Workman: Former justice's e-mails should be released

John O'Brien Nov. 18, 2009, 3:36pm


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court Justice Margaret Workman has filed her dissent in a public records case, arguing that 13 e-mails written by former Justice Spike Maynard should have been released to the public.

Workman's dissent, released Wednesday, disagrees with the other four justices who said Maynard's e-mails to Massey Energy CEO Don Blankenship were private. Their Thursday decision overturned a lower court ruling that released five e-mails to The Associated Press.

"(W)hile the lower court released the five campaign-related e-mails (albeit for the wrong reason, i.e. that they were public records because they related to campaign activity), and the majority has held that none of the 13 e-mails were public records, I would hold that all 13 e-mails at issue should be considered 'public records,' because they contain information relating to the conduct of the public's business, based on the context in which they were written," she said.

"They reflect that there was an ongoing personal relationship between a sitting Supreme Court Justice and the chief corporate officer of a litigant in a major case at a time when the Justice was participating in that case. John Q. Citizen is entitled to have that information and to accord to it whatever weight and meaning he deems appropriate."

Maynard voted in the majority to overturn a $50 million verdict against Massey in 2007, but recused himself in the rehearing because photographs surfaced of him and Blankenship in Monaco.

The two, lifelong friends from Mingo County, said they happened to be vacationing at the same place at the same time.

Twelve of the 13 e-mails sent by Maynard were links to news stories.

"While it is accurate that the substance of the messages was primarily personal in nature, it is that very fact, when viewed in the context of the juxtaposition of Justice Maynard's position as a Supreme Court Justice with his participation in the then-pending litigation involving Mr. Blankenship's companies, which makes them relevant to the conduct of the public's business," Workman wrote.

"The fact that a judicial officer is a close personal associate of a litigant whose case he is hearing is relevant public information."

Justice Robin Davis wrote the majority's opinion.

"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," she 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.

Workman felt the most relevant case cited was the Idaho case that the majority discounted. It held that the context in which a writing is generated is relevant to whether it is a public record.

"In reaching its conclusion, the majority's opinion completely ignores the various ways that the context in which a document is written can both provide information and implicate its designation as a public record," Workman wrote.

"Indeed, the majority limits its discussion of 'context' to whether or not the public's interest in, or fascination with, an issue should be considered in determining its status as a public record."

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