Sustained Outrage

Lawmakers kill FOIA fix legislation

Well, West Virginia lawmakers have succeeded in killing off for another year any efforts to fix the huge hole the state Supreme Court — in the name of disgraced former Justice Spike Maynard and his buddy, former Massey Energy CEO Don Blankenship — punched into our state’s Freedom of Information Act.

On Wednesday, the Senate Judiciary Committee voted down a bill that would have overturned that November 2009 ruling the court issued to conceal e-mail messages between Maynard and Blankenship, sent at a time that a huge verdict against Blankenship’s company was headed for a court appeal.  Sen. Evan Jenkins, D-Cabell, explained his opposition to the legislation this way:

The state Supreme Court said our definition is clear and unambiguous. The court itself said we don’t need more clarification, and we are following the viewpoint of most other jurisdictions.

Actually, the meaning of our FOIA in this regard used to be pretty clear … until the Supreme Court’s Maynard-Blankenship ruling was issued. The definition of a “public record” in the statute isn’t that hard to understand:

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

As I’ve explained before on this blog, the problem is that Justice Robin Davis ignored that and dug through some federal case law to make up a different way of defining the term that would allow the Maynard-Blankenship emails to be kept secret. To get there, Justice Davis had to blatantly mischaracterize some of the emails that had already been released to The Associated Press, which had sued to get the rest of the correspondence. She ended up with this new point of law:

A trial court’s determination of whether personal e-mail communication by a public official or employee is a public record, subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record.

Under that language, the context of the email discussion between Maynard and Blankenship — the heat of a political campaign, the impending appeal of a major case against Blankenship’s company, comments Maynard made defending Massey’s operation of a mine where two workers had recently died — could not be part of the consideration when deciding if the e-mails could be released. The context of a sitting Supreme Court justice having such discussions with the CEO of a major litigant on the eve of important court hearings would not be considered — ignoring the public’s a right to know if such blatant conflicts of interest are at work in our judicial system.

As Justice Margaret Workman explained in her dissent in this case:

In the case at hand, a Justice sitting on the West Virginia Supreme Court of Appeals communicated by e-mail on a somewhat regular basis with a friend who was the Chairman and CEO of a party litigant with a case pending before the Court. With one exception, the literal content of those e-mails did not contain information relating to the conduct of public business.

The fact that those e-mails had been sent, however, did contain relevant information.

First and foremost, it discloses the existence of a personal relationship between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its first FOIA request, a motion filed by the Plaintiffs in Caperton  seeking Justice Maynard’s recusal from that case was pending, the basis of which was his personal relationship with Mr. Blankenship.

The fact that the e-mails were sent, albeit on issues unrelated to matters pending before this court, is clearly relevant to the relationship between Justice Maynard and Mr. Blankenship.

Because that relationship was the basis of a motion for recusal, the relationship was itself related to Justice Maynard’s conduct of the public’s business.

The legislation here, sponsored by Delegate Barbara Fleischauer and a host of House leaders, is really very, very simple. HB 2402 simply modifies the definition of “public record” this way:

“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;

Now, Senate Judiciary Chairman Corey Palumbo, D-Kanawha, is seeking a legislative interim committee study not just of this issue, but the state’s entire Freedom of Information Act:

I was a little disappointed that we didn’t pass that bill, which I think would have provided for more transparent government.  And if the committee wasn’t willing to support that, I at least want to take a look at doing it next year.

Perhaps Sen. Palumbo will arrange to have the lawyers who represented The Associated Press — along with the various media and good-government groups that filed friend-of-the-court briefs in support of the AP — come and explain this issue so everyone involved understands it more clearly.