W.Va. SC says Maynard's e-mails shouldn't have been public

Steve Korris Nov. 12, 2009, 7:24pm


CHARLESTON, W.Va. (Legal Newsline) - Private communications of government employees don't belong to the public, the West Virginia Supreme Court of Appeals decided on Nov. 12.

Four justices agreed that state law doesn't require disclosure of electronic mail between former Justice Spike Maynard and Massey Energy CEO Don Blankenship.

The majority ruled that Kanawha Circuit Judge Louis Bloom committed an error by releasing five of Maynard's e-mails to The Associated Press.

"None of the e-mail's contents involved the official duties, responsibilities or obligations of Justice Maynard as a duly elected member of this Court," Justice Robin Davis wrote.

Davis, Chief Justice Brent Benjamin and justices Thomas McHugh and Menis Ketchum pulled West Virginia's Freedom of Information Act into line with other states.

She quoted an Arizona Supreme Court decision that the definition of public record "does not encompass documents of a purely private or personal nature."

Otherwise, Arizona judges reasoned, "a grocery list written by a government employee at work, a communication to schedule a family dinner, or a child's report card stored in a desk drawer in a government employee's office would be subject to disclosure."

The Supreme Court of Colorado held, "The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly owned computers is insufficient to make the message a public record."

The Florida Supreme Court held that "private documents cannot be deemed public records solely by virtue of their placement on an agency owned computer."

The Tennessee Court of Appeals held that "the legislature did not intend for all records to be available for public perusal."

High courts in Arkansas and Ohio also drew lines between public and private communications of government employees.

According to Davis, Bloom and the Associated Press made a mistake in relying on an Idaho case requiring disclosure.

"Idaho's expansive definition of a public record simply goes beyond what our Legislature has permitted," Davis wrote.

Justice Margaret Workman dissented, with an opinion to follow.

The Associated Press sued court administrator Steve Canterbury last year after he denied a request for 26 months of e-mails between Maynard and Blankenship.

At a hearing in June 2008, Bloom ordered Canterbury to produce 13 e-mails so Bloom could read them in chambers.

Bloom read them and declared five public, finding they involved Maynard's campaign for re-election.

He declared eight private and wrote, "In no way do these e-mails contain information related to the affairs of government, Justice Maynard's official acts as a state officer, or the conduct of the public's business."

Both sides appealed, with AP seeking all 13 and Canterbury opposing any release.

Maynard didn't win another term, but Canterbury won the e-mail dispute.

Davis wrote that "none of the 13 e-mails at issue herein constituted a public record" under the freedom of information act.

She wrote that in 12, Maynard simply provided links to news in the public domain.

The 13th provided Blankenship with an agenda for a private meeting, she wrote.

Davis discarded AP's theory that statewide and national interest in Maynard and Blankenship required special treatment.

"Simply, put, we are not at liberty to rewrite FOIA's definition of a public record to include a context driven analysis," she wrote.

Canterbury greeted the decision as good news for judges.

"I'm sure they have had a few thoughts about e-mails being FOIA'd by former employees, disgruntled inmates and others," he said. "Because e-mails are not a formal written document, people are not as cautious about using slang or even expletives. ...

"The opinion speaks for itself. It's important to note that even though my name was on the case, it had nothing to do with me personally or, I presume, professionally. This was about whether West Virginia was going to be in concert with other states and the federal government about using FOIA to access judges' e-mails."

He said he didn't feel vindicated, because vindication implies emotion.

"This is more of a philosophical question," he said. "I feel good that my thoughts have been confirmed. I don't see it as winning and losing. I just see it as a development on a court issue."

Rudolph DiTrapano and Sean McGinley of Charleston represented AP, along with Patrick McGinley of Morgantown.

Ancil Ramey of Charleston, William Wilmoth and Robert Fitzsimmons of Wheeling, and Daniel Guida of Weirton represented Canterbury.

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