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West Virginia House Republicans are rewriting how the state’s Freedom of Information Act applies to themselves.
They want to exempt the Legislature from the state’s public record law. Instead, lawmakers would write “rules regulating the disclosure of public records.”
The existing law states: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
House Speaker Roger Hanshaw, R-Clay, said in a statement provided by spokesperson Ann Ali that the bill is part of a larger effort “so the Legislature can tell itself what to do in its own rules as opposed to cluttering up the law.”
He intends for all records currently available to the public to remain available to the public, according to the statement. Right now, those records can include emails that lawmakers exchange with lobbyists about policies, letters from constituents or travel expense documents.
“I think most lawyers and most lay people think that’s a good thing to have an open government,” said Rob Bastress, a Charleston-area attorney who has litigated multiple FOIA lawsuits. “Sunlight is the best disinfectant, right?”
He said he’s concerned about the Legislature exempting itself from the law, because a new rule could easily be changed.
“That overarching policy is a good one. Transitioning that to a rule, I think, should not be done lightly,” Bastress said.
Hanshaw introduced HB 3412 just before the last day a delegate can submit a bill during the 60-day session.
It was sent to the House Rules Committee, which decides which bills will be heard on the floor and the order they’ll come in. The committee is chaired by the speaker and is made up of his leadership team. All cosponsors of the bill also sit on the committee.
On Wednesday, the committee met just a couple hours after the agenda for the meeting was published online.
Hanshaw said the intention of the bill is to clarify for the public what is and is not a public record. He said the current law is written with executive agencies in mind.
“The kinds of records kept in the transaction of legislative business are really not akin to the same kind of records kept by executive branch agencies,” Hanshaw said.
A committee attorney noted that at least 13 other states have “carve outs” for their legislatures from the Freedom of Information Act. Hanshaw said what he is proposing is not like that.
“I actually never will use the term carve out, because that’s not the intention of the bill,” he said.
Hanshaw also noted if the Legislature passes the bill, and no rule is written, the current FOIA law will still apply.
During the hearing, Hanshaw called up Doug Skaff, a newspaper executive and interim director of the West Virginia Press Association. Skaff asked if the bill would change the relationship between the press and Legislature.
“I’ll categorically answer that question with a no,” Hanshaw said.
Before the session, the House Republican supermajority rewrote the rules to eliminate public hearings. Hanshaw said a new committee process would allow more public input on legislation. That has not happened, according to a review of publicly available minutes.
“Unfortunately, the track record on their new rules isn’t quite up to expectations,” said Gary Zuckett, co-director of the West Virginia Citizen Action Group.
The public is already having a harder time being heard in the “People’s House,” he said.
“I’m concerned that if they exempt themselves from an official Freedom of Information Act request, that type of information will be harder for the public to access,” he said.
In Shepherdstown, FOIA activist Austin Siford makes use of the public records law on a regular basis.
He requests information ranging from police body camera footage to spending by university administrators — sometimes he shares his findings on social media. Other times he turns them over to members of the media.
Siford said while he hasn’t submitted his own requests to the Legislature, any attack on the law is cause for concern.
“Information deserves to be free,” Siford said. “I’ll keep saying it. Information deserves to be free, especially the information of the people that we elect into the legislative body.”
Reach reporter Henry Culvyhouse at henry@mountainstatespotlight.org
