CHARLESTON – The state’s most-watched television station has won a court battle over a Freedom of Information Act request that was denied by the West Virginia Department of Health and Human Resources.
Gray Media Group Inc., which operates WSAZ-TV, had appealed two Kanawha Circuit Court orders saying the DHHR was not required to disclose an April 2022 termination letter from Secretary Bill Crouch to Deputy Secretary Jeremiah Samples.
On May 23, the state Intermediate Appellate Court reversed and remanded the matter back to Kanawha County for further proceedings.
In April 2022, the DHHR fired Samples. The state Legislature had just passed legislation, which was vetoed by Gov. Jim Justice, to split the agency in two. After his firing, Samples issued a public statement explaining the “DHHR has struggled to make, or event lost, progress in many critical areas.” He also referenced differences with Crouch about the problems the agency faced.
WSAZ submitted a two-part FOIA request for copies of all communications and documentation regarding Samples’ resignation or termination as well as all email communications between Samples and Crouch from December 1, 2021, to April 7, 2022.
The DHHR initially refused to produce any records, saying they were exempt. WSAZ then filed its complaint for declaratory and injunctive relief. Some of the records WSAZ sought eventually were disclosed because of the lawsuit, but the letter from Crouch notifying Samples of his termination and explaining the reasons behind it was not released.
The agency said the letter had “information of a personal nature” and disclosure “would constitute an unreasonable invasion of privacy.” The court appointed attorney R. Scott Long as a special commissioner to review all withheld records, including the letter. In January 2023, he recommended the letter not be disclosed because it was covered by FOIA exemptions. A week later, WSAZ filed its objection. On March 31, 2023, the court ruled the letter was protected.
After the court entered its final order on the matter May 31, 2023, the DHHR produced records to WSAZ in compliance.
“Inadvertently included in the production was an unredacted copy of an unsigned draft of the termination letter,” the ICA ruling states. “In this draft letter, Secretary Crouch sharply criticized Mr. Samples’ performance of his public duties and its adverse effect on the department’s integrity and function.”
When WSAZ told the DHHR about the draft letter, it moved for an order restraining the station from disseminating the draft. The court eventually denied that request, saying once the DHHR sent the draft to WSAZ, the station had a First Amendment right to publish the information. WSAZ did publish the draft letter and included it in news coverage.
Still, the station appealed the orders that held that disclosure of the final version of the termination letter would result in an unreasonable invasion of privacy for Samples.
“Given the circumstances of this case, the privacy interest in non-disclosure is limited at best, such that disclosure would be neither substantial nor serious,” the ICA opinion states. “In reaching this conclusion, we have considered the nature of the information sought, the source of the information, the fact that the record sought is a final version rather than a draft, the position and rank of the public employee whose privacy interests are allegedly invaded, the effect of previous disclosures and our own in camera review of the final version of the termination letter.
“The circuit court erred in failing to consider the various factors which diminished Mr. Samples’ privacy interest and consequently gave too much weight to that interest.”
The ICA opinion, written by Chief Judge Thomas Scarr, notes that the information sought involves the operation of government and the performance of public duties by a public official. It does not involve sensitive personal, medical or health information.
“Although the termination letter at issue does involve some minimal privacy concerns, after weighing all the relevant factors, we conclude that public disclosure does not constitute an unreasonable invasion of privacy and is therefore required by FOIA,” Scarr wrote. “Accordingly, we reverse and remand this matter for further proceedings consistent with this opinion.
“Specifically, the circuit court should direct the department to release the final version of the termination letter to WSAZ and hold a hearing on WSAZ’s request for related attorney fees and costs.”
Gray Media Group was represented by Matthew S. L. Cate and Charles D. Tobin of Ballard Spahr in Washington, D.C., and by Erica M. Baumgras of Flaherty Sensabaugh & Bonnasso in Charleston. The DHHR was represented by Attorney General Patrick Morrisey’s office.
Intermediate Court of Appeals of West Virginia case number 23-ICA-283