Shockingly, House Bill 3412, sponsored by House Speaker Roger Hanshaw, would remove the legislature from the openness requirements of the state’s Freedom of Information Act (FOIA), in effect ending transparent government activity in the Mountain State as it exists today.
The bill, which has been recommended for passage by the House Rules Committee, would allow the legislature to establish its own rules as to what information and documentation the public is allowed to obtain.
“Enough is enough. We have a right to know what our elected leaders are up to.”
As might be expected, the attempt has kicked off a firestorm of protest and anger from Mountaineers who do not want to see their lawmakers slither under a rock and hide their activities from taxpayers and the press.
“We just want to make sure that these laws provide a legal basis and a framework that government records, meetings and all the doings within the public body of this capitol is available to recognized media outlets in this state,” Doug Skaff, interim executive director of the West Virginia Press Association, told lawmakers.
“We think we owe it to the people of West Virginia to discuss and spread the information that happens under this dome,” he said, referring to the state capitol in Charleston. “We would be supportive as long as it doesn’t restrict the right of the media to do their job.”
But that’s exactly what the bill’s opponents fear the new legislation would do.
“First the Senate limited recording in the chamber. Then, the House did away with public hearings. Now they want to exempt the legislature entirely from open records laws,” said Rusty Williams, advocacy director for the American Civil Liberties Union of West Virginia. “They won’t be satisfied until they’re passing their … agenda entirely in private. Enough is enough. We have a right to know what our elected leaders are up to.”
As it stands now, anyone wanting information under the FOIA can file a request, and the agency receiving the request has five days to respond in writing. Reasonable fees may be charged for researching and copying.
Hanshaw explained: “One of the objectives sought to be achieved by this particular piece of legislation is the clarification of what is and is not a legislative record that can actually be reachable by those who typically seek access to legislative records.
“Our current statute doesn’t differentiate in any way between the legislature, the executive branch and the courts. One way we can do that is if we write a procedure that is specific to the legislature that does make it clear to the public that here’s what is and what is not a public record.”
And who gets to decide that?
If the bill passes, the legislature would write up a bunch of rules specifying what is and is not publicly available information, and people wanting such information would have to file a request under one of those yet-unspecified rules, rather than the certainly more inclusive FOIA.
“The public’s right to know could be reduced to little more than a suggestion.”
Given the recent past history of bureaucrats and politicians bending over backwards to find ways to skirt FOIAs—both federal and state—it’s hard to believe that the members of West Virginia’s legislature will craft a wide-open and transparent set of rules to allow access to everything they are doing.
In fact, if the trend in ducking sunshine laws is any indication, sunshine likely will be getting pretty scarce in West Virginia.
Erasing emails, charging exorbitant amounts of money for research and copying, claiming violation of privacy, limiting the number of copies provided, even inventing a so-called “Glomar response”—by which agencies say they can neither confirm nor deny that requested records exist—are among the tricks bureaucrats and politicians have been using to evade their open records responsibilities.
But making an entire state’s legislature immune to FOIA requests as it sees fit is way over the top—and the widely respected Mountaineer Journal newspaper agrees.
In a blistering editorial, the Journal urged legislators to reject the bill, and wrote: “If this bill passes, the public’s ability to understand and engage with the legislative process will be severely limited. Journalists, citizens and watchdog organizations rely on open access to government records to uncover abuses of power, expose corruption and hold elected officials accountable. HB 3412 would silence those efforts and place the power to control information firmly in the hands of those most invested in keeping the public uninformed.”
The bill, they wrote, “hands legislators the power to decide which documents are made available to the public and which remain hidden behind closed doors. By removing the legislative branch from the reach of FOIA, this bill empowers the Speaker of the House and other legislative leaders to set their own rules regarding public records. With this level of discretion, lawmakers could easily control what the public is allowed to see, from the very decisions that shape our laws to the communications that influence them. The public’s right to know could be reduced to little more than a suggestion.”
The House Rules Committee’s legal counsel said some 14 states have similar laws, including Arkansas, California, Delaware, Georgia and Iowa.
But so what? If your friend Jimmy jumps off a cliff, does that mean you should, too?
There is simply no way that this legislation would encourage government transparency. Quite the opposite, in fact: It would cloak government actions in secrecy and make it virtually impossible for West Virginia taxpayers to find out what their legislators are doing in their name—and with their tax money.
As the Mountaineer Journal wrote: “If allowed to pass, it could signal a shift toward increased secrecy in government, emboldening lawmakers to engage in practices that undermine the principles of transparency and democratic oversight. By allowing the legislature to decide what documents are ‘public,’ the bill effectively hands them the power to hide any information that might be politically inconvenient.”
“I think most lawyers and most lay people think [it’s] a good thing to have an open government,” said Rob Bastress, a West Virginia attorney who has litigated many FOIA lawsuits. “Sunlight is the best disinfectant, right?”
Right.
