Justices: Writer can't have access to judicial commission records

By Kyla Asbury | Jan 13, 2015

CHARLESTON – The West Virginia Supreme Court of Appeals has said a freelancer writer doesn't have a right to certain records from the West Virginia Judicial Investigation Commission.

Jay Lawrence Smith appealed Kanawha Circuit Court's Oct. 23, 2013, order granting Teresa Tarr and the WVJIC's motion to dismiss the civil action, according to a memorandum decision issued Jan. 12 by the Supreme Court.

On Sept. 7, 2012, Smith sent a West Virginia Freedom of Information Act request to Tarr and the WVJIC, requesting the total number of judicial ethics complaints filed by year against 27 circuit and family court judges in West Virginia identified by name.

Smith, who previously was a freelance writer for The West Virginia Record, claimed the WVJIC had provided similar information to another individual on Aug. 25, 2012.

On Sept. 24, 2012, the WVJIC denied Smith's FOIA request on the grounds that it lacked a specific timeframe and under the confidentiality requirements, the requested information was confidential, according to the decision.

On Jan. 31, 2013, Smith renewed his Sept. 7, 2012, request and also submitted a request for the same information for seven additional judges. This request was also denied.

On March 12, 2013, Smith filed the present action against WVJIC in Kanawha Circuit Court and requested declaratory and injunctive relief. After a hearing on Sept. 16, 2013, the circuit court granted WVJIC's motion to dismiss.

"Petitioner argues that given our prior holdings in Daily Gazette and Smithers this court must strike down Rule 2.4 as unconstitutional," the decision states. "We disagree and find those cases distinguishable from the present matter."

The circuit court did not err in finding that petitioner’s general requests were confidential and exempted from FOIA disclosure, according to the decision.

"Petitioner could prove no set of facts based upon his complaint that would have entitled him to relief, and he was, thus, not entitled to recover the fees and costs of this litigation," the decision states. "For the foregoing reasons, we find no error in the decision of the circuit court, and its October 23, 2013, order is hereby affirmed."

"This court has considered the briefs and the record on appeal," the decision states. "The facts and legal arguments are adequately presented and the decisional process would not be significantly aided by oral argument."

The court found that there was no substantial question of law and no prejudicial error.

Smith was represented by Michael T. Clifford and Richelle K. Garlow.

W.Va. Supreme Court of Appeals case number: 13-1230

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