CHARLESTON, W.Va. - Lawmakers are discussing a bill that could increase the opportunities for public entities to withhold "internal memoranda" requested under the Freedom of Information Act.
The measure, House Bill 3114, was introduced Monday with bipartisan support. It changes the kinds of documents that would be exempt under public record requests.
"I would rather do away entirely with the exemption for internal memos and correspondence," House Minority Leader Tim Armstead, R-Kanawha, said Tuesday afternoon. "But I just don't think we have the support to do that."
A FOIA request is an avenue the public can use to ask for documents regarding government activity. It's a tool commonly used by journalists and many others to receive information that might not be readily available.
Right now the law states officials don't need to provide documents that qualify as "internal memoranda or letters received or prepared by any public body." Critics, including Armstead, say that exemption is too vague.
The new measure says any internal or external "communications" that deal with opinions or "mental impressions" received by an employee or member of the public body could be exempt.
To fall under the exemption, the communications would have to help the public body in making some sort of decision, and the communications would have to be made available after the decision was made.
Armstead has repeatedly spoken against this particular exemption. He has introduced a different bill that would eliminate the exemption altogether. There's little chance the other bill will pass.
"I think their concern - which really is not my concern, but it is a concern that has been expressed - is whether that would have a chilling effect on those discussions, if brainstorming became public information," Armstead said.
He did not believe the bill would broaden the exemption. He said the language specifically mentions opinions, not facts. Any communication that consisted of only facts - a tax spreadsheet, for example - would not be exempt, Armstead said.
It's not how Armstead would write the bill, but it's a compromise.
"I think anyone can misuse any law, which is the problem when you're making any law," he said. "You can't always make a law that prevents anyone from misusing it, unfortunately."
He isn't particularly fond of the language in the bill as it was introduced, although he does like the provision requiring agencies eventually to make the material available. But the bill is a step toward more open government, in Armstead's opinion.