Judicial email not public in West Virginia

Personal e-mail messages on government accounts are not public records, even when they are between a judge and a party to a pending case, the West Virginia Supreme Court ruled Nov. 12.

In the 4-1 ruling, the court held that former Supreme Court Chief Justice Elliott "Spike" Maynard could keep private all of the 13 messages he exchanged with Massey Energy Chief Executive Don Blankenship last year. At that time, Massey Energy — one of the largest coal producers in Appalachia — had several cases pending before the court, including the appeal of a $50 million jury verdict.

The Associated Press was initially denied access to the messages under West Virginia’s public records law but won release of at least five of the messages when a lower court ruled they were public records because they dealt with Maynard’s judicial campaign. Last week’s ruling put all of the messages out of the public’s reach.

"We conclude that not one of the 13 e-mails was related in any manner to either the conduct of the public business, or to the official duties, responsibilities or obligations of the particular public body, which was, in this instance, Justice Maynard," wrote Justice Robin Davis in the majority opinion.

The court rejected the AP’s argument that the public interest in the relationship between the judge and the energy executive should be a factor in determining whether the communications are public records. Instead, Davis wrote, it is up to the state legislature to expand the definition of a public record.

“It’s mild to say that we are dismayed by the decision, which goes against the spirit and intent of the law," said Franklin G. Crabtree, executive director of the West Virginia American Civil Liberties Union, which joined the Reporters Committee’s friend-of-the-court brief in the case. "It’s our understanding that state FOIA was written to encourage a transparent government. This decision doesn’t do that.”

“The communication in this dispute was the result of emails on a public account, from a public agency, on public time to a litigant coming before the body [Maynard] served. That factual scenario should have a very difficult time being exempted from any FOI act,” Crabtree added.