West Virginia Record

Thursday, November 21, 2019

Pittsburgh papers sues WVU over FOIA requests about Manchin's daughter

By Chris Dickerson | Apr 15, 2008

MORGANTOWN – The Pittsburgh Post-Gazette has sued West Virginia University for not responding to a series of Freedom of Information Act requests regarding whether Gov. Joe Manchin's daughter fulfilled requirements for a master's degree.

The newspaper filed the suit Tuesday in Monongalia Circuit Court. PG Publishing Company -- through Charleston attorneys Mark Atkinson and John Polak and Toledo, Ohio, attorney Fritz Byers – seek declaratory and injunctive relief.

WVU "has repeatedly failed to respond timely to a series of FOIA requests," "has withheld public records that are responsive to the Post-Gazette's requests and that are not privileged or otherwise exempted from disclosure," "has failed to permit inspection of responsive documents by knowingly and intentionally misapplying statutory exemptions" and has otherwise failed to comply with the FOIA act and law.

The newspaper has been investigating whether Heather Bresch met the requirements to obtain her master's degree in business administration. The complaint says the paper made a call about Bresch's credentials on Oct. 11, 2007, when she was promoted to Chief Operating Officer of Mylan Inc.

The paper first reported on the matter on Dec. 21, 2007. Since then, it and other papers have followed the story. Dec. 21 is also when the paper submitted its first FOIA to WVU.

"Beginning with its response to that request, the University has engaged in a constant and consistent practice of delay, evasion and concealment that it utterly at odds with West Virginia statutory law and the controlling decisions of the West Virginia Supreme Court of Appeals," the complaint states.

In October, the University told a reporter for the Post-Gazette that Bresch did not have an MBA. Days later, according to the complaint, WVU "reversed itself" by saying she had "completed all the requirements for a masters of business administration degree."

On Oct. 22, WVU School of Business Dean R. Stephen Sears wrote to the admissions and records office that Bresch had met the requirements in December 1998. WVU Provost Gerald Lang said the errors in WVU's records had been "appropriately corrected" and that there was "no reason to pursue this matter further."

On Dec. 21, the paper reported that WVU had added six classes to Bresch's academic record and assigned grades for two other classes for which, according to WVU records, Bresch had received "incompletes." The story also said Bresch's paper-based student file was missing, there was no record Bresch had paid for the classes added to her record, and her name did not appear on class rosters for five of the six classes added.

On Jan. 2, Lang named a panel to investigate the matter. The findings of that probe have not been released yet.

After the initial FOIA request, the paper submitted two others. On Jan. 18, it asked for copies of records relating to whether Bresch fulfilled the MBA requirements. WVU produced documents from Lang and Sears, but none from WVU President Mike Garrison. When asked why, WVU told the paper no such documents existed as of Dec. 21.

But the documents submitted the paper did show Garrison had received two e-mails that fell into the time window. WVU said the e-mails collected on Dec. 21 were done so in the afternoon, and Garrison's e-mails were stamped with times that evening.

"The University maintained this position, even though the e-mails responsive to the First Request were not actually produced to the Post-Gazette until Jan. 9, 2008, and even though the University provided other responsive documents that were created after Dec. 21, 2007," the complaint states.

A second FOIA request was dated Jan. 23. WVU responded in a correspondence on Jan. 28, postmarked Jan. 30 and received at the paper on Jan. 31. This FOIA requested landline and cell phone records for Garrison, Chief of Staff Craig Walker for October 2007 and copies of their appointment books from October forward.

WVU's response, according to the complaint, was "vacuous." It said the office had 12 other FOIA requests, and that the process was time-consuming because of privacy issues. The letter said WVU would respond by Feb. 20.

On Feb. 20, WVU Assistant Counsel Shea Browning send another letter, saying again it was time-consuming work and that the response would arrive before March 3.

On March 6, WVU provided the documents. Included were documents that the paper says should have been produced in the first request, including Garrison e-mails.

"The hallmark of this document production is redaction," the complaint states. "Vast swaths of the documents produced are blacked out on the ground that the material, while faling within the Second Request, is exempted from disclosure by the 'internal deliberations' exemption of West Virginia Code.

The paper received a response to its third FOIA request on Feb. 4. After paying a 50-cent per page copy fee, the paper received the documents. The letter also said the search for records was ongoing and that it would be supplemented by Feb. 5. The paper received those documents, after two more delays, on March 6.

The response, according to the paper, was "insufficient." The appointment books were substantially redacted. The cell phone record lacked detail, WVU said it had no landline phone records from Garrison to produce and Walker's phone use was substantially redacted.

The Post-Gazette says WVU failed to meet requirements of the FOIA. It seeks a declaratory judgment saying WVU violated it obligations and requiring WVU to fully comply with the act. It also seeks injunctive relief, enjoining WVU from withholding records without proper justification and ordering the production of records that have been improperly withheld. It also seeks attorney fees and other relief.

The case has not yet been assigned to a judge.

Monongalia Circuit Court case number: 08-C-276

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