Senators are considering a bill that could result in less public information about the State Resiliency Office, which was established to deal with the emergencies and disasters that occur all too often in West Virginia.
The office already has several exemptions to state open records laws and could have one more if Senate Bill 389 passes.
The bill was on course for passage in the Senate on Monday. But senators laid over the bill on Friday after concerns arose about the public’s access to information about the office. Whether it is changed or not, it could still pass the Senate this week.
“Since this bill was introduced, I’ve had concerns about transparency,” said Senate Minority Leader Stephen Baldwin, D-Greenbrier, who has made an emphasis of oversight to the state’s response to the devastating 2016 flood.
Because the Resiliency Office deals with emergencies and disasters that may sometimes correspond with state security issues, there are several exceptions to open records laws built into the code establishing it.
The law already exempts deliberations by the board that oversees the Resiliency Office from public disclosure. Also already exempt are materials, in any medium, including hard copy and electronic, placed in the custody of the board as a result of any of its duties.
And that also already includes “all records of the board, in the possession of the board, and generated by the board, due to their falling under several exceptions to public disclosure including, but not limited to, that for security or disaster recovery plans and risk assessments.”
The bill under consideration by the Senate could allow yet another exemption.
It strikes prior wording in the law that required meetings of the Resilience Office’s oversight board from being properly noticed. So meetings could take place without the public having much time to catch on.
Emergency responders say that is necessary, though, because action may need to be taken quickly.
“Because of the emergency focus and the fact meetings can be impromptu because of issues arising suddenly, we proposed this strike through,” said Dean Meadows, president of the West Virginia Emergency Council.
He added, “The West Virginia Emergency Management Council has no concerns with this bill.”
ACLU West Virginia often follows proposed legislation affecting transparency for citizens. The organization had not been following this bill, though, said Eli Baumwell, policy director. “It’s definitely not something I like personally,” Baumwell said, “but we don’t have an organizational stand on this bill.”
Over the past few years, there have been some notable problems with the transparency of the Resiliency Office.
The Resiliency Office was created after the deadly June 2016 flood. At one point, while the public was aghast at how little of $150 million in federal relief had been spent, state officials couldn’t figure out who made the call to place the office within the Department of Commerce.
The office was supposed to provide detailed quarterly and annual reports to the Joint Legislative Committee on Flooding quarterly and annually. But at the height of controversy over flood relief, a Senate analyst testified that he did not believe any reports had come in. Both committee co-chairs, as well as committee attorneys and support staff said in interviews they had not seen the reports either.
Two days after that, the reports appeared, The Charleston Gazette-Mail reported.
The Resiliency Office had three meetings just to get started in 2017 and then in 2018 was told to disband further activities, according to reporting by West Virginia Public Broadcasting.
Legislation that passed last year reorganized West Virginia’s agencies that respond to emergencies, creating the Department of Homeland Security. The Resiliency Office moved to that newly-organized agency.
For five minutes last week, the Senate’s Government Organization Committee discussed the current bill that would tweak a few aspects of the Resiliency Office in the law that passed last year.
One main purpose of the new bill is to sew up a gap in the original law, Senator Chandler Swope, R-Mercer, said in the committee meeting.
As originally passed, the State Resiliency Officer was supposed to chair board meetings but was not actually in code as a member of the board. The State Resiliency Officer is Bobby Cales, who earlier worked for the state Adjutant General’s Office and focused on flood relief. This would close that gap in his duties.
“This is just a little bit of cleanup to make the organizational structure improve,” Swope said.
Once the committee passed the bill, it went straight to the Senate rather than being examined by a second committee. It slowed up on Friday when questions arose about transparency.
After speaking with Cales, Baldwin said he recognizes that the committee might sometimes need to discuss sensitive issues. He’s suggesting one change that might at least guarantee more bipartisan oversight.
“After multiple conversations with Director Cales, I understand that the board will be handling sensitive information which needs to remain secure — information on infrastructure, emergency planning, and more, for example, which does need to be confidential and kept from ‘bad actors’ who would seek to expose our weaknesses,” Baldwin said.
“We are pursuing a change to the bill, though, which would make the board non-partisan. Currently, it only has Republican legislators/appointees serving on it. A bipartisan amendment will be introduced to ensure the board is bipartisan. That will ensure a diversity of viewpoints on this vital state board and additional sets of eyes, ensuring the board is serving the public.”