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Some officials ignoring FOIA requests

Twenty-five years ago, West Virginia lawmakers passed a law to guarantee residents access to government records.

In the 1977 state Freedom of Information Act, lawmakers declared that residents are "entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees."

Today, that law - called the FOIA - is widely ignored by county governments, according to West Virginia's first-ever statewide public records audit.

Many county sheriffs, school superintendents, commissioners and clerks deny citizens their legal right to government budgets, employee contracts and expense reports, and crime incident reports, according to the audit.

Statewide, counties scored a total of 693 points out of a possible 1,320 points in the audit. That's about 53 percent, a failing grade on any test.

"I think it's a very sad commentary on government's responsibility to a very basic right," said Pat McGinley, a West Virginia University law professor who teaches public records law. "It should be 100 percent compliance."

Only one county came close. Lewis County scored the best, with 23 out of 24 possible points in the audit. It was the only county to perform well enough to rate an "A" if the audit's scoring system were converted to letter grades.

In late October, a team of newspaper reporters visited all of West Virginia's 55 counties to test how well local governments complied with the FOIA. They asked to review records from four county agencies. Reporters who performed the auditing kept track of whether they were given access - and how many hoops they had to jump through for that access.

The Associated Press Managing Editors Association organized the project, which was similar to public records reviews conducted by the media in other states.

Terry Wimmer, the Shott Chair of Journalism at WVU, coordinated the project.

"The goal of this project is not to point fingers at counties and public officials," Wimmer said in a report on the audit. "The goal is to elevate understanding among citizens and public officials about what information is open to inspection."

Chris Stadelman, managing editor of the Charleston Daily Mail and president of the editors' group, said, "Obviously, we'd like the number to be much higher across the board.

"The point of the audit was to choose documents that are clearly defined as public under West Virginia law, yet many of them were still not provided," Stadelman said.

"It's disturbing, although the numbers aren't out of line with many other states," he said. "I don't know whether that speaks well for West Virginia, or just shows many others have work to do as well."

Under West Virginia's public records law, "every person has a right to inspect or copy any public record of a public body in this state."

Lawmakers defined public records very broadly: "Any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body."

The law applies to state, county and local government agencies. This audit examined only county government.

Under the law, these agencies may withhold only eight narrow categories of information.

For the audit, county commissions were asked for the current year's budget. County clerks were asked for their most recent expense reports. School boards were asked for their superintendents' contract. Sheriffs were asked for the most recent week's crime log.

Anyone in any county should be able to walk in off the street and obtain these records, without filing a written FOIA request or hiring a lawyer. Under the law, they shouldn't have to give their name or explain why they want the records.

But in almost every government office in every county, this wasn't the case, the newspaper audit found.

Berkeley and Doddridge scored 21 out of 24 points, Putnam scored 20, and Morgan scored 19. No other counties performed well enough to rate an "A" or a "B" under the audit's scoring system.

The average score was 12.

County size mattered little.

Of the 10 largest counties, five scored below the average. Wood County, the third largest in the state, scored a 7. Raleigh County, with the state's fifth largest population, scored only 3. Five of the smallest 10 counties scored at or above the average. Doddridge, for example, tied for second statewide. It is the fourth smallest county in the state, with just 7,400 residents reported in the 2000 Census.

Among the four offices audited, county clerks and commissions did the best: 80 percent of the clerks and 78 percent of the commissions provided the information without a formal FOIA request letter.

"If the highest scores were 80 percent, that means that in 20 percent of the cases - one-fifth of the cases - citizens could not get information," said McGinley, the WVU law professor.

"In many cases, the auditors only obtained the documents after going back several times," McGinley said. "That's assuming that normal citizens would do that. Most citizens aren't as familiar with their rights and might not come back and ask a second or a third time."

School systems did not respond as well as clerks and commissioners. Fifty-nine percent provided the information without a formal FOIA letter. Another 31 percent provided the information after the letter was filed.

Eleven percent ignored the formal FOIA request. That means in six West Virginia counties, residents couldn't find out how much their school superintendent is paid, or whether he or she gets a taxpayer-funded vehicle.

County sheriffs were a completely different story.

"Sheriffs did horribly," Wimmer wrote in his report. "Seventy-six of the requests were denied with 63 percent of the denials coming in the form of a violation of the law."

Those violations occurred when 26 counties didn't respond to formal, written FOIA requests.

Under state law, government officials must respond to written requests within five days. They must either provide the requested documents, state when and where the documents may be reviewed, or deny the request. If they deny the request, they must state their reasons - citing a specific exemption - in writing.

"This shows that we have a criminal justice system at the county level that wants to conceal what it's doing," McGinley said. "A log book is just following the daily activities of a police force. It clearly doesn't fall within the exception.

"It is really indefensible, and it tells you that they have no idea what their obligations are under the law," McGinley said. "If they know the criminal laws as well as they know the FOIA, we're in trouble."

As part of the project, the newspapers tried to find out how much different counties charge for copies of records requested under the FOIA.

But the reporting by auditors of these costs was inconsistent, so a definitive answer could not be reached.

Still, the copying fees varied widely. Some offices didn't charge at all. Some charged 50 cents per page; some charged $1.50.

Under the law, government agencies may "establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records." Neither lawmakers nor the courts have defined "reasonably calculated" fees.

Stadelman said that his organization intends to use the audit to encourage government officials to be more open, and to comply with the law.

"I'd like to think that educating public officials about the law and the need for compliance would solve the problem," Stadelman said last week.

"Hopefully, the problem is that they lack the knowledge, not the will, to comply," he said. "The West Virginia Associated Press Managing Editors group will work with county associations to facilitate that."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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