Whose documents are these anyway?

The preamble of the state’s Constitution says that “we the people… seek diligently to promote, preserve and perpetuate government in the state of West Virginia.”  The statement establishes that the government is not separate from the people, but rather an extension of us.

The “we the people” concept becomes harder to maintain as government becomes larger and more diverse.  It’s a natural evolution for government to become more insulated, with the citizens disconnected from the bureaucracy.

An important tool in breaking down those barriers is access.  Open meetings and public records help keep politicians honest while simultaneously contributing to an informed citizenry.

West Virginia helps guarantee public access with the Freedom of Information Act.  The law, passed by the Legislature in 1977, codifies every person’s right to “inspect or copy any public record of a public body in this state,” with a few exceptions.

That part of the law is quite clear.  What is not as self-evident, however, is how much it should cost a citizen to exercise his or her right to that information.

Earlier this month, the West Virginia Supreme Court, in a 4-1 decision, overturned a lower court ruling that blocked the city of Nitro from charging a search fee for FOIA requests.  The court’s decision means public agencies may charge citizens not only for the reproductions, but also for the time it takes a person to make those copies. In the case of Nitro, that’s $25 an hour.

Writing for the majority, Justice Allen Loughry said it was not up to the court to decide the reasonableness of a search fee, only whether the law permits such a fee, which he argues that it does.

Justice Brent Benjamin strongly disagreed.   “I am compelled to dissent to the majority’s legally unsound, illiberal, and cramped construction of the State’s Freedom of Information Act,” Benjamin fumed.  “The amount that a public body may charge for production of records directly affects the disclosure of records.”

It’s understandable that some public agencies want reimbursement for time spent gathering up documents.  Nitro’s decision to charge a service fee came after a request for five years worth of city records concerning storm drainage.

But those records and others belong to the public.  The state’s FOIA law states, “The people insist on remaining informed so that they may retain control over the instruments of government they created.  To that end, the provisions of this article shall be liberally construed (emphasis added) with the view of carrying out the above declaration of public policy.”

In other words, government should bend over backward to make public records available to “we the people.”   As Justice Benjamin wrote in his dissent, “The majority opinion has a chilling effect on citizens who desire access to their government records in order to become informed of the workings of their government.”

 

 





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