Could Better FOIA Response Have Averted the Massey Energy Mine Disaster?

A January 2010 inspection report covering the Massey Energy Upper Big Branch Mine in West Virginia shows a federal safety inspector saw a flawed ventilation system and was told "not to worry about it," reports The Huffington Post. The company was fined $70,000 for an "unwarrantable failure" to follow safety rules. The Charleston Gazette's Ken Ward Jr. first reported about the documents, which weren't released by the Mine Safety and Health Administration (MSHA) until more than a week after the April mine explosion.

The timing leaves journalists wondering if a more transparent MSHA could have averted the mine disaster. The Huffington Post reports how Ellen Smith, the managing editor of the Mine Safety and Health News newsletter, used to praise MSHA for its freedom of information work until the Bush administration used the 9/11 attacks as a reason to clamp down on information. Despite the Obama administration's emphasis on improved transparency, Smith thinks disclosure has gotten worse under Obama.

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Massey Mine Disaster Investigation - Open or Closed to the Public?

The Charleston Gazette would like the federal and state investigations into the Massey Mine Disaster of April 11 to be public hearings. To allow investigative interviews to be conducted in the open, despite the U.S. Mine Safety and Health Administration's historic insistence that the proceedings be conducted behind closed doors. The question remains, will President Barack Obama's open government initiatives have any influence on the proceedings?

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Effort to Revise West Virginia's Public Records Law Underway

West Virginia state lawmakers introduced legislation that would apply the Freedom of Information Act to any record prepared or received by a public office or official if its content or context relates to the public's business.

The effort to revise the state's public records law comes after the state Supreme Court blocked the release of a justice's e-mails with a coal company executive.

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West Virginia Supreme Court to Hear Important FOIA Case

The West Virginia Supreme Court has made two important decisions regarding FOIA cases.

In one, the Court declined to reconsider its decision not to force the release of former Justice Spike Maynard's email exchange with Massey Energy President Don Blankenship.

In the other, the Court will hear a full appeal of a FOIA case from Jefferson County wherein The Shepherdstown Observer is trying to force the release of persons who signed a zoning petition. The case considers a lower court ruling's that allows state and local agencies to withhold documents that were submitted to them.

Read more here and here.

AP Asks West Virginia Supreme Court to Rehear Email Dispute

The Associated Press has filed a request for rehearing of a November ruling that decided a former justice's emails to a coal company executive were not subject to West Virginia's Freedom of Information Act.

The AP's petition asks the Court to reverse its opinion and rehear the case because the state's FOIA law should be liberally applied. "The dreadful message sent by this Court's opinion is that questions about a judge's impartiality are none of the public's business," the AP filing states. "To suggest that such records are non of the public's business is not just wrong factually and legally, it is bad public policy."

For more information, click here.

West Virginia Lawmakers Suggest Revising State FOIA Statute

West Virginia state representative and House Judiciary Chairwoman Carrie Webster says the legislature should revisit the many exemptions and exceptions made to the state's Freedom of Information Act.

Webster's statement comes on the heels of a West Virgnia Supreme Court decision in which 13 emails between former Chief Justice Elliott "Spike" Maynard and Massey Energy CEO Don Blankenship are not public records. In her dissenting opinion, Justice Margaret Workman wrote that the West Virginia Freedom of Information Act should be changed to allow consideration of the the context in which the records are produced when deciding if they qualify as public records.

As originally enacted in 1977, the West Virginia Freedom of Information Act contained eight reasons to withhold information from the public. Since then, more than 75 exemptions have been added to the FOIA statute, according to a 2007 review by The Associated Press.

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A Terrible Setback in West Virginia

The West Virginia Supreme Court ruled that public officials and employees can keep their person emails secret.

The Associated Press had sued to gain access to 13 emails between former Supreme Court Chief Justice Elliott "Spike" Maynard and Massey Energy chief Don Blankenship, but the court ruled 4-1 that none of the emails are public records.

Justice Robin Davis quoted an Arizona Supreme Court decision noting that the definition of a public record "does not encompass documents of a purely private or personal nature."

More here.

West Virginia Supreme Court to Decide How FOI Applies to Judges

The West Virginia Supreme Court will decide the extent to which the state's freedom of information laws applies to judges.  

The case stems from The Associated Press's request for 13 emails between former W.V. Supreme Court Chief Justice Elliot "Spike" Maynard and top coal executive Don Blakenship of Massey Energy.  The Kanawha County Circuit Court ruled only five of the 13 emails need be released.  The Associated Press appealed, arguing all 13 of the emails should be released. 

The Supreme Court's administrator has also appealed, saying emails and correspondence involving the justices are exempt from the state's Freedom of Information Act.  

For more info, click here. 

FOI Case Asks Whether Petition Signatures are Public Records

The Shepherdstown Observer filed an appeal with the West Virginia Supreme Court over its FOI request for the more than 2,000 names of those who signed a zoning referendum petition.  A Jefferson County Circuit Court judge ruled against the paper, keeping the citizens names private.  The West Virginia Supreme Court has not yet said whether it will hear the paper's appeal.

Get more information here.

Newspaper uncovers water sample results via FOIA

FOI at Work!
The Exponent Telegram received copies of the weekly reports on water samples collected by the the city of Clarksburg, W. Va., via FOIA. Although the state doesn't have a standard for the level of total dissolved solids that are allowed in public waterways, the average level being discharged into the West Fork River is 527 parts per million. Pennsylvania has a limit of 500 parts per million. Levels in Clarksburg have reached as high as 852 parts per million.

Although West Virginia has not set a standard for the levels of total dissolved solids allowed in public waterways, the average levels being discharged at Clarksburg’s wastewater plant are higher than those allowed in Pennsylvania, records show.

Plant Superintendent Bill Goodwin said the average level of total dissolved solids being discharged into the West Fork River is 527 parts per million. Pennsylvania allows no more than 500 parts per million.

He said the amount by which Clarksburg exceeds Pennsylvania’s standard is quite small.

More here.

W. Va. Supreme Court to hear appeals in e-mail case involving a former chief justice

The West Virginia Supreme Court will consider the AP's appeal of a Kanawha County Circuit Court ruling that decided only five of 13 requested e-mails from former Chief Justice Elliot "Spike" Maynard would be released, the AP reported. Circuit Judge Duke Bloom had ruled that the e-mails were not released because they were not related to public business. A Supreme Court administrator is appealing this ruling and arguing that e-mail involving justices is exempt from FOIA.

The West Virginia Supreme Court unanimously agreed Thursday to consider The Associated Press' appeal of a ruling on whether the justices' e-mails are subject to the state's Freedom of Information Act.

The AP is appealing a Kanawha County Circuit Court ruling that released just five of 13 e-mails between former Chief Justice Elliot "Spike" Maynard and Massey Energy Chief Executive Don Blankenship.

The AP sought the e-mails after it came to light that Maynard and Blankenship vacationed together in Monaco when cases involving Massey Energy were heading to or pending with the court. Maynard lost his re-election bid last year.

More here.

W. Va. Senate to vote on gun bill this week

The debate over whether the public should have access to concealed-weapons permits continues in West Virginia, The Register-Herald (W.Va.) reported. Although the Senate plans to vote on a bill to prohibit public access, a different piece of legislation is being crafted in the House of Delegates to retain the public's right to know.

A renewed battle over the public’s right to access permits to carry concealed weapons is playing out in both chambers of the West Virginia Legislature this week.

A vote is planned at mid-week in the Senate on SB378 that is designed basically as a reciprocity pact, one that allows West Virginia and other states to recognize each other’s concealed permits when residents travel to and from one another.

Attached to that proposal, however, is a controversial provision that says the public has no right to pry into government records through a Freedom of Information Act request to see just who is allowed to pack a hidden firearm in public.

More here.

W. Va. county clerk withholds names of petition signers

The Shepherdstown Observer is suing the Jefferson County Clerk after it refused to release the names of signatures on a petition related to a zoning change referendum, the West Virginia Record reported. The newspaper requested the documents after learning that about 18 percent of the signatures were deemed invalid.

The Shepherdstown Observer newspaper has filed a lawsuit against the Jefferson County Clerk over her refusal to comply with a Freedom of Information Act request.

The Observer says it wanted to see documents related to a petition gathered to spur a referendum on a zoning change passed by the county commission. The change was passed in Oct. 2008, according to the newspaper's complaint filed Feb. 11.

The petition is allowed by law to challenge the zoning change. Ten-percent of registered voters in the affected area have to sign the petition to prompt the referendum vote.

More here.

W. Va. chemical plant halts briefing on fatal accident

The U.S. Chemical Safety Board planned to brief the public on a 2008 explosion at a chemical plant run by Bayer CropScience; however, those plans changed when plant operators argued that information related to the investigation is considered "sensitive security information," Secrecy News reported. Bayer refers to the Maritime Transportation Security Act, but Secrecy News points out that this act only says certain facility security data "is not required to be disclosed to the public," NOT that disclosure is prohibited. Coast Guard regulations that protect plant information don't apply to the U.S. Chemical Safety Board.

Government safety investigators canceled a public briefing about an August 28, 2008 explosion that killed two persons at a chemical plant in Institute, West Virginia after operators of the plant said that public discussion of the accident could jeopardize "sensitive security information."

Bayer CropScience, which runs the plant, told the U.S. Chemical Safety Board that relevant information about the plant is protected from public disclosure under the terms of the Maritime Transportation Security Act of 2002, as interpreted by U.S. Coast Guard regulations.

The Board, which is an independent federal agency that investigates industrial accidents, canceled the March 19 public meeting while it seeks to evaluate the Bayer secrecy claims. See "Board Cancels Hearing Under Bayer Pressure" by Ken Ward, Jr., The Charleston Gazette, February 25, 2009.

More here.

Dunbar, W. Va., charges $10-an-hour research fees

Two law students at West Virginia University are researching whether Dunbar city officials can legally charge the $10-an-hour research fee for filling FOI requests, in addition to the 35-cent-per-page photocopy charge, The Charleston (W. Va.) Gazette reported. The city said the fee is necessary because staffers are overwhelmed with requests; however, only six FOIA requests were filed since November.

Dunbar city officials have gotten six requests for information under the state Freedom of Information Act since November.

In January, members of Dunbar City Council decided to start charging a $10-an-hour research fee to look up public information to fulfill FOIA requests. City officials said the fee was necessary because employees in the city clerk's office were overwhelmed with requests for information.

City officials also charge 35 cents a page for photocopies.

More here.

EPA originally wanted stricter C8 limits

FOI at Work!

The EPA wanted to limit C8, a toxic chemical, to 0.2 parts per billion but then agreed to a 0.5 limit, the Charleston Gazette reported. The chemical is used by DuPont's Washington Works plant to make nonstick products, such as Teflon. The Gazette secured EPA memos discussing the 0.2 limit from the lawyers of DuPont plant neighbors. The lawyers received the memo from an FOIA request. Officials say the change was due to a calculation error.

Federal government scientists originally sought a much tougher standard for the toxic chemical C8 than was included in a nationwide health advisory issued last month, according to an internal U.S. Environmental Protection Agency memo.

More than three years ago, EPA staffers proposed that the agency rewrite a deal with DuPont Co. to mandate a C8 limit of 0.2 parts per billion, according to the memo.

"EPA's intent is to seek consent through negotiations with DuPont," the memo said. "However, the order could be issued unilaterally if agreement cannot be reached."

More here.

W. Va. Supreme Court to determine whether police time sheets fall under FOIA

From The Herald Dispatch:

West Virginia’s capital city is asking the state Supreme Court to weigh in on a records request from its largest newspaper.

Lawyers for The Charleston Gazette and the city of Charleston are scheduled to argue Tuesday over the city’s 2007 denial of a Freedom of Information Act request for police time sheets and activity logs.

The newspaper sought records for 28 officers after four officers pleaded guilty to charges alleging they worked second paid jobs while on duty.

The city’s denial cited privacy concerns, an ongoing criminal investigation and court orders sealing some records. But the city also sought a Kanawha County Circuit judge’s guidance on the law, and appealed when it was turned down.

More here.

AP wins suit over chief justice's e-mails

A Kanawha County Circuit judge ruled that the West Virginia Supreme Court chief justice's e-mails concerning public business fell under the state FOIA laws. Arguments that the justices don't fall under the FOIA laws because of separation of powers were dismissed.

Five e-mails sent by West Virginia Supreme Court Chief Justice Elliott “Spike” Maynard to Massey Energy chief Don Blankenship show the justice was concerned with a Democratic challenger’s candidacy ahead of a primary that he ultimately lost.

The e-mails were released today, one day after a Kanawha County Circuit judge sided with the Associated Press, which sued the Supreme Court to have the messages released under the state’s Freedom of Information Act.

Judge Duke Bloom ruled yesterday that judicial officers are not exempt from the state’s open-records laws. Bloom’s order gave the Supreme Court 10 days to release the documents.

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An Interesting Case: Judicial E-Mail

West Virginians can read electronic mail exchanges between judges and private citizens even if the e-mails mix public and private business, The West Virginia Record argues in Kanawha Circuit Court.

The Record sought leave to file a brief July 24 as a "friend of the court" in a suit the Associated Press news service filed against state Court Administrator Steve Canterbury.

The AP wants Canterbury to produce e-mails between Chief Justice Spike Maynard of the Supreme Court of Appeals and Massey Energy president Don Blankenship.

Canterbury has resisted, claiming the e-mails contain private information exempting them from the state Freedom of Information Act.

More here.

West Virginia U. Takes the Secrecy Route...

West Virginia University’s Board of Governors held two meetings this week. On Tuesday, the board selected a new interim president and approved his terms of employment as well as an agreement with current WVU president, Mike Garrison. Then, on Wednesday, the board held an emergency meeting and approved a settlement between WVU and former football coach Rich Rodriguez. But none of the actions taken by the board were listed on the meetings’ agendas. Also, the agreements approved were not available for the public to see.

More here.