CHARLESTON — A state Supreme Court justice says West Virginia’s Freedom of Information laws are too narrow to fully serve the public’s right to know, and some lawmakers are willing to look at changing the code.
Justice Margaret Workman wrote Wednesday that the Freedom of Information Act should be changed so that the context in which records are produced can be considered when deciding if they qualify as public records open to view by all.
“This legislative change is sorely needed if our state is to continue developing a vivacious body of law regarding the right of the public to full information,” she wrote.
Workman was writing in dissent of a 4-1 Supreme Court decision that ruled 13 e-mails between former Chief Justice Elliott “Spike” Maynard and Massey Energy Chief Executive Don Blankenship are not public records.
The Associated Press had sued for access to the e-mails, which were written at a time that Massey had pending cases before the court and Maynard was seeking re-election. Kanawha County Circuit Judge Duke Bloom ruled that five of the e-mails counted as public documents, because they touched on Maynard’s campaign.
The Supreme Court overturned Bloom’s ruling, saying that none of the e-mails are public because the context in which they were produced doesn’t matter, only their content. The four justices in the majority determined that the content did not concern public business.
Workman disagreed, writing that she considers all 13 e-mails to be public records because of the context in which they were produced.
“They reflect that there was an ongoing personal relationship between a sitting Supreme Court justice and the chief corporate officer of a litigant in a major case at a time when the justice was participating in the case,” she wrote.
“John Q. Citizen is entitled to have that information and to accord to it whatever weight and meaning he deems appropriate,” Workman added.
Since a majority of justices disagreed about using context to determine if records qualify as public, Workman said it’s up to the Legislature to change the statute. In writing for the majority, Justice Robin Davis agreed, saying the Legislature would have to change the law to include context as a criterion for making records public.
Some top lawmakers at the Capitol for this week’s special session said they may look into doing just that.
“The Freedom of Information Act is supposed to encourage open government,” said House Judiciary Chairwoman Carrie Webster, D-Kanawha. “To the extent that there have been so many exemptions and exceptions made, we should probably revisit it.
“But if the court is encouraging us to do so, then we definitely should.”
When it was adopted in 1977, the West Virginia Freedom of Information Act contained eight reasons why a government agency could withhold information from the public. Since then, the Legislature has added more than 75 exemptions to the FOIA statute across state code, according to a 2007 review by The Associated Press.
“We’ve got a lot of exemptions out there now, and pretty soon they start to swallow up the original rule,” said Senate Judiciary Committee Chairman Jeffrey Kessler, D-Marshall.
Kessler and his staff are still reviewing the court’s opinion and Workman’s dissent, but he said he’s prepared to raise the subject in next year’s legislative session.
The House Judiciary Committee’s ranking Republican also sees value in reviewing the open records law. Delegate John Ellem, R-Wood, said lawmakers should help define when what appears to be a personal communication from an official is a public record.
“I think there is some room for clarification on our part,” Ellem said. “You can have a way to disclose something that has a public impact.”
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