CHARLESTON – A Charleston attorney wants a judge to compel the State Police to release information regarding how troopers interviewed two of his clients.
State Police Superintendent Jay Smithers is named as a defendant in two Freedom of Information Act lawsuits filed by Michael T. Clifford. In both complaints filed Sept. 5 in Kanawha Circuit Court, Clifford alleges State Police staff improperly used an exemption in the open records law to deny him records as to the conversations between troopers and one client in Lincoln County and another in Mercer following their arrests.
According to the suits, Clifford represented Edward Arthur and James Wissner on their respective criminal charges in Lincoln and Mercer magistrate courts. Arthur was arrested on Nov. 14 and charged with, "multiple felonies," obstruction and simple possession of a controlled substance, and Wissner on July 30 was charged with one count of permitting DUI.
On Feb. 1, Arthur agreed to plead guilty to the obstruction and possession charges in exchange for the prosecutor's office dismissing all the felony charges which are not specified in court records. As part of the plea agreement, the state agreed to recommend he only pay fines and court costs, and forfeit a stolen four-wheeler.
On an unspecified day following his arrest, Wissner agreed to plead guilty to the charge against him. According to the suit, Magistrate Richard D. Fowler fined him $100 plus court costs, and ordered him to pay it within six months.
Clifford on Aug. 7 sent a FOIA request to Smithers asking him to "provide certain items under the West Virginia Open Records law, also known as the Freedom of Information Act." The request asked for "the interview and/or interrogation" of Arthur and Wissner following their arrests to include all "video and/or audio recordings" at the respective detachments and "captured on the in-car recording/surveillance system of the West Virginia State Police cruiser."
Six days later, Clifford says he received a letter from Maj. J.B. Schoolcraft denying the request on the grounds the information he sought "concerns an active criminal investigation." That reason, Clifford avers, "is a ruse, in bad faith, clearly illegal, and contrary to existing law," given the plea agreements Arthur and Wissner entered.
Along with an order compelling release of the information he requested, Clifford seeks recovery of court costs and attorneys fees. He is representing himself in both cases.
They are assigned to judges Louis H. "Duke" Bloom, and Jennifer Bailey.
Kanawha Circuit Court case numbers 12-C-1805 and 1806