What can we do when a state FOI law takes a hit?

West Virginia media are struggling to figure that out after a court ruling that a dissenting justice called "a step backward"

CHARLESTON, SC — A few years ago, the South Carolina Press Association assembled a task force to address how public bodies and officials were thwarting the state’s Freedom of Information Law. The FOI law in South Carolina is a good one, but the problem is agencies and government officials often just ignore some of its provisions. Because there’s no central agency or administrative body that deals with FOI complaints in South Carolina, a reporter or member of the public has to go to court for a remedy when denied access to information.

Before the new task force crafted a plan of action, the Press Association invited several journalists to come tell war stories about how public officials were evading their FOI requests and what might be done about it. Some reporters suggested more lawsuits, but that didn’t seem like a viable option. Lawsuits take time and money, and news organizations spend enough on both just trying to put out a solid product. What came out of the meeting was a commitment by the Press Association to lobby lawmakers on putting enforcement teeth into the current law, and also to urge newspaper editorial boards to get behind it. The association also came up with a promotional campaign to help citizens and public officials better understand the FOI law. A Republican House member who was a former journalist drafted a bill. It died. Twice. Years later the status quo remains.

I thought of this again recently in light of a West Virginia State Supreme Court decision on FOI law that has media organizations in that state struggling with how to respond. On April 10, the court ruled 4-1 that government agencies can charge hourly fees for searching public documents requested under the state’s open records law. Agencies previously were allowed to charge for the actual costs for copying documents, but that was ambiguous and at least one public body was trying to charge more. In a harsh dissent, Justice Brent Benjamin called the court’s majority opinion to allow charging search fees “a step backward from the modern trend to make government more open and accessible,” and he predicted the new ruling would have a “chilling effect” on citizens seeking access to public records.

Benjamin’s opinion is shared by journalists in West Virginia and their organizational advocates.

Ken Ward Jr, the hard-charging investigative reporter at the Charleston Gazette who runs the paper’s Coal Tattoo blog and knows his way around open records requests, worries the ruling will allow government agencies to block small media outlets and common citizens from obtaining records about their government by coming up with ever-larger fees.

He called it “a terrible ruling for government transparency.”

Roughly half the states have laws allowing agencies to charge some kind of fee for search time when processing public records, says Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press, who has studied the law in West Virginia and other states. She says in recent years, though, since the economic downturn, her organization has noticed an anecdotal rise in public entities exercising their right to charge such fees, and also a rise in the costs they’re charging.

But allowing public bodies to charge for search time is “the killer of public record laws,” according David Cuillier, president of the Society of Professional Journalists who researches FOI issues as director of the University of Arizona’s School of Journalism. He considers such fees the equivalent of a poll tax, which in the Jim Crow South kept blacks and poor people from voting.

“This is charging people to participate in their government,” Cuillier says. “Really, what they’ve done is set up a system that excludes the poor from participating in West Virginia government. And I think it’s unconscionable. I think it’s immoral.”

So, there’s plenty of consensus among members of the media and their representatives inside and outside West Virginia that the new ruling will hurt the news gathering efforts of journalists and the general public’s access to information. A harder consensus to reach might be: What to do about it?

“The best tool journalists have is to write about it, to tell the public of how the government is gouging the citizenry on public records,” says Cuillier. “I think that’s by far the most effective tool that journalists have. Because they’re not gouging the press, they’re gouging the public.”

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.

“I wish I had a magic bullet to offer here,” O’Connor says about what else might be done in West Virginia. “I think the problem is people don’t understand what their rights are, and I think that’s obviously what the press is supposed to be doing, is to let people know the information already belongs to them … I wish I had something innovative to offer other than just constant pressure, which is I think what an active press tries to do.”

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Corey Hutchins is CJR's correspondent based in Colorado, where he is also a journalist for The Colorado Independent. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins recently worked on the State Integrity Investigation at the Center for Public Integrity and he has contributed to Slate, The Nation, The Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com. Tags: , , , , , , ,