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Crime and (no) punishment

THE STATE law that requires public officials to share public information also threatens fines and jail time for those who break the law.

No sheriff, county clerk, county commissioner or other public official has ever suffered criminal penalties.

That's because it's too hard to prosecute, said Dawn Warfield, director of the Appellate Division and Contract Section of the state Attorney General's office.

"It requires proof of criminal intent, an intentional violation of the law," she said.

Public officials who deny residents' requests for information can always cry ignorance. If they say they didn't know the information was supposed to be open to public view, a prosecutor could have trouble proving they did know.

In October, news reporters around the state visited each of the 55 county courthouses to see which county officials followed the law. They asked for the same public information in each county. Some counties followed the law with no problem. Others asked for identification or reasons for the information, which state law does not require. Some relented after several requests. Others just refused to share.

Those commissioners, clerks, sheriffs and superintendents could be guilty of misdemeanors, according to Chapter 29B of the state code. They could be fined $200 to $1,000 or be jailed for as long as 20 days or both - if you could find someone to prosecute them.

But you probably won't.

In Greenbrier County, where elected officials are among the worst to violate the Freedom of Information Act, prosecutor Kevin Hanson said no one has ever asked him to prosecute a violator.

Hanson said attorney-client confidentiality prevented him from saying whether he had ever advised any public officials on how to answer a request for information.

But Hanson was not sure if the relevant law was state or federal.

"I haven't read it," he said.

In 1997, former Kanawha County prosecutor Bill Forbes wrote a letter to Sheriff David Tucker, advising him of the criminal penalties of intentionally withholding information. Tucker had created a new policy to restrict requests for information in his office. The policy was later changed and the information was released.

That exchange was not entirely about protecting the public's right to see public documents. Tucker and Forbes belong to rival Democratic factions in the county.

In November, Wood County Circuit Judge George W. Hill ordered county prosecutor Ginny Conley to share information about former Parkersburg High School Football Coach Marshall Burdette.

The court also ordered Conley's office to pay more than $3,000 in attorney fees for initially denying a request for a copy of an agreement involving Burdette.

Burdette resigned and agreed to never teach or to coach youth sports again after Conley informed him that former football players had accused him of improper sexual conduct.

The judge found Conley acted improperly in withholding the agreement from public view.

Statewide, the most frequent offenders of the Freedom of Information Act were county sheriffs.

Law enforcement officials have a particularly difficult time understanding that the Freedom of Information Act applies to them, Warfield said.

Law enforcement agencies used to have a blanket exemption. Many operate as if they still do. Police do not have to share details that might hamper an investigation, for example. But they are required to share incident reports.

"They haven't really gotten the message. It has long been decided in West Virginia that incident reports are public documents," Warfield said.

But residents have a hard time getting them. Residents who can afford a lawyer get better results.

"We hear from those private citizens every day that people say ‘Who are you?' and ‘Why do you want this?'"

When someone sues for access to records, courts are usually responsive, said Charleston lawyer Jason Huber, who has argued several FOIA cases.

Law requires public officials to err on the side of releasing information. Courts pay attention to that part, Huber said.

"That's not to say I haven't had my bad results," he said. He sued the Charleston Police Department for the results of an internal affairs investigation of a police officer. In 1996, a white officer was accused of assaulting and pepper-spraying then 76-year-old Laura Manns, who is black.

He won in circuit court, but the decision was overturned by the state Supreme Court.

The court left the door open for a more narrowly defined request, which might have been successful, Huber said.

The law gives people who are denied access to records the ability to go to circuit court and sue.

That enforcement system is flawed, Warfield said.

"A private citizen has to go out at their own expense and bring a suit in court," she said. The whole time, the city or county is spending taxpayer money to fight it.

When the suit is successful, the government pays the court costs and often the legal fees for both sides. All the public official has to give up are the public documents.

That's because the law does not provide for civil penalties, such as a fine, for public officials who violate the Freedom of Information Act.

Because no one pursues the criminal penalties, the offenders suffer no consequences.

"If the government has to pay the cost, what do you have to lose?" Warfield said.

Pat McGinley, a WVU law professor who teaches public records law, said the state should change the law. Public officials should have to pay for public access lawsuits out of their own pockets.

After The Charleston Gazette successfully filed a lawsuit to open records of the West Virginia Development Office, the agency paid the newspaper's more than $100,000 legal bill. The money went to McGinley and his law partner, Suzanne Weise, who represented the newspaper.

"There is no reason that the public ought to have to pay for these expenses and cover the cost of public officials not knowing the law," McGinley said. "If government officials had to pay themselves, it would make them be more aware of the law, and more likely to err on the side of disclosure."

The law also says freedom of information cases will be heard first, except for cases the court considers of greater importance.

But courts don't always follow this part of the law.

In the Development Office case, Kanawha Circuit Judge Irene Berger refused to give the case priority when setting the court schedule. The Supreme Court refused to force the circuit court to schedule a priority hearing.

Public officials who claim ignorance of the law have plenty of opportunities to learn the rules.

The Attorney General's office offers training to public officials and their staff on how to read and follow the state's Freedom of Information Act. Not everyone takes advantage of it.

The Attorney General's office also offers opinions on the law that can help small governments with small budgets.

"The Attorney General's office always encourages public officials to share information, unless there is a reason in law for not giving it out," Warfield said.

"The Attorney General's position is the public has a right to know what's going on. Our rule is, ‘When in doubt, give it out.'"

Even the attorney general denies information sometimes.

The attorney general refused to share tobacco litigation documents with the U.S. Chamber of Commerce and the U.S. Chamber Institute for Legal Reform. The office cited attorney-client privilege.

That office is also called on to represent agencies that deny information, such as the state Development Office.

Staff writer Ken Ward Jr. contributed to this story.

To contact staff writer Dawn Miller, use e-mail or call 348-5117.


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