High court finds referendum signatures are public records

The West Virginia Supreme Court of Appeals ruled Thursday that signatures for a voter referendum are considered public documents subject to disclosure under the state’s freedom of information laws. The decision reversed a lower court's ruling that upheld a county clerk’s denial of a FOIA request by The Shepherdstown Observer newspaper.

The Reporters Committee for Freedom of the Press, along with The Society of Professional Journalists, filed a friend-of-the-court brief in the case urging the appellate court to overturn the initial ruling and highlighting several errors in the lower court’s order. The high court’s opinion largely reflected points made by the two groups in their brief.

The appeal involved an August 2009 case in which the Observer sued to obtain signatures on a petition requesting a vote to overturn a Jefferson County zoning ordinance. Jefferson County Clerk Jennifer Maghan denied the newspaper’s open records request to view the document, arguing the petition did not qualify as a "record" under the state’s definition of a public record.

Jefferson Circuit Judge David Sanders ruled in Maghan’s favor in the original case, writing that because the petition was not “prepared by the public body,” it did not qualify as a public record. In West Virginia, a public record is defined as "any writing containing information in relation to the conduct of the public's business, prepared, owned and retained by a public body."

Writing for the high court, Justice Menis Ketchum reversed Sanders’ ruling, arguing that such documents do not need to actually be prepared by the public body itself in order to be considered a public record. Rather, “a writing in possession of a public body is subject to disclosure under FOIA if it pertains to the conduct of the public’s business.” The court took a firm stance on the issue, adding, “There is no question that the petitions are public records required to be disclosed under our Freedom of Information Act.”

Beyond clarifying the scope of application of the state FOIA, the court said it also sought to resolve a “constitutional issue” present in the circuit court’s ruling. Maghan’s attorney, Assistant Jefferson County Prosecutor Stephanie Grove, argued in her court brief that the petition signatures were equivalent to a secret ballot, thus exempting them from disclosure under the First Amendment-based right to anonymity. Grove claimed that releasing the signatures would have a “chilling effect” on the ability of citizens to petition the government, because “those who signed the petition would be subject to harassment if their names were released.”

In response, Justice Ketchum wrote that the lower court’s conclusion was “misplaced” and argued that a clear distinction exists between the Jefferson County petition and a secret ballot. The appellate court also disagreed that disclosing the names of signatories to the petition was a violation of their First Amendment rights to anonymity.

The high court also stressed the importance of upholding state FOIA laws, arguing that "disclosure of a referendum petition under the West Virginia Freedom of Information Act serves a vital function in protecting the integrity of the electoral process and in promoting transparency and accountability in the ‘conduct of the public’s business.’”

Stephen Skinner, attorney for the Observer, said the results of this case carry great significance for the future of West Virginia’s freedom of information laws.

“I think the court made an important point about FOIA laws in general, that they need to be interpreted towards disclosure rather than finding ways to prevent [it]. It’s totally going to clean up the interpretation in West Virginia, and hopefully elsewhere,” he said.