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Rulings demand openness of records

In April 1977, the passage of HB 838 by the West Virginia Legislature was barely noticed.

The bill got a one-sentence write-up in the Sunday Gazette-Mail, lost among the dozens of other measures approved that year.

Two months earlier, the Gazette did editorialize in the favor of the bill, which became the West Virginia Freedom of Information Act, or FOIA.

"Bravo for the legislators who are lining up behind this bill," said the editorial, published Feb. 27, 1977. "As bureaucracy grows in self-perpetuating empires, it's time somebody decreed that the people shouldn't be kept in the dark by the bureaucrats they're supporting."

Before its passage, the bill seemed to generate only one minor controversy. That was aimed at a group that, even 25 years ago, was a favorite target for lawmakers.

"During a lengthy discussion of the bill, members of the committee expressed a fear that it would turn into a way for lawyers to make money," the Gazette reported on Feb. 25. "The bill as recommended by a subcommittee provided that persons who had to sue to see public records were to be granted reasonable attorney fees by the judge."

A quarter-century later, the West Virginia FOIA remains basically the same. Efforts to amend it - mostly to weaken its disclosure mandates - have generally failed.

The only amendments, in 1992, reinserted the language to allow those who sue to obtain documents to force the government to pay their legal fees and required agencies to release computer records.

Along the way, the law has been interpreted and defined by the courts more than a dozen times.

In most cases, the result has been the same: The state Supreme Court has affirmed the public's right to know and ordered that exemptions to that right are extremely limited.

In the mid-1980s, a progressive court led by Justices Darrell McGraw, Thomas McHugh and Thomas Miller wrote two key rulings that made this philosophy clear.

In 1985, McHugh upheld Secretary of State Ken Hechler's decision to release the names of coal mine guards from a company whose security firm license was being revoked.

In 1987, McGraw ruled that West Virginia University Hospitals, though operated by a corporation separate from the university, must comply with state public-records laws.

During those same years, the court issued a series of rulings that opened three important sets of records to public scrutiny.

In 1984, the court opened State Bar Legal Ethics Committee records of disciplinary actions against lawyers. In 1986, the court ruled that government officials must release records of the settlements of any lawsuits brought against their agencies. Later that year, the court unsealed state Board of Medicine records of investigation into complaints against doctors.

All three of those rulings were made in response to FOIA lawsuits brought by the Gazette under the leadership of late Publisher W.E. Chilton III.

But the court hasn't always ruled on the side of public disclosure.

On at least three occasions, the court has given broad readings to the ability of the state Tax Department to keep tax records confidential, former Gazette lawyer Rebecca Baitty wrote in a 1993 guide to open government in West Virginia.

In 1989, the court denied the Gazette's efforts to obtain details of a tax settlement with CSX Corp. from Tax Commissioner Michael Caryl. In a related case, the court said that the state attorney general could not disclose the CSX settlement.

And in 1992, the court ruled that while state tax confidentiality laws do not apply to a list of companies filing business and occupation tax returns, the list "should be treated as any confidential material and not leave [the circuit judge's] chambers."

Also in 1989, the court upheld a ruling by Monongalia County Circuit Judge Larry Starcher that the FOIA does not apply to the WVU Foundation Inc., the university's fund-raising arm. Starcher is now a Supreme Court justice.

In 1996, however, the Supreme Court ordered state officials to open the records of their previously secret economic-development negotiations with private companies.

Lawmakers quickly passed a provision to overturn that part of the decision.

But the 1996 case made several important improvements in how the FOIA is enforced in West Virginia.

First, the ruling greatly narrowed Exemption No. 8, which covers "internal memoranda or letters received or prepared by any public body."

Second, the ruling required - for the first time - government agencies to provide requesters with a list of withheld documents anytime a request is denied.

Over the years, the court has "generally shown a willingness to liberally interpret these statutes and to identify additional sources for public access to official information," Baitty wrote in her 1993 guide.

For example, in a 1986 ruling, the court wrote a detailed definition of the Exemption No. 2, which covers "information of a personal nature."

Under that exemption, personal information may be withheld if its disclosure "would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance."

In the 1986 case, parents sought the medical records of a school bus driver, whose bizarre conduct while driving their children had led to his suspension and ordered psychiatric treatment. After the driver was reinstated, the parents demanded full access to his psychiatric records.

To balance the driver's privacy against the parents' concern for their children, the court ordered that the records be made available to inspection. But only parents of children on the driver's bus could review them, and they could not photocopy the records or otherwise disseminate the information.

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


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