The Times West Virginian

Local News

October 7, 2008

County denies FOIA request

Involving documents in relation to lawsuit filed by Commission President Alan Parks

By Misty Poe

FAIRMONT — The Marion County Commission has denied a Freedom of Information Act request from the county’s Democratic executive committee in relation to a suit filed with the state Supreme Court late last month.

Belinda Biafore, chair of the Marion County Democratic Executive Committee, requested certain documents in relation to a lawsuit filed by Commission President Alan Parks with the Supreme Court seeking to have his political opponent removed from the Nov. 4 general election ballot because of improper residency at the time of the primary election.

Biafore sought records of communication and billing between the county commission and Jeff Lilly, an attorney with the Fairmont law firm Rose Padden & Petty, who was contracted by the commission in January to investigate Burley “Butch” Tennant’s residency.

The county commission paid nearly $3,000 on two occasions this year for the services of Lilly to investigate whether or not it was legal for Tennant to run first in the primary election and then in the general election.

On Tuesday, Democrats held a political rally at Veterans’ Square about the issue.

On Sept. 25, Parks filed a personal lawsuit against Tennant and the county’s ballot commissioners, Marion County Clerk Janice Cosco, David DeMoss and JoAnn Williams. Parks is also being represented by Lilly in the petition filed with the Supreme Court.

Last week, Biafore presented the commission with an FOIA request for: A copy of the original invoice from Rose Padden & Petty dated Feb. 26 that does not have redacted information; information provided to the commission in reference to the issue of Tennant’s residency; a copy of a “lengthy and detailed” letter written by Lilly containing legal opinions on the issue; a copy of the purchase order approving the legal expense; and a copy of meeting minutes or agreements for the money to be spent on the legal opinion.

In a letter dated Oct. 7, Charles A. Shields, the assistant prosecuting attorney who represents the commission, denied all but one of Biafore’s requested items, explaining that either the commission did not have the records requested or that they were protected under exemptions to the FOIA laws.

Shields cites W.Va. Code 29B-1-4(8), which excludes “internal memoranda or letters received or prepared by any public body” from disclosure. In a 1996 Supreme Court case, Daily Gazette Co. v. West Virginia Development Office, the court ruled that the opinions, advice and recommendations from outside experts during a decision-making process are exempt from disclosure. In this case, a legal opinion from an attorney would be protected if it is “obtained during the public body’s deliberative, decision-making process.”

It is, in essence, similar in nature to attorney-client privilege.

The Supreme Court has ruled that exemptions apply to communication that reflects the “mental impressions, conclusions, opinions or theories of an attorney prepared in anticipation of litigation or in preparation for trial.”

Shields’ letter to Biafore, however, does not include a Vaughn Index, which is required under case law when a request is denied under the memorandum exclusion.

In Vaughn v. Rosen (1974), the court ruled that a detailed explanation as to why each document is exempt must be provided when a request is denied and documents are withheld.

“That index must contain a detailed justification as to why the document is exempt and specifically identify why each or any section of the document is exempt,” said Phil Reale, general counsel for the West Virginia Press Association.

“Moreover, they must provide an affidavit indicating why disclosure of the document would be harmful and the document should be exempt.”

Shields said Tuesday that his interpretation of the law is that the Vaughn Index is not required at this point.

E-mail Misty Poe at mpoe@timeswv.com.

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