Kanawha judge sides with Morrisey in Gazette FOIA dispute

By Chris Dickerson | Sep 16, 2015

CHARLESTON – A Kanawha County judge has ruled in favor of West Virginia Attorney General Patrick Morrisey in a newspaper’s request for summary judgment in a FOIA case.

In his final order dated Sept. 14, Kanawha Circuit Judge Charles King granted Morrisey’s office’s Motion for Summary Judgment and denied one by The Daily Gazette Company and The Charleston Gazette.

The Gazette, which recently merged with The Charleston Daily Mail had sought the release of some documents from Morrisey and his office under a Freedom of Information Act request regarding Morrisey’s involvement in a lawsuit against Cardinal Health.

“We are pleased that the court made the right call on this case,” Morrisey told The West Virginia Record in a statement. “As we have consistently stated, we have followed the law and gone much further than the law requires in order to operate with the best ethical practices.

“From the beginning, this case has been politically motivated and an unnecessary burden on this office and a drain of taxpayers’ resources. We are glad we can move on and continue doing the state’s work.”

Morrisey has spent nearly two years blocking the release of the records that the Gazette said could shed light on his role in his office’s lawsuit against drug giant Cardinal Health, a company for which his wife lobbies in Washington, D.C. Morrisey also previously lobbied for a trade group that represents Cardinal Health.

King reviewed eight documents that include nine pages of emails and other documents that Morrisey’s office has fought to block, citing attorney-client privilege, work-product doctrine, deliberative process privilege and/or statutory exemptions under state code regarding internal memoranda.

The Attorney General’s office, under former AG Darrell McGraw, filed the lawsuit against Cardinal Health in 2012 in Boone Circuit Court before he left office. A similar case against a larger group of drug companies also was filed by McGraw’s office. Both suits claimed the drug companies helped fuel Southern West Virginia’s problem with prescription drugs by shipping an excessive number of pain pills to the region.

At a hearing this spring, King had Morrisey’s office turn over the documents, which the judge reviewed in private.

Morrisey said he stepped aside from the Cardinal Health lawsuit when he took office in January 2013 and had former chief deputy Dan Greear managing the case.

In his final order, King describes some of the documents. One includes two emails between Greear and Morrisey regarding his seeking legal guidance from a private attorney if he should become involved in the Cardinal Health lawsuit in the future. There is another email from Greear to Morrisey regarding Greear needing to talk to the state’s outside counsel handling the Cardinal Health case regarding Morrisey ever getting involved with the suit in the future.

A third document detailed what Morrisey’s private attorney would need to provide regarding his possible future involvement in the case. Four more documents are described as “to do lists” regarding discussions with Morrisey’s private attorney.

The final document is an email from Greear to the outside counsel representing the state in both cases regarding discovery strategy and potential litigation decisions. King says Morrisey isn’t copied on the email, and he isn’t mentioned in the email.

King says the first seven documents are not public records under FOIA. And the other document, King says, doesn’t indicate whether Morrisey was or was not involved in the Cardinal Health lawsuit.” He says it also is protected by the deliberative process privilege.

“Accordingly, the court concludes that none of the eight documents are responsive to plaintiff’s FOIA request,” the final order states. “Document 8 … is clearly protected by the state’s attorney-client privilege with its own retained outside counsel.

The other seven documents, King says, are protected by another kind of attorney-client privilege, that being Morrisey’s relationship with his privately retained attorney.

“The state has ‘no obligation to produce information that is not responsive to a FOIA request,’” the final order states, quoting a 2009 state Supreme Court ruling.

Cardinal Health executives donated to Morrisey’s 2012 election campaign, and the company gave money to Morrisey’s inauguration party in early 2013. Morrisey’s office took control of the case when he took office from former AG Darrell McGraw, who originally filed the case alleging Cardinal had helped spawn a prescription drug problem in southern West Virginia by supplying excessive pain medication in the area.

“The Gazette’s lawsuit follows 11 months of refusals by Morrisey to release records that might show whether he took part in decisions about the Cardinal Health case,” a Gazette story from last year states. “The newspaper requested the documents under the state Freedom of Information Act. Morrisey has identified four, and up to eight, ‘potentially responsive’ documents. But his lawyers have repeatedly argued that Morrisey can keep the records secret, citing ‘attorney-client privilege’ and other exemptions under state law.”

The newspaper alleges that because Morrisey has stepped aside from the lawsuit, he can’t use the attorney-client privilege as an excuse to not supply the records.

The newspaper claimed Morrisey’s office uses “boiler-plate” statements when rejecting FOIA requests with “exemptions that make it impossible to determine the true basis for such denial.” It also says Morrisey’s office allows people to visually inspect requested documents “but not retain, photograph or copy” them. It says state law doesn’t permit officials to impose such copying bans.

King’s final order was prepared by Misha Tseytlin, general counsel in the AG’s office who handled the case for the office. Greear left the AG’s office in late 2014 to take a job as chief lawyer for the West Virginia House of Delegates.

Morrisey’s office currently is investigating possible antitrust violations regarding the Gazette’s July merger with the Daily Mail.

Earlier this month, Putnam Circuit Judge Phillip Stowers told the sides to talk things over before coming back to his courtroom for the next hearing about a possible antitrust violation. He told the attorneys for both sides to meet soon to discuss Morrisey’s petition seeking an investigative subpoena looking into possible state Antitrust Act violations and to enjoin the Daily Gazette Company from continuing the merger of the papers.

Stowers told Daily Gazette attorneys they should should decide what parts of the subpoena they would comply with willingly.

“You folks need to get together and see if you can figure this out,” Stowers said near the end of the hour-long hearing Sept. 1 at the Putnam County Judicial Annex.

Morrisey’s office filed the petition Aug. 13, saying they had probable cause to believe July’s merger of the Charleston Gazette and the Charleston Daily Mail newspapers may violate the West Virginia Antitrust Act.

Richard Neely, who is representing the Daily Gazette Company in the case, called Morrisey’s subpoena “harassing.”

“In another case I’m arguing, I believe the parties had done something wrong to my clients,” Neely, a former state Supreme Court justice, said after the hearing. “But I didn’t file a mandamus. I called the other parties and asked them to tell me what’s going on.

“That’s how gentleman lawyers behave. There’s no reason the Attorney General needed to file that petition. They were looking for a fight.

“I offered to file an answer to the interrogatories, but that wasn’t the intent. He filed it to harass Charleston Newspapers. I think the judge saw that and went from there.”

Kanawha Circuit Court case number: 14-C-1455

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