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CHARLESTON (AP) — West Virginia’s Legislature has carved out nearly 100 exceptions to the state’s public records and open meetings laws since crafting them three decades ago, a review by The Associated Press has found.

From the results of regulatory probes to the location of endangered wild animals and rare plants, lawmakers have steadily added limits to the public’s right to know. Such additions are necessary, legislators say. Open records advocates disagree.

Similar exemptions have chipped away at open meetings and records laws in other states, eroding their intent, said Charles Davis, executive director of the National Freedom of Information Coalition at the Missouri School of Journalism.

“These laws that are getting 25, 30, 35 years old, they’re slipping,” Davis said. “After 25 or 30 years, they need help, they need reform.”

As with other states, the Watergate scandal helped prompt West Virginia to shore up public confidence in government by passing the Open Governmental Proceedings Act in 1975. The law declares that “the people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know.”

But the law also lists dozens of exceptions when meetings can be closed to the public.

Officials can close a meeting to discuss issues involving national security, criminal investigations, an individual’s mental health or medical records or “to avoid the premature disclosure of an honorary degree, scholarship, prize or similar award.”

And, over the past 32 years, state lawmakers have scattered at least 20 additional exceptions throughout state code that keep the public out of a government meeting. These include meetings held by the Office of Tax Appeals, the Centers for Economic Development and Technology Advancement and, until it became a private company, the malpractice insurance program for physicians.

When the state Freedom of Information Act was passed in 1977, lawmakers said West Virginians were “entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

A survey of state FOI laws released this fall ranked West Virginia 9th nationwide, tied with Rhode Island, on how well it responded to information requests. The nonpartisan Better Government Association, a citizen watchdog group, conducted the survey along with the National Freedom of Information Coalition.

Nebraska and New Jersey topped the rankings, in part for their penalties for agencies that violate the law, but no state earned better than a “B” in its scoring system and 38 received an “F.”

West Virginia received a “D.”

West Virginia’s FOIA law originally only contained eight reasons why a government agency could withhold information from the public. These exemptions mirrored several in the open meetings law, and also covered such areas as trade secrets, internal documents and “test questions, scoring keys and other examination data” used by schools and licensing agencies.

But the number of exemptions doubled in 2003 as lawmakers sought to protect “information that could be used in a terrorist act that would have a detrimental effect on public safety or public health.”

“The reaction to 9/11, and perhaps the reaction to identity theft, seem to be more of a knee-jerk reaction,” said Patrick McGinley, a West Virginia University law professor who has helped state residents pursue FOIA requests in court. “The question in those cases really ought to be, is there a compelling reason to make these things secret.”

One of the original eight exemptions shields “information specifically exempted from disclosure by statute.”

Armed with that provision, legislators have peppered other sections of state code with 68 additional exemptions, the AP’s review shows.

Five of these were approved during this year’s regular legislative session.

“The interesting thing is, they don’t amend the FOIA,” McGinley said. “It appears that some legislators have found this vehicle of enacting exemptions to FOIA in other statutes. That’s a convenient way to undercut FOIA without much public scrutiny.”

The 68 statutory exemptions include nearly two dozen that aim to protect records and data submitted by private business, usually to state regulators. Such information includes underwriting standards developed by insurance companies, securities information kept by the Investment Management Board and drug advertising costs collected by the Pharmaceutical Cost Management Council.

These exemptions also include perhaps the best-known attempt by the Legislature to limit FOIA: the 1997 protections afforded pending deals brokered by the state’s Development Office.

The state Supreme Court had sided with The Charleston Gazette the previous year, after the newspaper sued the agency over information requests targeting a $1 billion pulp and paper mill project proposed for Mason County.

The unanimous ruling limited when a public body could argue when a record was an “internal memoranda” and not subject to release. The court said communication with a private entity should be released unless it contained “advice, opinions and recommendations which reflect a public body’s deliberative, decision-making process.”

Led by then-Gov. Cecil Underwood, lawmakers overrode the court’s ruling by exempting an array of documents received by the development office or other state agency “for the purpose of furnishing assistance to a new or existing business.”

“I don’t think we every really found out what the deal was,” said McGinley, who represented the Gazette’s parent company in the case. “We were still litigating in the circuit court when the Legislature passed that statute.”

Another 16 of the 68 exemptions seek to ensure personal confidentiality. These are found in state laws governing adoption, sex offenders and child abuse and neglect registries, as well as the reporting system for sexually transmitted diseases and the Women’s Right To Know Act, among other areas.

Another dozen exceptions shield investigations by such bodies as the Insurance Commission’s fraud unit, the state Securities Commission and the Legislature’s Commission on Special Investigations.

More recently, lawmakers have added exemptions when they created two corporations slated to spin off into the private sector: the Physicians’ Mutual Insurance Company for malpractice coverage, and the BrickStreet Insurance Co. as the successor to the state-run workers’ compensation system.

Other recent additions have addressed sensitive information, such as the location of wild ginseng plants deemed to have “significant commercial value,” and the location of both animals and plants protected by federal law as endangered.

While he understands the logic of several of the exemptions, such as those to protect rare plants and animals, McGinley said some of the others test FOIA’s original intent.

“You have this wonderful language in the statute about the public’s right to know, and then you see the Legislature setting up these exemptions,” he said. “When you have really broad exemptions, that raises serious questions as to whether the Legislature continues to mean what it said when it enacted FOIA.”

But to lawmakers, these exemptions reflect situations not contemplated by FOIA’s authors.

“We clearly need FOIA, in order for the general public to have the access to what the government is doing at all levels,” said Senate Minority Leader Don Caruth, R-Mercer. “(But) by necessity, the government has to gather certain information. Those insurance companies, as an example, don’t want that information available to competitors.”

Caruth also stood by the post Sept. 11 changes.

“We added a significant list of exemptions, based upon the necessity to protect information which is sensitive to terrorist issues or public security and public defense,” said Caruth, a lawyer. “The reason for that, I think, is fairly evident.”

Some lawmakers expressed surprise at the array of exemptions.

House Judiciary Chairwoman Carrie Webster said FOIA should be interpreted as widely as possible, and exemptions just as narrowly.

“We are never told that there’s that many exemptions scattered throughout the statutes. That concerns me,” said Webster, D-Kanawha.

But the Legislature has also affirmed the reach of these public access laws, including 20 measures to underscore the open meetings act.

Most of these provide access to government bodies such as the Blennerhassett Island Historical State Park Commission, the Beef Industry Council and the panels created to establish county public defender offices.

How often these exemptions stymie efforts to sit in on government meetings or obtain documents from agencies can’t be estimated. Also, state government lacks a central reporting system for recording such requests and the response by public agencies.

None of the agencies that account for the bulk of government information request — the Insurance Commissioner and the cabinet-level departments of Commerce, Environmental Protection and Health and Human Resources — keep such statistics. Those three agencies together estimate that they receive thousands of FOIA requests each year.

Insurance officials said they released records in all but 20 of the 221 requests they’ve fielded this year. Commerce and DEP officials estimate they provide records about 90 percent of the time. ———

On the Net:

Better Government Association: http://www.bettergov.org

National Freedom of Information Coalition http://nfoic.org

AP-CS-11-03-07 1353EDT

 

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