Attorney General Darrell McGraw's office says it will not release the contents of federal subpoenas recently received by two of Gov. Joe Manchin's cabinet agencies.
CHARLESTON, W.Va. -- Attorney General Darrell McGraw's office says it will not release the contents of federal subpoenas recently received by two of Gov. Joe Manchin's cabinet agencies.
The lawyer who is helping the Department of Administration and Division of Highways comply with those subpoenas has rejected the Gazette's request for the documents.
The newspaper sought the subpoenas through a request made under West Virginia's Freedom of Information Act.
In declining to release the subpoenas, Special Assistant Attorney General Dwane Tinsley cited federal rules that govern criminal proceedings. Tinsley is a Charleston lawyer hired by McGraw's office to assist in the case.
West Virginia University law professor Patrick McGinley, an expert on the Freedom of Information Act, said it appears that the state is improperly withholding the documents.
Tinsley wrote that the requested documents are exempt from the state public-records law because the federal rules prohibit government attorneys and others from disclosing matters before a grand jury.
"The information requested and contained in grand jury subpoenas would tend to reveal the direction of the grand jury investigation that could impede the investigation being conducted, and thereby interfere with the enforcement of the law," Tinsley wrote last week.
But McGinley said no law prohibits recipients of federal grand jury subpoenas from discussing the contents of a subpoena, unless a court order says otherwise.
Secrecy requirements for participants in the grand jury -- such as jurors and prosecutors -- do not extend to witnesses or potential witnesses, McGinley said.
"Somebody who goes before a grand jury could come out and tell the press what questions were asked, and how he or she or responded, unless there's a court order barring that," McGinley said, "and the same applies to a subpoena."
CHARLESTON, W.Va. -- Attorney General Darrell McGraw's office says it will not release the contents of federal subpoenas recently received by two of Gov. Joe Manchin's cabinet agencies.
The lawyer who is helping the Department of Administration and Division of Highways comply with those subpoenas has rejected the Gazette's request for the documents.
The newspaper sought the subpoenas through a request made under West Virginia's Freedom of Information Act.
In declining to release the subpoenas, Special Assistant Attorney General Dwane Tinsley cited federal rules that govern criminal proceedings. Tinsley is a Charleston lawyer hired by McGraw's office to assist in the case.
West Virginia University law professor Patrick McGinley, an expert on the Freedom of Information Act, said it appears that the state is improperly withholding the documents.
Tinsley wrote that the requested documents are exempt from the state public-records law because the federal rules prohibit government attorneys and others from disclosing matters before a grand jury.
"The information requested and contained in grand jury subpoenas would tend to reveal the direction of the grand jury investigation that could impede the investigation being conducted, and thereby interfere with the enforcement of the law," Tinsley wrote last week.
But McGinley said no law prohibits recipients of federal grand jury subpoenas from discussing the contents of a subpoena, unless a court order says otherwise.
Secrecy requirements for participants in the grand jury -- such as jurors and prosecutors -- do not extend to witnesses or potential witnesses, McGinley said.
"Somebody who goes before a grand jury could come out and tell the press what questions were asked, and how he or she or responded, unless there's a court order barring that," McGinley said, "and the same applies to a subpoena."
Tinsley's letter did not cite any court order as grounds for withholding the subpoenas.
McGinley pointed out that in recent months, Toyota has disclosed details of subpoenas it has received in a federal grand jury investigation into the safety of the company's vehicles.
Several years ago in Illinois, lawyers for then-Gov. Rod Blagojevich cited the same federal rule that Tinsley did when they were trying to keep secret subpoenas served on Blagojevich's office.
In the case, the Chicago-based watchdog group Better Government Association had filed suit to make Blagojevich release the subpoenas.
A state appeals court held that federal rules on grand jury secrecy did not pre-empt Illinois' Freedom of Information Act. In its opinion, the court also noted that those rules do not prohibit private citizens who receive subpoenas from disclosing their contents.
Manchin is running for U.S. Senate in West Virginia's special election to replace the late Sen. Robert C. Byrd. His office has declined to elaborate on the nature of the subpoenas.
In a statement released earlier this month, the Manchin administration confirmed that the state received two subpoenas. It also said the state has not been advised that Manchin or any other state official is under investigation.
The subpoenas seek documents and were served on the two agencies, not individuals, Tinsley has previously said.
The Gazette has submitted another written request to Tinsley, urging him to reconsider his position.
Reach Alison Knezevich at alis...@wvgazette.com or 304-348-1240.
