Fixing West Virginia’s FOIA

March 27, 2013 by Ken Ward Jr.

It appears likely that efforts are  may be dead to fix the huge hole the state Supreme Court has punched into our state’s Freedom of Information Act in the name of disgraced former Justice Spike Maynard and his buddy, former Massey Energy CEO Don Blankenship.

Yesterday afternoon, the House Judiciary Committee pulled from its agenda HB3114, a bipartisan bill that aimed — at least in part — to rewrite the state’s definition of “public record” so that it wasn’t narrowed by the November 2009 ruling in the case of Associated Press v. Canterbury.  Committee Chairman Tim Miley, D-Harrison, acted at least in part in response to concerns raised by the West Virginia Press Association about other parts of the bill.

It’s too bad, because there is consensus among leadership in both parties that the FOIA needs fixed. There’s a Democratic leadership bill, HB 2172, and a Republican leadership bill,  HB 2884, that contain similar language, to ensure that whether or not a document is a “public record” subject to release under FOIA considers “the content or context” of whether it relates to the public’s business.

Last year, similar legislation was killed by the Senate Judiciary Committee, after passing the House. But even in the House, there was some controversy. House Minority Leader Tim Armstead, R-Kanawha, dared to try to expand state government transparency by narrowing the exemption for internal government records and by requiring requiring public reports of the results of criminal investigations. Both of those amendments were successfully blocked by the House’s Democratic leadership.

In his bill this year, Armstead essentially moved to get rid of Exemption 8 altogether.  He told me yesterday:

I’d rather take out that exemption all the way. I just think that, truthfully, when you’re talking about taxpayers’ money being spent related to public questions and issues the public has a right to know.

By way of background, Exemption 8 covers “internal memoranda or letters received or prepared by any public body.”  For many years, state agencies tried to use this as a catch-all exemption to keep from releasing  variety of records — until the Gazette went to court and won a favorable Supreme Court ruling that narrowed the exemption. Here’s what the court said:

W.Va. Code, 29B-1-4(8) [1977], which exempts from disclosure “internal memoranda or letters received or prepared by any public body” specifically exempts from disclosure only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body’s deliberative, decision-making process; written advice, opinions and recommendations from one public body to another; and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process. W. Va. Code, 29B-1-4(8) [1977] does not exempt from disclosure written communications between a public body and private persons or entities where such communications do not consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process.

In the last few years, the Tomblin administration has tried to revive the use of this exemption. For example, the governor’s office refused to release correspondence with the oil and gas industry about pending rules and legislation, arguing that industry lobbyists had essentially acted as the state’s consultants in crafting such policies. More recently, the Tomblin administration cited this exemption in its efforts to keep secret an embarrassing report about the state’s broadband expansion efforts.

So there’s obviously a need to address problems with Exemption 8. The Republican House leader’s answer is to get rid of the exemption altogether — and open up more of our government’s activities to public scrutiny. But when a bipartisan bill was drawn up, in an effort to get the legislation moving somehow, this was the resulting language for Exemption 8 in HB 3114:

Internal or external communications received by any member or employee of the public body expressing opinions and mental impressions intended to facilitate deliberation of a matter pending before the public body’s deliberative decision-making process: Provided, That those communications received after a public body’s decision shall be disclosed.

That’s far broader than what is currently on the books, and certainly a much broader exemption than allowed under the Supreme Court’s Daily Gazette Co. v. Development Office ruling. Basically, any communications received by a government agency could be withheld.

So the Press Association understandably objected, and the legislation was pulled from the Judiciary Committee’s agenda. I’m told it’s likely dead for the session. Maybe that’s for the best. If lawmakers are intent on crafting FOIA legislation that makes government more secretive — rather than more transparent — then the public is probably better off with no FOIA bills coming out of the statehouse.

But it’s also true that lawmakers on both sides agree that the definition of “public record” needs to be fixed following the Maynard-Blankenship ruling. So there is consensus on that, and it’s not too late for lawmakers to do something with that consensus.

UPDATED: In floor speeches early this afternoon, lawmakers indicated that they continue to work on some sort of legislation … stay tuned …

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