That’s a consistent viewpoint I’ve heard from reporters and press advocates about the way to frame coverage: Readers need to know that FOI issues don’t just affect journalists. Since the ruling, some editorial boards throughout West Virginia have been explaining it in that context, pointing out what the new ruling means, and the effects it will have not just on newspapers, but also on the general public. Indeed, the case that led to the high court’s ruling didn’t involve a media organization at all, but rather came when a city charged a husband and wife a $25-per-hour fee in addition to charging for copies of a city ordinance the couple requested, along with public documents related to it. A county judge had ruled the couple shouldn’t have to pay more than what it costs to copy records, and the Supreme Court reversed that decision on appeal.
With the new ruling now in place in West Virginia, any remedy to it will have to come from the legislature, says Don Smith, president of the West Virginia Press Association. He’s been meeting with different people and groups across the state with hopes that his organization can be a leader in building some kind of coalition that gets the attention of lawmakers.
“We’re still developing those ideas,” he told CJR. “We have to address it and see if we can approach the legislature about—whether it’s language—what we need to do to negate the impact of what we see as a very bad Supreme Court decision.”
One potential legislative fix would be for lawmakers to insert a clause in the state FOI statute, or re-write it, to say public bodies may only charge the actual costs of copying records, or explicitly say they can’t charge a fee for searching documents.
“Getting that language into the statute would make the situation even better than it was before the court case, because then there would be no ambiguity,” says the RCFP’s Grannis. Another option could be to add a fee waiver provision for when documents sought are in the public’s interest. About half the states have such a waiver in their FOI laws, Grannis says, and for a handful of states they’re mandatory.
In an April 30 story, the Beckley, West Virginia Register-Herald wrote that WVU law professor Patrick McGinley, who teaches FOI law and has argued FOI cases before the state’s Supreme Court, is urging “everyone who is in opposition to the high court ruling to contact their local elected state officials and let them know how important the issue is to citizens of West Virginia.”
But any lobbying or education campaign to change the law in West Virginia might be met with resistance.
“Local governments have a much stronger lobby at the legislature here than the media does, so it’s unlikely they’re going to go against a ruling that local government is generally happy with,” says Ward, the Gazette reporter.
Asked whether he worries about that, Smith said sometimes you don’t fight a fight because you think you’re going to win, “you fight because it’s the right thing to do.” And that fight, he says, won’t just be to push back against a tangible court ruling, but also a message that’s more abstract and one he’s concerned might have taken hold in West Virginia. There have been efforts in the state to convince the public that open records laws are an invasion of privacy, Smith says. He mentioned, for example, gun rights groups, which had supported a proposal earlier this year to change state law to make concealed-weapon permit data confidential, as it is in many other states. Though that effort stalled in the legislature, multiple county sheriffs have denied newspaper FOI requests asking for the records, with one sheriff even admitting he believed they were public documents while blocking their release.
Trisha O’Connor, who chairs the South Carolina Press Association’s Freedom of Information Committee, knows a little about what it’s like to try and convince a legislature to fix perceived problems in a state’s open records laws. She helped lead the task force a few years ago that hit a wall.
One thing she feels might have made a difference in the process, though, was to put together a citizen’s guide to the state’s Freedom of Information Act and distribute thousands of copies across communities and to citizens’ groups and elected officials.