We broke the story in this morning’s Gazette that the Tomblin administration won’t let the public see its correspondence with the oil and gas industry leading up to this month’s executive order mandating new regulations on Marcellus Shale drilling.
As we reported:
In a three-page letter, Deputy General Counsel Jeffrey M. Shawver said the Governor’s Office had withheld an unspecified number of records that Shawver said were part of the office’s “deliberative process.”
Kurt Dettinger, Tomblin’s general counsel, said in an interview that those withheld records include correspondence with various representatives of oil and gas companies and industry trade associations.
Dettinger said the Governor’s Office “consulted with members of the industry seeking their opinions and advice and we believe the opinions and advice on a regulatory proposal are exempt under West Virginia’s FOIA statute.
As noted in the story, Tomblin’s lawyers are citing the state Supreme Court’s ruling in the case of Daily Gazette Co. v. Development Office, in which the justices actually rules that correspondence between private parties and government agencies can very rarely be concealed from the public.
In refusing to make public correspondence between the industry and the governor, Tomblin’s lawyers are arguing that industry officials or groups were acting as “consultants or experts” providing advice and recommendations to the governor’s office about the executive order. Oddly, though, ordinary citizens and environmental groups were not given the same exclusive status — because the governor’s office released dozens of those letters and email messages.
In its ruling in the Development Office case, the Supreme Court noted a Harvard Law Review article that explained why correspondence with special interest groups should not fall within this sort of exemption to the FOIA:
The logic of such a limitation is most easily illustrated with regard to interested parties, those with a direct, personal stake in a given agency decision. The considerations underlying the exemption simply do not apply with regard to such parties: their very personal stake in the outcome provides an incentive for a full exposition of their views ample to overcome any inhibiting effects of disclosure. Moreover, confidentiality between special interest groups and Government should not be encouraged. Indeed, recommendations submitted by interested parties should be disclosed in order to help the public examine the impact that interest groups have on agency policy and to expose to public scrutiny the highly biased viewpoint that such communications are likely to contain. Communications from interested outsiders simply should not be considered intra-agency memoranda.