Shepherdstown paper wants Justices to hear FOIA case

By Steve Korris | Oct 1, 2009

CHARLES TOWN – Citizens have no right to know who signed petitions that a private group circulated to force a public referendum, Jefferson Circuit Judge David Sanders ruled.

CHARLES TOWN – Citizens have no right to know who signed petitions that a private group circulated to force a public referendum, Jefferson Circuit Judge David Sanders ruled.

Sanders ratified a decision of Jefferson County Clerk Jennifer Maghan, who withheld more than 4,000 names from the Shepherdstown Observer.

The Observer petitioned the West Virginia Supreme Court of Appeals for review on Sept. 29, pressing for fast action as the referendum approaches.

Voters will decide on Nov. 7 whether to overturn a new county zoning ordinance.

In the Observer's appeal, Stephen Skinner of Charles Town identified his client as a monthly newspaper published in traditional paper and on the internet.

A press release from the Observer identified Thomas Harding as publisher.

The Supreme Court knows the background, having often intervened in disputes over development of fast growing Jefferson County at the state's eastern end.

Last October, the county commission replaced its zoning ordinance with a new one.

A private citizen group mobilized to repeal it under state law requiring a referendum on a new zoning ordinance if ten percent of voters signed a petition in 90 days.

They reached the goal, even after Maghan rejected hundreds of invalid signatures.

On March 30, the Observer sought copies of the petition under West Virginia's freedom of information act.

Assistant prosecutor Stephanie Grove answered on April 6 that the act didn't apply because the petition didn't meet the definition of a public record.

The act defines public record as "any writing containing information in relation to the conduct of the public's business, prepared, owned and retained by a public body."

Grove wrote, "Obviously the petition was not prepared by the County Commission, nor was it prepared on behalf of the County Commission as would be the case if someone were working at the Commission's employ or at the request of the County Commission."

She wrote that there was no affiliation between the commission and the citizen group, adding that the commission didn't ask the group to undertake the petition drive.

The Observer appealed to circuit court, where Sanders ruled against it on Aug. 21.

"The West Virginia Supreme Court has plainly interpreted the definition contained in the West Virginia Code, finding that a public record must not only relate to the public's business, but also must have been a record that was created by the public body in the first instance," he wrote.

He found that publication of names would have a chilling effect on the ability of citizens to petition the government.

If the Observer suspects fraud, he wrote, it should contact the Secretary of State.

At the Supreme Court, Skinner argues for the Observer that the county's definition of public record would drastically curtail access to important documents.

Signers supported a referendum but took no stand on how they would vote, he wrote.

"Moreover, there is not a scintilla of evidence in the record that the more than 4,000 people who signed the Jefferson County zoning referendum petition faced or would face any form of retaliation for merely advocating that a referendum be held," he wrote.

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