West Virginia Record

Friday, July 19, 2019

Couples sues Nitro for failing to release documents

By Kyla Asbury | Aug 29, 2012

CHARLESTON – A couple is suing the City of Nitro and two city officials after they claim public records they requested under the Freedom of Information Act were not given to them.

Ron King, the Fire Marshal/Code Official for the City of Nitro, and David A. Casebolt, the duly elected and serving Mayor of the City of Nitro, were the city officials named in the suit.

Richard A. Nease and Lorinda J. Nease own an auto body repair shop in Nitro and on June 14, they made a request through their legal counsel directly to King for certain public records, according to a complaint filed Aug. 24 in Kanawha Circuit Court.

The Neases claim according to clear and unambiguous statutory law, the defendants, upon receiving the records request, were required as soon as is practicable but within a maximum of five days, not including weekends or legal holidays, to respond by furnishing copies of the requested information; by advising the person making the request of the time and place at which he or she may inspect and copy the materials; or by denying the request stating in writing the reasons for the denial.

However, contrary to the law, King mailed the Neases' counsel on June 19 a "paltry, single-sentence letter stating only that he '...received the FOIA request...and will be working to compile the documentation you have requested.'"

The Neases claim on July 26, after not hearing further response, they requested the information again and on July 31, King provided some of the requested public records, but advised that the remaining files would have to be manually pulled and copied, which would be done at the Neases expense.

On Aug. 3, the Neases, through their counsel, responded to Casebolt that they were not willing to assume the expenses of any employee of the City associated with pulling or photocopying any documents and reminded the defendants that it is not authorized to charge for an employee's time in searching, pulling or copying documents or other things, according to the suit, but instead the statute authorizes Nitro only to charge the actual photocopying expense actually incurred by the City for the photocopies themselves.

The Neases claim the defendants have knowingly, willfully, maliciously and wrongfully failed and refused to further respond to the request.

The defendants' failure and refusal constitutes a denial of the Neases' right to inspect the public records of the City of Nitro, which violates the Freedom of Information Act, according to the suit.

James A. Dodrill, the Neases' counsel, said the couple had an issue with King three to five years ago, where they were cited for violations of paint fume exhaustion at their auto body repair shop.

"My clients were required to pay thousands of dollars because of the paint fume exhaustion, but when the state fire marshal was brought in and it turned out they shouldn't have been cited for those violations," Dodrill said.

Dodrill said there was also an issue with a storm drain at the Neases place of business that filled in with concrete by the city, and then the Neases were cited for not having a storm drain.

"We wanted to see if anyone else in the city had been treated like my clients have been treated," Dodrill said. "That's why we filed under FOIA for the documents and when the documents weren't released to us, we filed the suit."

Dodrill said it is not right to for the city to charge the Neases, or anyone else, to do their own jobs.

"It is appalling that the local government—when the citizens are already being charged taxes, fees and assessments—wants to charge money for doing their job," Dodrill said.

The Neases are seeking a finding and determination that the defendants knowingly, willfully, maliciously and wrongfully failed and refused to respond, in proper manner and as required by law, to their request or demand to inspect or copy the specified public records; a finding and determination that said acts, failures or refusals to act on the part of the defendants constituted a willful violation or violations of the provisions of West Virginia Code; entry of an appropriate order enjoining the defendant and/or the City of Nitro from withholding the requested public records; and entry of an appropriate order compelling the defendants to immediately produce the requested public records.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 12-C-1716

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