Mercer County: Ruling would promote 'useless' litigation

By John O'Brien | Sep 11, 2013

PRINCETON – The Mercer County Commission says ordering it to pay attorneys fees in a Freedom of Information Act dispute would promote “useless” litigation.

On Aug. 12, attorneys for the commission said it is not liable for attorneys fees and costs in a case brought by John Bryan, as the attorney for Tony Henderson. Henderson was the subject of a bench warrant and search warrant in December 2011 and was seeking information on possible evidence gathered during the search.

On May 28, Greenbrier Circuit Judge James Rowe, presiding over the case after each Mercer judge disqualified himself, granted the FOIA request.

However, the Mercer County Commission is arguing it already handed over the requested information, but to a different attorney.

“Plaintiff Henderson is not entitled to attorney fees and costs in that copies of the public records he sought in the suit were furnished prior to the filing of the complaint herein to Henderson, but to a different and prior attorney representing Henderson,” Mercer Prosecuting Attorney Scott A. Ash wrote for the county.

“(A)warding attorney fees and costs in such a situation does not further the statutory purpose of the Freedom of Information Act, but rather prompts useless litigation and needlessly increases the costs of county government.”

Bryan’s complaint was filed Jan. 31 in Mercer Circuit Court. It says the bench warrant for Henderson’s arrest concerned provisions of a child support agreement.

The search warrant allowed sheriff’s deputies to search for evidence of the crime of failure to appear, Bryan says.

The FOIA request, made in December 2012, asked for “all documents, videos, evidence or reports regarding Tony Henderson related to (his divorce proceeding and child support agreement).”

Bryan wrote there was no response to the FOIA request.

On May 28, Rowe’s order told Bryan to submit an affidavit of costs. Bryan’s affidavit detailed 18.5 hours of work worth $2,924.45 in costs.

From the West Virginia Record: Reach John O’Brien at

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