state.” W.Va. Code, 29B-1-3(1) [1992]. It is obvious that the Legislature did not intend such a restrictive interpretation, and meant for the word “includes” to be given its common, ordinary and accepted meaning, which is that of a word of enlargement. Davis Memorial Hospital, 222 W.Va. at 684, 671 S.E.2d at 689 (“[t]he term ‘includ[es]’ in a statute is to be dealt with as a word of enlargement”).

Citing a recent U.S. Supreme Court, the justices also found that release of these referendum petitions would not violate the First Amendment rights of those who signed the petitions.

Overall, there’s no question that the the ruling in the Observer case is a victory for advocates of open government in West Virginia, and is keeping in line with the court’s long history of protecting public access to government information.

Interestingly, though, Ketchum was careful to try to distinguish the petitions sought by the Observer from the e-mail messages that former justice Spike Maynard wrote to his buddy Massey Energy CEO Don Blankenship — records the court refused to release in a highly controversial ruling last year. According to Ketchum:

Having resolved the issue relevant to the word “includes,” we next address whether the referendum petition sought by the Observer is subject to disclosure under the Freedom of Information Act. In Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009), we discussed in detail when a writing in the possession of a public body is required to be disclosed under the Act. In that appeal we were asked to determine whether e-mails by public officials are “writings” as defined by the Act and whether, if so, the e-mails at issue were a “public record” under the Act. While we found in Syllabus Point 2 of Associated Press that “e-mails,” as a classification, are a “writing” under the Act, we concluded that the specific e-mails at issue in Canterbury were not a “public record” because the e-mails were of a personal nature and did not relate to the conduct of the public’s business.

Our decision in Associated Press sets forth a useful model of the analysis that should be applied by public bodies responding to a FOIA request. This model, succinctly stated, is as follows: A writing in the possession of a public body is a public record required to be disclosed under the Act where the writing relates to the conduct of the public’s business and is not specifically exempted from disclosure pursuant to W.Va. Code, 29B-1-4. Conversely, a writing in the possession of a public body is not a public record and need not be disclosed under the Act where the writing does not relate to the conduct of the public’s business or where the writing is specifically exempt from disclosure pursuant to W.Va. Code, 29B-1-4.

It is clear to this Court that referendum petitions, such as the one before us, are a “writing” as that term is defined by W.Va. Code, 29B-1-2(5). (See footnote 9) It is also clear that such petitions, when filed with a public body, are writings in the possession of a public body. It is equally clear that where such petitions call upon or require the public body to perform an official act, the petitions relate to the conduct of the public business. In the present case, the referendum petition was required to be filed with a public body (here the County Clerk) and, once filed, the petition required the County Commission and County Clerk to perform various official acts. There is no question that the petitions are public records required to be disclosed under our Freedom of Information Act.

Accordingly, we find that under the West Virginia Freedom of Information Act, W.Va. Code, 29B-1-1, et seq., a referendum petition filed with a public body is a public record required to be disclosed under the Act. The Legislature has mandated that “[e]very person has a right to inspect or copy any public record of a public body in this State, except as otherwise expressly provided by section four [§ 29B-1-4] of this article.” W.Va. Code, 29B-1-3(1) [1992]. We find no exception which would exempt the petition at issue from disclosure under the Act.

We’ve written before about the problems with the way the court ruled in The Associated Press case seeking disclosure of Maynard’s e-mails to Don Blankenship.  And Justice Margaret Workman wrote a strongly worded dissent that is worth remembering.