West Virginia high court hears open records case

The West Virginia Supreme Court of Appeals heard oral arguments last Wednesday on whether to overturn a lower court ruling finding that petition signatures for a voter referendum are not public documents and, therefore, not subject to disclosure under the state’s freedom of information laws.

The appeal involves an August 2009 case in which The Shepherdstown 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 prior open records request to view the document, arguing the petition did not qualify under the state’s definition of a public record.

Jefferson Circuit Judge David Sanders ruled in Maghan’s favor in the original case, writing in his court order 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"

On appeal before the high court, Assistant Jefferson County Prosecutor Stephanie Grove, who represented Maghan, argued, “The petitions were not required to be submitted or recorded as public records. Nor was the petition a document used to facilitate the daily business of the governing body.”

Charles Town lawyer Stephen Skinner and West Virginia University law professor Patrick McGinley represented the Observer in the appeal. They argued that the petition signatures are public documents subject to the state’s open records law and that the lower court’s narrow definition of a public record “would have a devastating impact on the public’s right to information about the conduct of the public’s business.”

After oral arguments, Skinner and McGinley said they feel strongly that the appellate court will rule in favor of the newspaper.

When a case goes to oral arguments in a court of last resort, "one can only hope for the reaction that we got,” Skinner said. “It went the way we wanted it to go, both in what we presented and how [the judges] looked at the other side.”

McGinley said he hopes the court will continue its trend of upholding a liberal interpretation of state open records law in this case. “I’m very optimistic about the decision the court is making . . . [It] has generally been very supportive of the state FOIA over the last three decades,” he said.

During oral arguments, Skinner and McGinley maintained that precedent recently handed down by the U.S. Supreme Court in Doe v. Reed, which determined that publicly releasing the names of petition signers calling for a voter referendum is not unconstitutional in all circumstances, strongly applies in this case. The judges largely agreed with this assessment, Skinner said. He expects a decision from the court as early as October, or by the end of the year at the latest.

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, arguing that if upheld, Judge Sanders’ narrow interpretation of state open records law “would have far reaching and devastating effects on West Virginia’s system of open government and government accountability.” The brief also argued that citizens submitting petitions for a voter referendum are acting as legislators, not as private citizens, and therefore are not protected from identification under state open records law.