W.Va. FOIA fix bill moving — without amendments

January 19, 2012 by Ken Ward Jr.

Legislation to overturn a state Supreme Court ruling that significantly weakened West Virginia’s Freedom of Information Act is making its way through the statehouse again, having passed the full House yesterday, as the AP’s Larry Messina reported:

A document’s content or context would help determine its release under West Virginia’s Freedom of Information Act, under an update to the open government law unanimously passed Wednesday by the House of Delegates.

Delegates advanced the measure to the Senate after a party-line vote rebuffed a GOP-sponsored amendment. It’s the first bill exchanged in the Legislature since the regular session began last week.

Readers may recall that Justice Robin Davis cooked up a fairly contorted ruling that concealed from public disclosure emails between then-Justice Spike Maynard and his buddy, then-Massey Energy CEO Don Blankenship, that were sent while a major verdict against Massey was headed for an appeal before the court. As we’ve written before, Justice Davis blatantly mischaracterized the content of some of the emails that were released during an earlier portion of the case, making out like none of them had anything to do with the public’s business. Perhaps the best description of the problems with the decision were outlined in a dissent filed by Justice Margaret Workman, which we discussed here.

The Legislation now under consideration, H.B. 2402, would rewrite the state’s definition of public record in this way (underlined language is what would be added to the law):

“Public record” includes any writing containing information relating prepared or received by a public body, the content or context of which, judged either by its content or context relates to the conduct of the public’s business. prepared, owned and retained by a public body

Interestingly, the House Democratic leadership made sure to block two amendments proposed by House Minority Leader Tim Armstead, R-Kanawha.

One amendment would have significantly narrowed a problematic FOIA exemption that covers “internal memoranda or letters received or prepared by any public body,” adding the requirement that such documents could only be withheld “to the extent that these internal memoranda or letters contain information which would be specifically exempt from disclosure” under any of the other state FOIA exemptions.

The other would have added this language to the existing exemption for certain law enforcement records:

Such agency shall, at the conclusion of any investigation resulting in a criminal charge, prepare a full report of such investigation; and, unless the agency determines that disclosure of that report would hinder prosecution of those criminal actions, or any other ongoing investigation, such report shall be subject to disclosure.

The bill now goes to the Senate, where Judiciary Chairman Corey Palumbo, D-Kanawha,  told the AP that he generally favors broadening the scope of FOIA, but also wants to examine how other states define “public record” in their versions of that law.  Maybe that review won’t take too long … all Delegate Palumbo needs to do is point his web browser to the site of the Reporters Committee for Freedom of the Press, and he can pull up a side-by-side of all state public records laws.  If you’re interested in protecting the public’s right to know in West Virginia, Sen. Palumbo’s number at the Capitol is (304) 357-7880. If you want to encourage Senate President Jeff Kessler to move this legislation, his number is (304) 357-7801.

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