Although the Supreme Court of Appeals of West Virginia’s decision on November 12 in Caperton v. A. T. Massey Coal Co., Inc., 2009 WL 380607 (2009), has received most of the attention, the court issued another decision that day that was also a victory, at least indirectly, for Massey.  

In Associated Press v. Canterbury, 2009 WL 3805646 (2009), the Associated Press had appealed the Circuit Court of Kanawha County’s ruling that it could have access to only five of 13 emails exchanged between Massey chairman Don Blankenship and Supreme Court of Appeals Justice Elliott E. "Spike" Maynard while Maynard was on the court. (He was defeated in the primary in May 2008.) The circuit court determined, after conducting an in camera review, that the remaining eight emails  did not relate to Maynard’s duties as a justice or any other matter that would permit disclosure under West Virginia’s Freedom of Information Act.

In February 2008, the AP submitted a FOIA request to Steve Canterbury, the Supreme Court of Appeals’ administrative director, for all emails between Blankenship and Maynard between January 1, 2006 through February 2008, which included the period that Blankenship and Maynard had vacationed in Monaco while Massey’s first appeal of the $50 million verdict was pending before the court. Canterbury denied the request on the grounds that such disclosures were not subject to disclosure, and the AP sought declaratory and injunctive relief.

Following an evidentiary hearing, the circuit court reviewed in camera the 13 emails during the requested period, and found that five involved Maynard’s campaign for re-election and thus were public records subject to disclosure, while eight were not public records and not subject to disclosure.

Justice Robin Davis, who also wrote the majority opinion in Caperton, wrote the majority opinion, which was joined by Chief Justice Brent Benjamin and Justices Thomas McHugh and Menis Ketchum. Justice Margaret Workman concurred in part and dissented in part

The appeal presented two issues: the procedural issue of the circuit court’s decision to order production of the emails for an in camera review, and the substantive issue of whether the emails are subject to disclosure as public records under FOIA.

Typically, when a public entity claims an exemption from production under FOIA, it provides the trial court with a Vaughn index, named for Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1977), which requires "a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va. Code, 29B-1-4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies." Canterbury submitted a Vaughn index, but the trial court also ordered production of the documents.

The Supreme Court found that the trial court did not abuse its discretion in ordering production of the documents, but pointed out that a court should not conduct an in camera review "as a matter of course," the idea being that the public entity should have the opportunity to justify the exemption from disclosure before the court reviews the documents for itself.

As for the issue of whether the emails are subject to disclosure, the court addressed the AP’s arguments that the emails were public records according to the FOIA definition, or alternatively became public records because of the public interest context in which they were sought.

Although the court had no trouble concluding that an email is a "writing" as defined by FOIA, whether it is a public record was another matter, particularly when the email is personal in nature. After reviewing decisions from several jurisdictions, the court concluded that the majority position was in favor of "nondisclosure of purely personal e-mail communication by a public officer or employee":

We believe the majority position on e-mail communication by public officials or employees is consistent with our FOIA definition of a public record. Therefore, we hold that a "public record" under the West Virginia Freedom of Information Act (FOIA) is defined as "includ[ing] any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body." W. Va. Code § 29B-1-2(4) (1977) Repl. Vol. 2007). Under the clear language of the "public record" definition, a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public’s business, is not a public record subject to disclosure under FOIA.

And here is the court’s holding regarding the emails that the AP sought:

  … we conclude that none of the thirteen e-mails at issue herein constituted a public record under FOIA. 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. Twelve of the e-mails simply provided URL links to privately-operated internet websites that carried news articles Justice Maynard believed Mr. Blankenship would be interested in reading. All twelve of the news articles were written by private entities and were already in the public domain. The thirteenth e-mail did nothing more than provide Mr. Blankenship with the agenda for a meeting being held by a private organization. Consequently, logic dictates that we conclude that not one of the thirteen e-mails was related in any manner to either the conduct of the public business, or to the official duties, responsibilities or obligations of the particular public body, which was in this instance, Justice Maynard. In the final analysis, if we adopted the AP’s position that these e-mails constituted public records, then "a grocery list written by a government employee while 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. [FOIA] was never intended to encompass such documents[.]"

Lastly, the court rejected the AP’s position that the emails were public records because of the public interest context in which they were sought. The circuit court had employed a context-driven analysis in finding that the AP was entitled to five of the emails, but the Supreme Court held that under West Virginia’s FOIA and the majority position of  other courts, only a content-driven analysis was appropriate, and that it was up to the legislature to add "an examination of the record’s context by virtue of the public’s interest in the record" to FOIA’s definition of a public record.

This is one of those cases where I think the dissent understood the issue, or at least the significance of the issue, far better than the majority opinion. The following excerpt sums up why the emails should have been disclosed, regardless of their apparently innocuous content:

In the case at hand, a Justice sitting on the West Virginia Supreme Court of Appeals communicated by e-mail on a somewhat regular basis with a friend who was the Chairman and CEO of a party litigant with a case pending before the Court. With one exception, the literal content of those e-mails did not contain information relating to the conduct of public business. The fact that those e-mails had been sent, however, did contain relevant information. First and foremost, it discloses the existence of a personal relationship between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its first FOIA request, a motion filed by the Plaintiffs in Caperton seeking Justice Maynard’s recusal from that case was pending, the basis of which was his personal relationship with Mr. Blankenship. The fact that the e-mails were sent, albeit on issues unrelated to matters pending before this Court, is clearly relevant to the relationship between Justice Maynard and Mr. Blankenship. Because that relationship was the basis of a motion for recusal, the relationship was itself related to Justice Maynard’s conduct of the public’s business. (Emphasis added.)

Because of the context in which the e-mails in this case were sent, and in light of the legislative intent expressed in West Virginia’s FOIA statute, as well as extensive case law from this Court indicating that our statute is to be given a liberal interpretation in favor of the public’s right to access to information, I would hold that all thirteen of the e-mails at issue were public records, because they contained information relating to the conduct of the public’s business. Put simply, when a judge or justice communicates, via a record that is prepared, owned and retained by a public body, with a party litigant (or someone closely connected therewith) while that party’s case is pending before that judge, such communication necessarily contains information that relates to that judge or justice’s conduct of the public business to the extent that it reveals the nature of the relationship between the two. (Emphasis added.)