AP sues Supreme Court administrator over FOIA

By Cara Bailey | May 1, 2008


CHARLESTON - The Associated Press has filed a lawsuit over a Freedom of Information Act request against the administrative director of the West Virginia Supreme Court, seeking the phone records and visitor logs of one of the justices.

AP filed the suit April 30 in Kanawha Circuit Court against Steve Canterbury. The AP is seeking all communications from Jan. 1, 2006, to the present between Justice Spike Maynard to any employee of Massey Energy Co., including Don Blankenship and Brenda Magann.

The suit was filed against Canterbury as he has possession and control over the records requested by the AP, which include all e-mails and phone records, including cell phone calls.

The AP also requested visitor logs pertaining to Maynard.

Canterbury has refused requests from AP reporter Lawrence Messina, who first asked for the records Jan. 16, 2008, and two times after.

In a letter to Canterbury, state Supreme Court general counsel J. Kirk Brandfass said in reference to the FOIA, West Virginia Code uses the term "public body" to include "judicial departments," but claims the term refers to the administrative functions of the Supreme Court, not the Justices themselves.

In a statement released by Canterbury, he says releasing the information will set a bad precedent and have long-term ramifications.

"While is it abundantly clear what is at the heart of this particular request, any demand for the disclosure of communications or information of West Virginia Supreme Court Justices has effects well beyond any singular request," Canterbury said. "The disclosure of the requested information sets a bad precedent, is likely unconstitutional, and has long-range ramifications."

Canterbury said the results of this case could affect not only Supreme Court Justices, but also Circuit Judges, Family Court Judges, Juvenile Court Judges, Magistrates and Mental Hygiene Commissioners.

Also in the statement, Canterbury said the judiciary is an independent branch of state government, entitled to conduct its business under rules put in order by the Supreme Court. He said the legislative branch, through the FOIA statue, cannot require the judicial branch of government to disclose the communications of its members.

"The idea that all judicial records are subject to a FOIA request by any person or entity for any reason is clearly contrary to the sound administration of our system of justice," Canterbury said.

However, the AP claims the refusal to disclose the records is unlawful. It seeks injunctive relief seeking the records.

Attorneys Rudolph DiTrapano and Sean P. McGinley are representing the AP. Robert P. Fitzsimmons and Robert J. Fitzsimmons, Daniel J. Guida, Bill Wilmouth and Ancil Ramey are representing Canterbury.

The case has been assigned to Judge Duke Bloom.

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