Reporter sues W.Va. State, president over FOIA requests

CHARLESTON -- A freelance reporter is suing West Virginia State University for failing to satisfy repeated Freedom of Information Act requests.

Hazo W. Carter Jr., the president of West Virginia State University, was also named as a defendant in the suit.

On Aug. 17, 2011, Jay Lawrence Smith read in an article published in the Charleston Daily Mail of a study WVSU commissioned to help determine ways it could raise nearly $26 million in private funds, according to a complaint filed April 9 in Kanawha Circuit Court.

Smith, who is a freelance writer for The West Virginia Record, claims according to the article, WVSU hired Goettler and Associates to conduct the study which, in a report released in Spring 2011 determined WVSU might be able to raise $10 million due to a "lack of urgency and no compelling vision."

The article was published following a no-confidence vote the WVSU faculty passed on Carter's leadership on Aug. 16, 2011, and a week following the no-confidence vote, Carter announced he would be retiring as WVSU's president upon conclusion of the 2011-2012 academic year, according to the suit.

Smith claims the article was the first to acknowledge the existence of the Goettler report.

On Sept. 20, 2011, Oct. 15, 2011, and Nov. 30, 2011, Smith sent a total of three FOIA requests to Carter, requesting a copy of the Goettler report, all preliminary communication between WVSU and Goettler to conduct the fundraising study and all contracts signed between WVSU and Goettler for the study, according to the suit.

Smith claims in December, he received a packet from the defendants' agent, John Berry, that contained a letter dated Nov. 30, 2011, from Berry stating that pursuant to the request, he was enclosing a copy of the executive summary.

The reply from Berry failed to satisfy Smith's multiple FOIA requests as it did not include the full report, all preliminary communication between WVSU and Goettler and the contract they signed to conduct it, according to the suit.

Smith claims on Feb. 18 he sent Berry a letter in response to the Nov. 30, 2011, response explaining that while appreciated, the information was unsatisfactory and when Berry failed to respond, he sent an identical letter dated March 9 and March 23.

Berry responded to Smith's follow-up letter via e-mail and gave no reason why Smith could not have access to the information, but that he was not vice president when the Goettler report was conducted and that he was following orders given by Bruce Walker, the defendants' legal counsel, according to the suit.

Smith claims he contacted Walker, who then deferred responsibility back to Berry.

The defendants failed to provide the information Smith requested, according to the suit.

Smith is seeking for the court to declare that the defendants' refusal to disclose the records requested as unlawful; grant injunctive relief, enjoining the defendants from withholding records without justification and ordering production of records improperly withheld and grant a permanent injunction requiring the defendants to undergo training for better understanding of West Virginia Code and implement a plan for more timely responses to FOIA responses. He is representing himself.

The case has been assigned to Circuit Judge Louis H. Bloom.

Kanawha Circuit Court case number: 12-C-628