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Attorneys urge closing of information loophole

Attorneys representing state media outlets asked lawmakers Tuesday to reconsider closing a perceived loophole in the state's Freedom of Information Act.

The Legislature approved a study of the act earlier this year, and lawmakers on a judiciary subcommittee reviewed the matter during committee meetings at the Capitol on Tuesday.

At the meeting, West Virginia Press Association lobbyist Phil Reale and attorney Sean McGinley told lawmakers the act is vital.

"The Freedom of Information Act is an integral part of a newspaper's ability to carry out its function of educating citizens," Reale said.

"If the media cannot access the truth through public information that should be made available to it, then that void begins to be filled with things it should not be filled with due to that lack of information," he said.

Both men said the Legislature needed to close a loophole created by a 2009 state Supreme Court decision.

The ruling protects personal emails of public officials and employees from being released in response to a FOIA request. The court ruled that records could be released only if their content pertained to public business.

Critics say the ruling protected public officials and limited public scrutiny of their actions. The House of Delegates unanimously passed a bill this year to expand the scope of FOIA, but the measure did not advance in the state Senate.

McGinley, who argued the 2009 case before the Supreme Court, said lawmakers should reconsider the change in the next legislative session.

"I think that would be a good change and a good clarification to the law that would correct what this case created, which was an ambiguity that could create confusion or perhaps even mischief," he said.

The press association is an affiliation of 81 daily and weekly newspapers across the state, including the Daily Mail.

Reale said the act is essential for media and citizens to have access to their government. He cautioned any proposal to change the law's provisions would need to be thoroughly examined.

"We should be very systemic, very methodical in our approach for this, because you're dealing with something that's very fundamental to the democratic form of government we have," he said.

Reale and McGinley said the law works fairly well in its current form.

Many of its provisions mirror those in federal code and in other states' FOIA laws.

The 2009 case involved 13 emails that passed between former Supreme Court Justice Spike Maynard and then-Massey Energy CEO Don Blankenship. The Associated Press sued to obtain those emails under the Freedom of Information Act.

The AP sought the emails after the release of several photos showing Maynard and Blankenship spending time together on the French Riviera during July 2006. Massey had several cases either pending before the high court or about to be appealed there.  

Kanawha Circuit Court Judge Duke Bloom initially allowed the release of some emails in September 2008. That ruling was appealed to the Supreme Court, which held the following year that none of the emails had to be released.

The court's decision, written by Justice Robin Davis, relied heavily on its belief that none of the emails could be considered public record using the state Freedom of Information Act's current definition of that term.

The court said the only factor that could determine if a personal email could be public record was the content of the message.

Attorneys for the AP argued there was no such thing as a "purely personal" communication between a powerful business and political figure like Blankenship and the chief justice of a state Supreme Court who was presiding over a case involving Blankenship.

Davis wrote that for that argument to be valid, the definition of public record would have to be changed so that the item's context, not just content, could be taken into account.

The House bill did just that.

McGinley said he agreed wholeheartedly with changing the law to make sure public records aren't determined by content alone.

He said having to parse documents for content creates the opportunity for mischief among government officials.

"I think if it's anything related to the government's business, that should be the key," McGinley said.

Both McGinley and Reale said most agencies and local governments are generally cooperative about FOIA requests.

McGinley said when agencies deny a request, they often end up releasing information once attorneys discuss specific issues with the request.

Reale said he thinks the state should do more to educate public officials about the law. While it does provide exclusions for releasing information, he said officials should understand the broader importance of releasing as much information as possible in a free society.

"Government officials should be encouraged that even if there is an exemption, that if pragmatically this is not going to hurt anything, then that document should be released," he said.

"I think that's just a matter of educating government employees about the importance of the law and the treatment of public documents."

Contact writer Jared Hunt at or 304-348-5148.



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