CHARLESTON – The ACLU of West Virginia says state Division of Corrections and Rehabilitation and Department of Homeland Security officials are trying to hide a set of legislative rules from the public.
The American Civil Liberties Union-West Virginia filed a petition for mandamus February 10 in Kanawha Circuit Court against the DCR, the DHS, DHS Secretary Jeff Sandy and DCR Commissioner William K. Marshall III.
The petition wants the court to order the agencies and officials to comply with the law.
“Democracies are not ruled by secret laws, period,” said Aubrey Sparks, ACLU-WV managing attorney. “The legislative rules promulgated by every state agency in West Virginia are considered law and are therefore open and available to the public under state code.”
Sparks said state departments can maintain non-public policies under certain circumstances, such as those that directly relate to personnel safety, but that this does not apply to legislative rules that carry the force of law.
On Feb. 2, ACLU-WV staff members went to the Secretary of State Mac Warner’s office to review the DCR policy manual and were at first granted access. Upon initial review, it was clear that earlier versions of the rule provided to ACLU-WV by DCR were inaccurate.
The following workday, ACLU-WV returned to resume review of the policies when it learned DHS had asked for permission to remove the documents from the Secretary of State’s Office, a request which was denied.
“What DCR and DHS are doing is lumping regular laws in with those that can be kept from the public eye in order to avoid accountability,” Sparks said.
In the end, access to some of the documents was denied, even though access previously had been granted.
“Respondents have failed to provide accurate copies of this legislative rule to the Secretary of State and now contend that they are the only entity in possession of an accurate copy of their own governing regulations,” the petition states. “As a result, respondents have maintained a legislative rule secret from the public, and to which they have repeatedly, unlawfully, denied petitioner access.”
ACLU-WV says it first requested a copy of the policy manual pursuant on January 10 and received a partial copy in a letter dated January 19. Included with the partial document was a cover letter, indicating the request was being treated as a Freedom of Information Act request and that additional records may have been exempted.
On February 2, ACLU-WV emailed Sarah Daughtery and Brad Douglas at DCR reiterating the exemptions contained no relationship to the request for documents. ACLU-WV sought to confirm that the document received from Respondent DCR was the full text of the policy manual and received no response.
ACLU-WV requests the court issue a rule in mandamus directing the respondents to show cause why the court should not immediately order, as a form of injunctive relief, that they make public the text of its legislative rules as requested. It also seeks attorney fees, court costs and other relief.
ACLU-WV is being represented by Sparks and Nicholas Ward of ACLU-WV. The case has been assigned to Circuit Judge Carrie Webster.
Kanawha Circuit Court case number 23-P-52
