Record seeks leave to file amicus brief in AP FOIA suit against state Supreme Court

By Steve Korris | Jul 24, 2008



CHARLESTON – West Virginians can read electronic mail exchanges between judges and private citizens even if the e-mails mix public and private business, The West Virginia Record argues in Kanawha Circuit Court.

The Record sought leave to file a brief July 24 as a "friend of the court" in a suit the Associated Press news service filed against state Court Administrator Steve Canterbury.

The AP wants Canterbury to produce e-mails between Chief Justice Spike Maynard of the Supreme Court of Appeals and Massey Energy president Don Blankenship.

Canterbury has resisted, claiming the e-mails contain private information exempting them from the state Freedom of Information Act.

Kanawha Circuit Judge Duke Bloom ruled at a June 25 hearing that he would read the e-mails in chambers before deciding if the public can read them.

The Record requested permission to submit a brief to Bloom because it too has asked Canterbury for e-mails.

Record attorney Marc Williams of Huntington warned that a blanket exemption for judges' e-mails would frustrate the objectives of the Freedom of Information Act.

Such an exemption would impair the right of citizens to obtain information about public officials and undermine their ability to control their representatives, he wrote.

He wrote that although the national Freedom of Information Act doesn't cover the judicial branch, the West Virginia law expressly includes it.

He argued that state law requires disclosure "even if the requested documents were not directly used in the performance of government functions and do not memorialize the conduct of public business."

He wrote that "disclosure is required if the e-mails contain any information relating to the conduct of such business."

"Even personal information constituting an unreasonable invasion of privacy must be disclosed if clear and convincing evidence demonstrates that the public interest favors disclosure," Williams wrote.

If an e-mail contains public business and personal information, he wrote, a judge must consider redacting its content or limiting its dissemination.

Williams disputed Canterbury's assertion that disclosure would compromise the independence and integrity of the judiciary.

Communications between a Supreme Court Justice and a private citizen are not part of a proper judicial decision making process, he wrote.

An exemption in state law for internal memoranda and letters protects draft opinions and other communications among justices or between them and their clerks, he wrote.

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