Justices hear newspaper's FOIA request

By Kelly Holleran | Sep 24, 2008

CHARLESTON – After more than a year of waiting for access to the time sheets of 28 Charleston police officers, the Charleston Gazette soon will learn whether it is permitted to view the documents.

The state Supreme Court heard a case Tuesday involving the city's 2007 denial of a Freedom of Information Act request for police time sheets and activity logs.

The Gazette asked for the data after some Charleston police officers were charged with "double dipping." The term refers to an officer who is on the clock for the city and, at the same time, is working for a different, private organization.

In seeking the documents, the Gazette claims the public has a right to know whether employees, who are paid with tax money, are working for their pay.

But the city argues releasing the documents would violate the previous protective order of two Kanawha County judges – Judge Jennifer Bailey-Walker and Judge Tod Kaufman.

In an earlier lawsuit, in which the Gazette was not a party, the judges ruled the data of six of the 28 officers whose time sheets the Gazette requested could only be released to specified people. The Gazette was not one of those people.

The Gazette argued that since it wasn't even a party in the lawsuit, it should be allowed access to the information.

"That isn't a FOIA issue," said Sean P. McGinley, one of the attorneys for the Gazette. "These are not things that are not public records."

On Aug. 9, 2007, the city asked Kanawha Circuit Court in a declaratory judgment to determine whether it had to release the documents.

Judge James C. Stucky dismissed the declaratory judgment, based on the fact that some of the documents were under seal. Because of this, he said even if he ruled there would still be controversy.

So Charleston once again filed an amended declaratory judgment asking Kanawha Circuit Court if it should release the other 22 documents not under seal.

Stucky again ruled that since some of the documents were under seal, the controversy would still exist. Again, he dismissed the declaratory judgment.

Charleston appealed the decision to the state Supreme Court.

"The city has been placed in that most unenviable of situations, 'damned if it does and damned if it doesn't,'" the brief stated.

Charleston claims it has two options – to turn over the records and face legal actions from the police officers and the Fraternal Order of Police or refuse to turn them over and face legal actions from the Gazette.

It claims since its case hasn't been heard, it is a violation of due process laws that require cases be heard before they are dismissed.

"The problem is the city is caught between the FOP and the Gazette," Ancil G. Ramey, attorney for the city, said during arguments before the Supreme Court. "We want due process. At a minimum this court should demand the circuit court should hear this."

The Gazette, however, did not want the case to be sent back to circuit court, claiming it could be years before the case could be heard.

"The delay may benefit the City, but it will highly prejudice the Public and the Gazette," the paper wrote in its brief.

"If the city gave them the day and hours the officers worked, that wouldn't create a problem, would it?" Maynard asked.

The best way to deal with the issue is to issue a declaratory judgment, Ramey responded.

"Ultimately the parties may have reached an agreement, but the only way to do that is to file a declaratory judgment," he said.

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