On the second to last day to introduce bills, House Speaker Roger Hanshaw dropped a proposal to exempt the Legislature from West Virginia’s broad and disclosure-friendly Freedom of Information Act. Instead of following the public records law that governs all other state and local officials in West Virginia, lawmakers would write a separate rule.
Hanshaw’s press spokesperson, Ann Ali, told reporters in prepared statements that the intent was for all records currently available to the public to remain so. But Hanshaw’s own public explanation outlined his plan to allow legislators to keep some key documents secret.
Here’s what West Virginians need to know.
What does the current law say?
West Virginia’s Freedom of Information Act applies to all state officials within the executive, legislative and judicial branches of state government. It also covers every local government outpost you can imagine: city councils, school boards, county commissions, and on and on.
Under the law, these government actors must release to West Virginians “any writing containing information” that “relates to the conduct of the public’s business.” Only certain of these “public records” may be kept secret.
It’s an expansive law, intended to ensure citizens have “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”
In 1977, lawmakers declared that the disclosure provisions should be liberally construed, and in ruling after ruling for several decades, the state Supreme Court has upheld that broad public right to know.
What does the Republican leadership’s bill do?
The legislation being rushed through by the GOP supermajority would remove the Legislature from the list of government agencies subject to this pro-disclosure statute. Instead, lawmakers would at some time in the future – it’s not clear when or exactly how this would be done — write separate “rules regulating the disclosure of public records.”
Hanshaw isn’t the only GOP leader sponsoring the bill. Listed alongside him are Majority Leader Pat McGeehan, Majority Whip Marty Gearhart, Deputy Speaker David Kelly, Finance Chair Vernon Criss, Finance Vice Chair Clay Riley, Education Chair Joe Ellington, Government Organization Chair Chris Phillips, and Health and Human Services Chair Evan Worrell.
What does Speaker Hanshaw say this is all about?
Hanshaw said on Wednesday that the bill is merely an effort to clear up confusion about what records members of the public can expect to obtain from the Legislature. He said FOIA requests are asking for things that the law doesn’t really require lawmakers to release to their constituents.
“So, for example, we are often in receipt of requests for things that simply don’t come within the scope of the statute. Things like draft bills prepared by the staff of the Legislature that are never introduced. Draft legislation prepared by members that is never introduced. Drafts of amendments that are never put before a committee.
“One of the objectives sought to be achieved by this particular piece of legislation is the clarification of what is and what is not a legislative record that can actually be reachable by those who seek simply access to legislative records,” Hanshaw said, explaining his bill to the House Rules Committee on Wednesday.
Hanshaw complained that the current law “doesn’t differentiate in any way between the Legislature, the executive branch and the courts,” and he opined that it should.
“We are not the executive branch, and the kinds of records kept in the transaction of legislative business are really not akin to the same kind of records kept by executive branch agencies. And the current Freedom of Information Act statute is tailored more toward the executive branch and is more easily applicable in that context than it is in the course of our work, where there are effectively 134 independent elected officials, as opposed to the executive branch, where there is a single elected official, whose decision-making process is quite different than our 134.”
What don’t we know that is important?
Hanshaw said the specific example he offers — draft legislation — is already exempt from disclosure.
This isn’t entirely correct. West Virginia’s FOIA contains no broad exemption for any document that is in draft form. The exemption that does sometimes apply is much more narrow, and only allows to be kept secret certain information that is “predecisional” and reflects an agency’s “internal deliberative process.” The Supreme Court spelled that out clearly nearly 30 years ago in a case called Daily Gazette Co. v. Development Office.
And Hanshaw isn’t providing much more detail about what he envisions should be different about what “legislative records” should be made public, compared to the material that other branches of state government – not to mention thousands of local officials around the state – must hand over to citizens who ask for them. Neither Hanshaw, nor his spokesperson, Ann Ali, responded to questions for this story.
For example, the speaker talks about several kinds of “draft bills.” But what about draft bills that are circulating back and forth between lawmakers, legislative staff and lobbyists? Will the eventual rule on legislative records keep those public, as they are now? Or will West Virginians be left to wonder what influence special interest groups are wielding?
What about the short, five-day time limit for FOIA responses under West Virginia’s law? Given the crush of work during a legislative session, it might seem reasonable to extend that, to help overworked government staff. But doing that could easily mean that crucial information won’t come out publicly until it’s too late to impact what happens while lawmakers are still in town.
What about all manner of other records – text messages, emails, memos, appointment calendars – that service-minded West Virginians might not realize they will have to cough up if they choose to become citizen legislators?
This session, some basic pieces of information the public might expect to get aren’t always being made available. Even when the House voted to do away entirely with public hearings, it couldn’t muster up the transparency to do so with a recorded vote.
One thing is for sure. Lawmakers from both parties have been very willing to chip away at the public’s right to know. After the Gazette won its lawsuit against the Development Office — opening important records about tax breaks, environmental rollbacks and anti-union activities to the public — the then-Democratic majority in the Legislature moved quickly to overturn that ruling.
Back then, the state’s public records law listed only eight categories of documents exempt from the law’s disclosure mandate. Today, there are 23.