Lawmakers are expanding their rewrite of the state’s Freedom of Information Act, further undermining the law that allows the public to know what their government is doing.
It began with House Speaker Roger Hanshaw, R-Clay, proposing a bill to exempt the Legislature from West Virginia’s public records law. He argued that it is a good idea for lawmakers to write a separate rule to exclude at least some legislative records from public disclosure.
After it narrowly passed the House, the Senate Government Organization Committee did a quick but wholesale rewrite of the bill.
Committee Chair Patricia Rucker, R-Jefferson, called it an effort at “cleanup and updating” of West Virginia’s public records law.
The committee’s only Democrat, Mike Woelfel, D-Cabell, praised Rucker for striking the legislative FOIA exemption from the Senate version and said he was “enthusiastic to support” it.
But, the bill contains a long list of changes that weaken public access to records and undermine the ability to challenge state agency decisions to conceal information.
Here are 4 things West Virginians need to know:
The bill overturns the presumption of openness
For decades, West Virginia’s FOIA said that all government records were presumed to be available to the public, unless they fell within a narrow list of exemptions. This bill deletes that “presumption of public accessibility” language from the statute.
It eliminates the burden of proof on agencies in FOIA litigation
Under West Virginia’s FOIA, citizens can go to court to challenge an agency’s decision to withhold records. Currently, the law puts the burden of proof in those lawsuits on government agency defendants to show why their denial of access should be upheld. This bill eliminates that language.
The legislation expands what agencies can charge for records
West Virginia law currently does not allow agencies to charge fees for time employees spend searching for records to respond to requests. The law has instead only allowed agencies to charge for the actual cost in making copies. This bill allows search fees.
Response times will greatly increase
Instead of having to respond within 5 days, agencies will have 14 days to respond to FOIA requests.
Already, there are often long delays in obtaining records, largely because the current 5-day response time allows a response to simply tell the requester some future time and place when they can get the records.