Conley reversed, twice, in '01 FOIA denials

By Lawrence Smith | Dec 12, 2008

PARKERSBURG – During her tenure as prosecutor, Ginny Conley unsuccessfully defended herself against not one, but two civil suits in the same year challenging her denial of Freedom of Information Act requests.

PARKERSBURG – During her tenure as prosecutor, Ginny Conley unsuccessfully defended herself against not one, but two civil suits in the same year challenging her denial of Freedom of Information Act requests.

In one high-profile case relating to allegations of sexual misconduct leveled at a former high school football coach, records show the judge found Conley's actions to be so blatant that he ordered her to pay almost $4,000 in attorney fees.

During her second term as prosecutor in 2001, Patrick Doyle Burgy and Ramona Dehart filed separate and unrelated civil suits in Wood Circuit Court seeking declaratory and injunctive relief for the respective FOIAs they filed with, but were denied by, Conley. Though for different reasons, records show both were seeking information on completed criminal investigations her office conducted.

Family seeks answers

Burgy, via his attorney Robert T. Goldenberg, with the Parkersburg law firm of Goldenberg, Goldenberg and Stealey, was first to file a FOIA with Conley on Sept. 14, 2001. In the request, Goldenberg asked for "records in your office pertaining to Kevin Lang Johnson ... who has been charged in the murder of Patrick Shane Burgy, including the hospital records where Johnson has been a patient, and any information about how Johnson acquired a firearm."

The purpose of the request, Goldenberg said, was to use in anticipation of filing a wrongful-death suit against Johnson.

However, in a letter dated Sept. 21, Conley denied Burgy's request.

In her letter, Conley stated "Your request is exempted from disclosure pursuant to W. V. Code 29-1-4(4), due to the fact that the document requested is part of a criminal investigation."

In his motion for declaratory judgment filed on Oct. 11, Goldenberg said the "investigation" effectively came to end a year earlier when on Oct. 20, 2000, Judge George W. Hill Jr. committed Johnson to a mental health facility after he determined Johnson was not competent enough to stand trial for Patrick Shane's murder.

Along with aiding the wrongful-death suit, Goldenberg said release of the requested records would serve the public interest by "making those responsible for Kevin L. Johnson's criminal activities to be held to account for what they have done or failed to do what should have been done."

Also, Goldenberg said disclosure of the records would not result in a "substantial invasion" of Johnson's privacy "since his criminal reputation and lengthy record are well known and available."

According to Goldenberg, Johnson not only multiple drug convictions, but also a conviction stemming from a homicide in Hawaii in 1976.

Judge Jeffrey B. Reed, who previously served as Wood County prosecutor, agreed with Burgy that the records should be released. In his opinion and order dated Nov. 5, Reed said, "the public has a very strong interest in this information because of the need to safeguard members of the general public from people who may be dangerous or who may become dangerous for little or no reason."

Also, Reed said since the murder case received substantial media coverage "at least generally, the release of this information would do no more harm that has already occurred as a result of the proceedings that have occurred in open court concerning a murder charge and the attended publicity surrounding such a charge."

However, because portions of state law mandate confidentiality of psychiatric and psychological records, Reed ordered that Conley deliver the documents Burgy requested to him no later than Nov. 26. At such time, Reed said he would conduct an in camera inspection of the records, and determine which could be released to Burgy.

Sending a message

Three days after Goldenberg filed Burgy's FOIA request, Dehart filed one. In a hand-written request, Dehart asked, "for a copy of the written agreement made between Ginny Conley (the Wood County Prosecutor) and Marshall Burdette."

Prior to his resignation on Aug. 28, 2001, Burdette served as head coach of the Parkersburg High School football team. In his 10-year career as head coach, Burdette compiled a 90-31 record and led the Big Reds to the Class AAA championship in 1999.

According to published reports, Conley received a letter on July 19 from the father of a former player who alleged Burdette made sexual advances on him. In the course of her investigation, Conley found other former players, who were now adults, make similar allegations.

Though the former players were reluctant to testify, they said they would to prevent it from happening to a current student and only if Burdette refused to resign as head coach. To spare both his family and the community the humiliation of public trial, Burdette agreed to resign as head coach, never return to coaching at the high school level or below and, after 31 years in the classroom, permanently surrender his teaching certificate in exchange for Conley not filing criminal charges against him.

Conley's response to Dehart's FOIA request was dated the same day as her reply to Burgy's with identical language. Despite receiving replies at the same time, Dehart, with the assistance of Parkersburg attorney Walt Auvil, filed her complaint for relief eight days before Burgy.

In the complaint, Auvil stated the purpose of the FOIA law enforcement exemption "is to prevent premature disclosure of investigatory materials which might be used in a law enforcement action." However, once Conley entered into the agreement with Burdette the investigation came to an end, and, in effect, making the agreement a public record.

"A release or other litigation settlement document, in which one of the parties is a public body, involving an act or omission of the public body in the public body's official capacity is a 'public record' within the meaning of the Freedom of Information Act."
In addition to asking the Court to compel Conley to turn over a copy of the agreement, Auvil asked that Dehart be awarded attorney fees and court costs "for the wrongful denial of access to the requested records."

Records show that about an hour after he filed the complaint, Auvil was contacted by Conley, who said she would be turning over the agreement. Later that afternoon, it was hand-delivered to Auvil's office.

Since she complied with Dehart's request, Conley filed a motion to dismiss the complaint that Dehart's claim was now moot. In his response on Conley's motion to dismiss, Auvil said while turning over the agreement does make the complaint moot, she should still be sanctioned for forcing Dehart to file suit.

"Neither the necessity for declaratory relief, nor the Plaintiff's claim for attorney's fees and costs has been mooted by the Defendant's belated production of the requested documents," Auvil said. "Most people and organizations do not bother – or cannot afford – to fight an official's decision wrongfully withholding public information."

"Therefore, the only effective means of controlling a public official bent upon improperly withholding information is the declaratory judgement [sic] that such actions are improper and whatever contumely such a declaration may engender," Auvil added.

On Nov. 16, Hill agreed with Auvil that while the "document at issue having been produced, injunctive relief is unnecessary to require the production of the same" Conley's "action in withholding the document sought from the Plaintiff was improper."

Also, Hill said that Conley's rejection of Dehart's "offer to waive attorney's fees and the Defendant's insistence upon further litigation after the requested document was produced caused the bulk of the fees awarded herein to be incurred."

Because of that, Hill ordered Conley to pay Auvil $3,927.47 from her office's budget. Before concluding his order, Hill strongly encouraged Conley to take FOIAs more seriously as "the Court enjoins the Defendant from violation of the Freedom of Information Act in the future."

Wood Circuit Court, Case Nos. 01-C-486 (Burgy) and 01-C-474 (Dehart)

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