Some wonder why McGraw won't release subpoena contents
Jessica M. Karmasek Aug. 30, 2010, 5:24am
CHARLESTON -- There are those in the legal community who are questioning the refusal by West Virginia Attorney General Darrell McGraw's office to release the contents of federal subpoenas recently received by two of Gov. Joe Manchin's cabinet agencies.
Dave Barnette, an attorney at Jackson Kelly, is one of them.
Barnette, who recently was featured on Hoppy Kercheval's statewide radio show TalkLine, also serves as the general counsel to the West Virginia Broadcasters Association and regularly represents some of the state's largest television and radio stations on an individual basis. He's also a member of the law firm's business department.
Barnette, who shared his knowledge of subpoenas with Kercheval's radio listeners, said at this point he doesn't believe the attorney general's office has a good reason for not releasing the contents of the subpoenas.
The lawyer who is helping the state Department of Administration and Division of Highways comply with the subpoenas recently rejected the Charleston Gazette's request for the documents. The newspaper sought the subpoenas through a request under the West Virginia Freedom of Information Act.
In declining to release the contents, Special Assistant Attorney General Dwane Tinsley -- a Charleston lawyer hired by McGraw's office to assist in the case -- cited federal rules that govern criminal proceedings, according to the Gazette.
Tinsley told the Gazette 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 to the Gazette.
Barnette argues 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 do not extend to witnesses or potential witnesses, he said.
Tinsley's letter, according to the Gazette, did not cite any court order as grounds for withholding the subpoenas.
Barnette also noted that Tinsley has yet to come up with a specific exemption to the state's FOIA.
And he's not so sure there is one.
"I don't see an exemption there that applies," Barnette said. "I would be very curious what exemption he believes it falls under."
Barnette points to a similar case in Illinois years ago in which former Gov. Rod Blagojevich's administration was served with grand jury subpoenas. The newspaper there, he said, also sought access to the documents, and Blagojevich's office tried citing the same federal rule that Tinsley did. In the end, the court upheld the administration had to release the subpoenas.
"I don't see how West Virginia and this situation is any different," Barnette said.
He said not releasing any information about the subpoenas or the documents themselves also just looks bad for the administration.
"I think it's a mistake to not operate in a free and open way," he said. "At the same time, quite understandably, they want to observe some confidentiality and protect their client's rights and not have them be tried in the press.
"But I just think it's bad from a (public relations) standpoint."
Manchin's counsel, Jonathan Deem, would not comment on the matter. He referred all questions to Tinsley, who could not immediately be reached for comment.
In a statement earlier this month, the Manchin administration confirmed the state received two subpoenas. The subpoenas seek documents and were served on the two agencies, not individuals, Tinsley has said.