Sustained Outrage

Secret meetings, Feb. 17, 2012

Today’s issue of The State Register is an interesting one … Two meetings violated the public notice requirements of the West Virginia open meetings law, and both were meetings of the Commerce Department’s Mine Safety Technology Task Force.

Now, in addition to that, there’s a little issue with the meeting notice for the state Board of Coal Mine Health and Safety, which is scheduled to meet on Thursday to receive a report on the Office of Miners’ Health, Safety and Training’s report on the Upper Big Branch Mine Disaster. The problem is that the official notice in the Register doesn’t include the location of the meeting, and of course West Virginia law requires meeting notices to include the date, time, place and agenda of all meetings. Now, the newer “online” meeting notice for the board includes the time and place — 5 p.m. at the Beckley Convention Center — but it’s the printed version of the Register that is required for legal compliance. Interestingly, the state ran into a similar problem with an improper meeting notice (subscription required) when it was preparing to release its investigation report on the Aracoma Mine fire back in 2006.

(Not for nothing — but why is the mine safety board having such an important meeting at 5 p.m., when they are likely to not get much media coverage, given evening news and morning newspaper deadlines? Good question … I understand that the OMHST is doing a press conference earlier in the day. But the board discussion could be newsworthy as well, and the 5 p.m. meeting time makes it unlikely many reporters will be able to attend.)

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

WVU Secrecy: The Big East settlement

Sometimes, you would think that West Virginia University doesn’t have a law school, at least to see the way WVU continually tries to ignore our state’s public records laws.

The latest example comes from WVU athletic director Ollie Luck in his press release about the university’s settlement with the Big East:

Luck said the agreement prohibits discussion of the details, but stressed that no state or taxpayer funds, tuition or academic support monies will be used to pay the settlement. Any settlement funding transferred, according to Luck, will come from private sources and independently generated athletic revenues.

Now, if I recall correctly, Luck has a law degree from the University of Texas. But maybe he’s a little rusty on the case law here in West Virginia. But all he needs to do is click on this link and read the state Supreme Court’s ruling in Daily Gazette Co. v. Withrow. In particular:

Assurances of confidentiality do not justify withholding public information from the public; such assurances by their own force do not transform a public record into a private record for the purpose of the State’s Freedom of Information Act.

And if that’s not enough, there’s this:

A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity.

UPDATED:

WVU has released the settlement agreement, as the Gazette’s Dave Hickman reports here. The agreement itself is posted here.

Secret meetings, Feb. 10, 2012

This week’s edition of the State Register contains no meetings that violate the public notice requirement of West Virginia’s open meetings law.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Feb. 3, 2012

Today’s edition of The State Register contains no meetings that violate the public notice requirements of West Virginia’s open meetings law.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Jan. 27, 2012

Today’s issue of The State Register includes four meetings that violated the public notice requirements of West Virginia’s open meetings law.

The agencies involved: The Bureau of Senior Services, the West Virginia Prosecuting Attorneys Institute, the Public Defender Services Corp. for the 11th Judicial Circuit, and something called the WRMS-EMS Beckley Field Office.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Jan. 20, 2012

Today’s issue of The State Register contains one meeting that violated the public notice requirements of West Virginia’s open meetings law. The agency involved? The state Department of Administration, for a meeting of the Governor’s Committee for the Purchase of Commodities and Services from the Handicapped.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

W.Va. FOIA fix bill moving — without amendments

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.

Secret meetings, Jan. 6, 2012

This week’s issue of The State Register includes three meetings that violate the public notice requirements of the West Virginia Open Meetings Act.

The agencies at fault: The Putnam County Development Authority executive committee, the Raleigh County Public Defender Service Corp., and the Real Estate Appraisers Board.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Nov. 18, 2011

We missed last week, so we’ll run through two weeks worth of public meeting notices from The State Register.

First, last week’s edition of the Register included one meeting that violated the public notice requirements of West Virginia’s open meetings law. The agency involved was Southern West Virginia Community College’s Board of Governors Committee on Tuition and Fees. And this week’s issue of the Register contained no meetings that violated the public notice requirements.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

AP: Right-to-know laws ignored around the world

In this Thursday, Nov. 3,  2011 photo, bundles of documents to be organized and digitally scanned sit in piles at the former National Police archive in Guatemala City. Guatemala adopted a freedom of information law in 2008. In the first worldwide test of freedom of information in 2011, Guatemala was among the most responsive of 105 countries involved, confirming a request from The Associated Press in 72 hours and sending all documents in ten days. (AP Photo/Rodrigo Abd)

 

EDITOR’S NOTE _ More than 100 countries have legislation that _ on paper _ gives citizens the right to know what is happening in their governments. The Associated Press has tested these laws worldwide for the first time.

By Martha Mendoza, AP National Writer

Satbir Sharma’s wife is dead. His family lives in fear in rural India. His father’s left leg is shattered, leaving him on crutches for life.

Sharma’s only hope lies in a new law that gives him the right to know what is happening in the investigation of his wife’s death. Most of all, he wants to know what will happen to the village mayor, now in jail on murder charges.

He talks quietly, under his breath, because his two young sons still think their mother is sick in the hospital and will come home. He pats a tidy stack of government documents perched on a table, under the gaze of Hindu gods from pictures on the wall.

“At least,” he says sadly, “we have the truth.”

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The promise is magnificent: More than 5.3 billion people in more than 100 countries now have the right — on paper — to know the truth about what their government is doing behind closed doors. Such laws have spread rapidly over the past decade, and when they work, they present a powerful way to engage citizens and expose corruption.

However, more than half the countries with such laws do not follow them, The Associated Press found in the first worldwide test of this promised freedom of information. And even when some countries do follow the law, the information unearthed can be at best useless and at worst deadly.

Right-to-know laws reflect a basic belief that information is power and belongs to the public. In a single week in January, AP reporters tested this premise by submitting questions about terrorism arrests and convictions, vetted by experts, to the European Union and the 105 countries with right-to-know laws or constitutional provisions.

AP also interviewed more than 100 experts worldwide and reviewed hundreds of studies.

Among its findings:

— Only 14 countries answered in full within their legal deadline. Another 38 countries eventually answered most questions, at least providing data.

— Newer democracies were in general more responsive than some developed ones. Guatemala confirmed the AP request in 72 hours, and sent all documents in 10 days. Turkey sent spreadsheets and data within seven days. Mexico posted responses on the Web. By comparison, Canada asked for a 200-day extension. The FBI in the United States responded six months late with a single sheet with four dates, two words and a large section blanked. Austria never responded at all.

— More than half the countries did not release anything, and three out of 10 did not even acknowledge the request. African governments led the world for ignoring requests, with no response whatsoever from 11 out of 15 countries.

— Dozens of countries adopted their laws at least in part because of financial incentives, and so are more likely to ignore them or limit their impact. China changed its access-to-information rules as a condition to joining the World Trade Organization in 2001, to boost the economy by as much as 10 percent. Beijing has since expanded the rules beyond trade matters. Pakistan adopted its 2002 ordinance in return for $1.4 billion in aid from the International Monetary Fund. Neither country responded to the AP’s test.

“Having a law that’s not being obeyed is almost worse than not having a law at all,” says Daniel Metcalf, the leading U.S. Freedom of Information authority at the Justice Department for the past 25 years, now a law professor at American University. “The entire credibility of a government is at stake.”

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