West Virginia Record

Wednesday, August 21, 2019

Hearing held on motion to dismiss in FOIA case against Department of Commerce

State Court

By Kyla Asbury | Jul 18, 2019

CHARLESTON — A hearing was held Wednesday in a case involving a Freedom of Information Act (FOIA) request filed by a West Virginia attorney in an attempt to find out how RISE program funds were used after the 2016 floods.

The hearing was on a motion to dismiss filed in the case.

WVDOC filed a motion to dismiss the case on June 25, arguing Bren J. Pomponio, an attorney and co-director with Mountain State Justice, failed to give the defendant 30 days notice, as required by West Virginia code when filing a lawsuit against a state agency.

WVDOC claims Pomponio's allegation that the agency did not respond to his FOIA requests is untrue and that it acknowledged receipt of the request and advised him that it would need additional time to respond to the request.

The WVDOC claimed that it also did not refuse the second request.

"While the Defendant concedes that it did not immediately respond to this second FOIA request, at no time did it affirmatively refuse to respond to the Plaintiff's FOIA request," the motion states. 

The defendant stated in the motion it wasn't aware of the lawsuit or that the FOIA requests were still pending until it received communication that the Charleston Gazette-Mail was going to publish an article about the lawsuit.

In the plaintiff's reply, he stated that after the defendant was made aware of the outstanding FOIA requests from the Charleston Gazette-Mail reporter, it forwarded responses to him and, after he and his counsel reviewed the responses, it was determined that the responses were "sufficiently responsive to his requests."

On July 12, the plaintiff's counsel contacted the defendant's counsel and informed her of that determination and suggested that a hearing on the substance of the complaint would be unnecessary. Counsel also further suggested that the only remaining issue to resolve was attorney's fees under the fee-shifting provisions of FOIA.

"Defense counsel expressed her opinion that the thirty (30) day pre-suit notice requirement of W.Va. Code...deprived this Court of jurisdiction to rule on the issue of attorney fees," the reply states. "Notably, defense counsel did not dispute that the Plaintiff was otherwise substantively entitled to attorney fees under WVFOIA."

Pomponio's counsel forwarded an itemized attorney fee accounting on July 15, to which the defendant's counsel responded that she did not want the hearing canceled.

Pomponio argued that the 30-day pre-suit notice does not apply to FOIA matters, according to the reply.

In WVDOC's response to Pomponio's reply, it argued that the litigation could have been avoided had Pomponio provided the pre-suit notice.

"All of the attorney time and expense incurred by Plaintiff could have been completely avoided had he provided the Defendant with pre-suit notice," the response states. "The Plaintiff should not be permitted to turn his unnecessary and unjustified lawsuit *which fatally lacks the jurisdictional pre-suit notice) into a bonanza to divert taxpayer money to an award of attorney fees."

Pomponio filed a FOIA request on March 19, 2018, seeking public records regarding the RISE program, according to a complaint filed June 4 in Kanawha Circuit Court.

Pomponio claims he was never informed that his FOIA request was denied, nor did he receive any response. Pomponio then submitted a second request on Nov. 8, 2018, to which there was also no response.

After June 2016 flooding, the RISE West Virginia program, which the West Virginia Department of Commerce (WVDOC) is responsible for, received nearly $150 million from the U.S. Department of Housing and Urban Development (HUD) to repair and reconstruct single-family homes and rental properties that sustained severe damage.

Pomponio claims the RISE funds were to be made available to approved applicants in the counties that were most severely affected by the flooding, however, upon receiving the funds, problems immediately plagued the program.

In March 2017, WVDOC negotiated a $900,000 contract with Horne LLP to cover a portion of the work required in rebuilding and reconstruction, however, an employee later changed and signed the contract raising the cost to $17 million, according to the suit.

The complaint states that while the West Virginia Purchasing Division and the West Virginia Attorney General were required to approve the significant change, that didn't occur.

Pomponio claims the contract also contained an unexplained discrepancy where it was dated and indicated as effective on Dec. 12, 2016, even though the contract was not signed until March 30, 2017.

"These and other factors led the Governor of West Virginia to suspend all activity under the RISE program, causing significant delay to recovery and rebuilding efforts," the complaint states."

The state then didn't allow the RISE funds to be spent until Feb. 20, 2018, according to the suit.

Pomponio is seeking for the court to declare it unlawful that WVDOC refused to disclose the information requested; issue injunctive relief by enjoining the defendant from withholding without justification; and an order for all information to be disclosed. He is represented by Sean W. Cook.

WVDOC is represented by Senior Deputy Attorney General Kelli D. Talbott.

The case is before Kanawha Circuit Judge Tera Salango.

Kanawha Circuit Court Case number: 19-C-574

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