West Virginia officials often hesitant to hand over public records

By The Associated Press

01.29.02

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CHARLESTON, W.Va. — Despite a 25-year-old law that says government should be open, a survey of county agencies suggests West Virginians seeking public information are likely to be questioned, denied or, in some cases, harassed.

The findings of Project Access, a cooperative effort by Associated Press member newspapers in consultation with the West Virginia Press Association, show widespread misunderstanding, if not an ignorance, of West Virginia's Freedom of Information Act and its requirements.

Last year, county commissions, clerks, school superintendents and sheriffs were each asked to provide specific documents relating to their office operations.

When survey responses were tallied, sheriff departments scored the worst.

Nearly 50% of the state's 55 county sheriffs ignored written requests for information. By law, once a written request is submitted, officials have five business days to respond, even if it's a denial.

As a result of this poor showing, the West Virginia Sheriff's Association will undertake an education program, said Fayette County Sheriff Bill Laird, the association's vice president.

Other state and county officials say Project Access underscores the need for improvement and renewed educational efforts.

"Obviously, we need to do better," said Dawn Warfield, open-records officer in the state attorney general's office.

Originally passed in 1977 and tweaked since by legislators and state courts, West Virginia's Freedom of Information Act says citizens have a right to "full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees."

In theory, incident reports, employment contracts, expense reports and operating budgets are public documents. In reality, though, that's often not the case.

"If you're not required to withhold it, then give it to somebody," said Warfield, who also conducts seminars for local officials on FOIA compliance.

"What's the harm? It's a public document. It doesn't matter why they want it, it doesn't matter who they are. Just give it to them, it's theirs."

Instead, project representatives left empty-handed more than 40% of the time. Nearly one-quarter of their requests were rejected, and many times officials just ignored the request.

The average county complied with the law just 50% of the time.

County commissions and county clerks performed reasonably well but still denied in-person requests about 20% of the time.

And rejection was often more than a simple "No."

The participants were routinely quizzed about their identity or intentions, even though the law does not require that such information be given. Nevertheless, refusing to provide an identity or reason often riled workers in many offices, with some fearing suspicious behavior in the wake of the Sept. 11 terrorist attacks.

Some officials scoffed at the requests, angrily kicked participants out of the office and even investigated their backgrounds or had them followed out of town.

"The overall feeling was a lot of frustration, especially with the sheriff's department," said Bryan Chambers of The Herald-Dispatch in Huntington. "It was like they just completely tried to intimidate you, almost."

In defense of official denials, Nicholas County Superintendent Gus Penix said it wasn't a problem of "me trying to withhold information. ... It's a problem with the attitude (the representative) came in here with."

Penix complied with the request for his employment contract by sending the information in the mail.

Terry Wimmer, a Pulitzer Prize-winning journalist and Shott Chair of Journalism at West Virginia University's P.I. Reed School of Journalism, oversaw the data-gathering and developed a scoring system to gauge how well the county agencies complied with the information requests.

Agencies received the most points for immediately responding to a request with no questions. Points were subtracted based on an agency's response. The highest possible score was 24; the lowest was negative four.

Lewis County scored the highest with 23, losing one point because an official asked why the requester was seeking the information. Braxton County officials scored just one point to rank last.

The median score was 12.

Compliance among officials varied.

County clerks and commissions were an overwhelming success compared to their peers.

Nearly 80% of clerks and commissions provided expense reports and operating budgets without a formal request letter. Only 5% denied the request, usually by ignoring the letter.

"Our lives are an open book, and we're used to that and understand that," said Wayne County Clerk Bob Pasley, vice president of the state clerks' association. "We have no reason not to provide the public record."

Obtaining copies of employment contracts from school superintendents was more sporadic. Less than 60% of superintendents provided the document without a written request, and 11% ignored the request letter altogether.

While the others had problems, sheriffs were easily the worst offenders.

More than three-fourths of requests for arrest records from the previous week were denied, with many of them ignored. Participants were often questioned by secretaries, deputies and sheriffs.

The Wood County sheriff's department said it wanted to seek legal advice on whether it could provide copies of its arrest logs and accident reports, even though the department routinely sends that information by fax to the Associated Press office in Charleston.

An Ohio County sheriff's clerk told the participant to read about police logs "in the paper" and refused to allow the request letter to be left with the office.

Berkeley County Sheriff Randy Smith's office was one of just 10 to provide the information during the visit.

"We basically use common sense," Smith said. "If you're a public service organization, you certainly shouldn't have anything to hide."

Smith said his employees know the law well because they have to be able to handle requests for matters that are considered confidential, and open access should be a priority.

Fayette County's Laird echoed Smith's sentiment, but his office denied the request it received.

Like many sheriff's departments, Fayette County's activity logs are divided into separate crime categories. People can obtain copies if they have a specific incident in mind, he said.

Also, the investigative nature of a sheriff's work makes it hard to have an open book policy. To ensure the wrong information isn't released, sheriffs have to make sure everyone in the office knows the law.

"In some instances, you have to sort of develop policies that always have your worst employee in mind," Laird said.

Yet he concedes there is no excuse for much of the behavior of his colleagues.

"I think the key is education and awareness as to what those standards are," Laird said. "I think that you all performed a service in what you did. It was a little bit of a wakeup call concerning a deficiency that needs to be looked at and re-examined and cleaned up."

Chris Stadelman, managing editor of the Charleston Daily Mail and president of the West Virginia Associated Press Managing Editors board of directors, said everyone should take on the burden of public accountability and access.

"This isn't just a newspaper thing, it's not just a media thing," Stadelman said. "People that care about how open our government is — and that should be everyone — need to work together with those who are in charge of those documents and figure out the best way to make sure all that information is getting into the hands of people."

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