Thursday, November 19, 2009

Dissent in West Virginia Court Email Disclosure Case

Justice Workman has posted his dissent in the recent case before the West Virginia Supreme Court in which the majority had restricted public access to emails from another justice to the litigant in the Caperton v. Massey case:

 I agree with the majority's conclusions to this extent:

(1) A trial court may conduct an in camera review of records subject to a request under West Virginia's Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (2007 & Supp. 2009) (“FOIA”).

(2) E-mails are “writings” subject to disclosure under FOIA, and FOIA may be used to obtain nonexempt “public records” of the judicial branch.

(3) A personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public's business, is not a public record. (However, as more fully set forth herein, I do not agree with the majority's conclusion that the messages at issue in this case do not relate to the conduct of the public's business.)

(4) Campaign-related e-mails are not per se subject to disclosure.

But while the lower court released the five campaign-related e-mails (albeit for the wrong reason, i.e. that they were public records because they related to campaign activity), and the majority has held that none of the thirteen e-mails were public records, I would hold that all thirteen e-mails at issue should be considered “public records,” because they contain information relating to the conduct of the public's business, based on the context in which they were written. They reflect that there was an ongoing personal relationship between a sitting Supreme Court Justice and the chief corporate officer of a litigant in a major case at a time when the Justice was participating in that case. John Q. Citizen is entitled to have that information and to accord to it whatever weight and meaning he deems appropriate.

Accordingly, I must respectfully dissent from the majority's conclusion that a determination of whether an e-mail communication is a public record subject to FOIA disclosure is restricted to an analysis of the content of the writing and that such analysis cannot be context-driven. Further, I disagree with the majority's conclusion that the e-mails which are the subject of this case were strictly personal and therefore exempt from public disclosure. While it is accurate that the substance of the messages was primarily personal in nature, it is that very fact, when viewed in the context of the juxtaposition of Justice Maynard's position as a Supreme Court Justice with his participation in the then-pending litigation involving Mr. Blankenship's companies, which makes them relevant to the conduct of the public's business. The fact that a judicial officer is a close personal associate of a litigant whose case he is hearing is relevant public information. (footnotes omitted)
 
(Mike Frisch)

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