Attorney files lawsuit against AG's office for EPA documents

By Kyla Asbury | Nov 12, 2015

CHARLESTON – A Charleston attorney has filed a lawsuit on behalf an environmental group for documents related to litigation against the EPA.

William DePaulo, on behalf of Keeper of the Mountains, sent the Freedom of Information Act request on Oct. 7 with Attorney General Patrick Morrisey, according to a complaint filed Oct. 22 in Kanawha Circuit Court.

Keeper of the Mountains claims the request was received on Oct. 13 and Morrisey had until Oct. 20 to respond to the request.

After not hearing a timely response, DePaulo filed the lawsuit requesting the documents related to litigation against the EPA, according to the suit.

DePaulo said since the lawsuit was filed, Morrisey's office has produced some of the documents, but not all of them.

"The documents released so far indicate that Morrisey has not been requested by any executive department agency to represent them, as required by W. Va. Code § 5-3-1," DePaulo said. "Specifically, neither the Department of Environmental Protection nor the Governor asked him to file suit."

DePaulo said the attorney general has produced copies of W. Va. Code § 5-3-2 and a Supreme Court of Appeals decision, as responsive to the request for documents pertaining to his authority to file pleadings in the name of the State of West Virginia.

"The AG has declined to produce any other documents 'pertaining to' his authority; I have indicated my belief that other documents exist and must be produced or their withholding justified by a Vaughn index," DePaulo said.

DePaulo was seeking to obtain documents containing written requests from the state Department of Environmental Protection for legal representation before cases were filed by Morrisey against the EPA. He was also attempting to get copies of records pertaining to requests made by the governor, the DEP or any other state officer, board, commissioner or governmental body requesting legal representation relating to the Clean Power Plan that Morrisey’s office has taken legal action over.

The case is assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 15-C-1932

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