Judge says Jefferson zoning petition not a public record

By Lawrence Smith | Aug 27, 2009

CHARLES TOWN - A petition in a Jefferson County zoning case is a private, not a public document, a judge has ruled.

Jefferson Circuit Judge David H. Saunders on Aug. 21 ruled that Jefferson Circuit Clerk Jennifer Maghan could legally withhold the names of 2,000 people who signed a petition regarding a Nov. 7 zoning referendum. The suit was prompted by the Shepherdstown Observer in response to a Freedom of Information Act request it sent Maghan on March 30 seeking disclosure of the names of those wanting to bring a traditional zoning ordinance the Jefferson County Commission approved in October to a vote.

According to court records, though she provided the Observer a certified copy of its "Certification of Valid and Invalid Signatures on the Zoning Petition 2008," Maghan provided no additional details including the petitioners' names. The Observer then petitioned the circuit court to compel Maghan for release of information it requested.

Thomas Harding, the Observer's publisher, believed it was necessary for each name on the petition to be verified separately to ensure they were residents of Jefferson County. However, Saunders ruled since the petition was created by a private organization, Maghan had no duty to release it.

"Because the records requested were not prepared by a public body," Saunders said in his dismissal order, "they do not qualify as public record within the meaning of the Freedom on Information Act."

"It is clear that the petition and signatures do not fall within the definition of public record as the document was not prepared by or on behalf of the public body but rather was prepared by a private citizen group what was neither affiliated with nor under the control of the county commission," Saunders added.

Furthermore, Saunders said if The Observer was concerned about potential voter fraud there are other ways to address that including filing a complaint with the Secretary of State's Office or challenging the commission's certification of the election through a writ of certiorari. Using "a FOIA request for a document that does not meet the definition of a public record should not be used as a substitute for the remedies already available by law."

Both Harding and his attorney, Stephen Skinner, said in separate interviews the Observer intends to appeal Saunders' ruling to the state Supreme Court.

Jefferson Circuit Court, Case No. 09-C-169

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