China Energy deal has gone quiet, but fight continues over documents

CHARLESTON, W.Va. — More than a year after it was announced, details of West Virginia’s investment agreement with China Energy remain a mystery, but the court system could bring the arrangement to light.

Appalachian Mountain Advocates, a nonprofit law firm, sued this past summer for documents from the West Virginia University Energy Institute, which was heavily involved with the deal.

Appalachian Mountain Advocates sought any agreements West Virginia officials entered into with the China Energy Investment Corporation in 2017, any list of energy projects that West Virginia provided to China Energy and correspondence that Energy Institute staff sent or received that year that included the words “China” and either “energy,” “coal” or “gas.”

West Virginia University filed a motion to dismiss the lawsuit. Appalmad, as it’s shortened, is fighting. Both arguments are to be heard at 1:30 p.m. Monday in the courtroom of Monongalia Circuit Judge Russell Clawges Jr.

West Virginia officials made a splash on Nov. 9, 2017, with the overnight announcement that then-Commerce Secretary Woody Thrasher had been in Beijing to sign an enormous agreement.

The memorandum of understanding was said to be worth up to $83.7 billion.

When Thrasher returned, he and Gov. Jim Justice touted the deal but would not provide details or publicly share the memorandum.

Over the coming months, Thrasher would be forced out and the investment would be called into doubt. 

But the fight to see details of the deal remains on.

WVU wants the judge to dismiss the motion to make the documents public.

The university argues that the documents are protected by economic development privilege.

WVU contends the documents are actually the confidential possessions of the West Virginia Development Office.

WVU was sued because Quingyun Sun of its energy institute is also the governor’s assistant for China affairs at the Development Office.

The university also argues that Appalmad’s request is burdensome and isn’t specific enough.

“Because Plaintiff has refused to narrow its FOIA request, the University would be forced to review, segregate and, as necessary, redact more than 15,000 potentially responsive emails,” wrote lawyers for WVU.

Appalmad claims WVU’s arguments are thin.

It says the university provided no Vaughn index, which is a description of documents being withheld along with justification of non-disclosure — “no affidavit, no testimony, no evidence whatsoever.

“This is simply not the way it is done: a public agency cannot parry the Act’s general disclosure requirement merely by pointing to the Code book.

“Rather it must put forth affirmative, clear and convincing evidence to sustain an exemption.”

Applamad argues that the university provides little support for its claim of an undue burden.

“The court has no way of knowing whether the University is double-counting emails sent to multiple Energy Institute staffers,” lawyers wrote.

Appalmad also contends that exemptions meant for economic development don’t apply to the university.

In part, that’s because the university doesn’t contend its primary responsibility is economic development.

“Because the pleadings alone demonstrate that the University is altogether ineligible for protection under the economic development privilege, judicial economy is best served by closing on that defense now.”

Led to an extreme, Appalmad contends, any entity that wanted to keep a document secret just make sure the state Development Office is looped in.

“Under the University’s theory, the Development Office would become a clearinghouse for records that the government preferred hidden from the public,” wrote lawyers for Appalmad.

“Merely by copying the Development Office — or any of its employees — a state agency could transform a public record subject to the Act into a record ‘received by the Development Office’ and therefore immune to disclosure.”

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