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Governor's Office won't disclose gas industry correspondence

CHARLESTON, W.Va. -- The Governor's Office is refusing to make public correspondence between it and the oil and gas industry regarding potential new regulations on Marcellus Shale drilling operations.

Lawyers for Senate President Earl Ray Tomblin, acting as governor, this week denied a Freedom of Information Act request from The Charleston Gazette for the records.

The Gazette had asked for correspondence between any outside parties and the Governor's Office concerning the drafting of Tomblin's July 12 executive order calling for emergency rules on drilling operations.

Tomblin issued the order -- requiring new rules from the state Department of Environmental Protection -- in response to growing public pressure following the failure of any Marcellus legislation to win approval earlier this year.

On Tuesday, the Governor's Office provided the Gazette with copies of dozens of letters from individual citizens and some environmental groups calling for a special legislative session or a moratorium on new drilling operations.

In a three-page letter, Deputy General Counsel Jeffrey M. Shawver said the Governor's Office had withheld an unspecified number of records that Shawver said were part of the office's "deliberative process."

Kurt Dettinger, Tomblin's general counsel, said in an interview that those withheld records include correspondence with various representatives of oil and gas companies and industry trade associations.

Dettinger said the Governor's Office "consulted with members of the industry seeking their opinions and advice and we believe the opinions and advice on a regulatory proposal are exempt under West Virginia's FOIA statute.

"We're not talking about hundreds of pages," Dettinger said. "There's not a significant volume of information that was withheld.

"But we feel strongly that the deliberative process is protected under West Virginia FOIA law," Dettinger said.

The Governor's Office cited the state Supreme Court's ruling in 1996 in a case brought by the Gazette to obtain correspondence between the developers of a proposed pulp mill in Mason County and representatives of the state Development Office.

In that case, the Caperton administration had argued all correspondence between the mill developers and the Development Office was exempt from release under a section of state law covering "internal memorandum or letters received or prepared by any public body."

A unanimous Supreme Court sided with the Gazette, ordering most of the pulp mill correspondence released. Justices said state government correspondence with outside parties is generally public, and can only be withheld when it consists of "written advice, opinions, recommendations to a public body from outside consultants or experts obtained during the public body's deliberative, decision-making process."

Dettinger said he believes that language supports withholding oil and gas industry correspondence with the Governor's Office about what sort of regulations DEP should implement to govern Marcellus drilling.

"We would readily admit that we consulted with members of industry," Dettinger said. "During our deliberative process, we can consult with outside consultants and that opinions, advice and recommendations are exempt under the FOIA law."

Patrick C. McGinley, a West Virginia University law professor who represented the Gazette in the 1996 case, said the Supreme Court never intended to protect correspondence between government and lobbying groups.

"They're not consultants," McGinley said. "That is ridiculous."

McGinley pointed to a footnote in the 1996 decision in which the Supreme Court cited a Harvard Law Review article that argued, "confidentiality between special interest groups and government should not be encouraged."

"Indeed, recommendations submitted by interested parties should be disclosed in order to help the public examine the impact that interest groups have on agency policy and to expose to public scrutiny the highly biased viewpoint that such communications are likely to contain," the law review article said. "Communications from interested outsiders simply should not be considered intra-agency memoranda."

McGinley said, "This is precisely the type of information that the Supreme Court in the Development Office case indicated should be disclosed to the public and did not qualify for any exemption."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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