The Register-Herald, Beckley, West Virginia

October 19, 2013

High court gets handed easy open record decision

By Nerissa Young

— State and federal governments spend a lot of money trying to keep secrets. Thankfully, some people are still willing to spend money to hold them accountable for violating open record laws.

The state Supreme Court heard arguments this week in the case of The Charleston Gazette v. Col. Timothy S. Pack, superintendent of the West Virginia State Police, on appeal from Kanawha County Circuit Court.

The case involves Freedom Of Information Act requests from Gazette reporter Gary Harki about the process for filing a complaint against a State Police employee and the number and disposition of complaints filed.

It sounds easy enough. A reporter working in the public interest wants to examine how a publicly funded state agency polices itself. It’s necessary to turn as critical an eye on police agencies every once in a while as it is to turn such an eye on the Legislature or any other public body. That is the watchdog role of the news media.

Further, police agencies tend to be more secretive than other agencies because members can believe that because they have search, seizure and arrest powers, they are somehow above the laws they are sworn to uphold.

On May 25, 2010, Harki sent a series of letters asking for the following:

- Information provided to the public regarding the procedure to file complaints against State Police employees.

- A blank complaint form.

- Members of the Internal Review Board, or IRB, appointed by the police superintendent.

- Data used by the IRB to identify employees who are subjects of multiple complaints.

- A copy of the central complaint log that tracks each complaint to its conclusion.

- The annual statistical report of Professional Standards Section’s activities, which is a summary of all complaints and dispositions.

- Quarterly, biannual and annual reports compiled by the IRB with the number of complaints filed by whom against whom with names redacted.

Obviously from what was requested, the material was sought to examine process, not to single out employees of the State Police.

The State Police supplied the public policy information, a blank complaint, a list of IRB members and the annual statistical report of Professional Standards Section’s activities. It claimed the rest was confidential under the personnel file exemption of the state’s open record act.

And Judge Jennifer Bailey was most sympathetic to the State Police in her order. “There is no value in embarrassing individuals because they are alleged to have engaged in some type of misconduct.” She added that the complainer has a right to privacy.

When a person swears out a criminal or civil complaint against another person in the state of West Virginia, the veracity of that complaint is proved in court, not in a sweeping declaration by a judge that the complaint has no merit. Bailey needs to review the Bill of Rights that guarantees a right to swear out a complaint, to have a public accounting of its veracity and for the accused to know the name of the accuser.

She granted the State Police’s request to keep the other documents secret due to exemptions of invasion of privacy, internal memoranda and investigatory information relating to crimes and law enforcement.

While The Gazette’s attorneys provided precedent from around the country to support the claim, luckily for West Virginians the court need look no further than its own case law.

In Child Protection Group v. Cline, 1986, the court determined the medical records of a county school bus driver could be released to parents of children on his bus run who were concerned about his mental state. The driver was just as much a state employee as a trooper.

In Daily Gazette v. Committee on Legal Ethics, 1984, the high court ruled that complaints against lawyers and the disciplinary process for handling those complaints are open records.

In Daily Gazette v. Board of Medicine, 1986, the Supreme Court held the same standard applied to complaints against physicians filed with the state medical board.

The high court traditionally takes the position that the burden is on the secret holder, not the requester, to show why a document should be withheld, and justices took that position before West Virginia had an open record act.

If the court has determined that private attorneys’ and physicians’ disciplinary records are open, it’s a safe bet justices will determine public police officers’ should be, too.

— Young is a Register-Herald columnist and the author of “Mass Communication Law in West Virginia, Second Edition.” E-mail: