WV House considers changes to public records access, what can be subject of FOIA

House Bill 3412, sponsored by Hanshaw, would exempt the Legislature from requirements of the Freedom of Information Act, if it adopts its own rules.

The House Rules Committee reviewed the measure Wednesday.

Current state FOIA law does not differentiate between the state’s court system, the executive branch and the legislature, Hanshaw said. He told committee members individuals often use FOIA to access drafts of bills that are never introduced.

FOIA laws have existed since 1966.

Hanshaw wants the House to write rules that make it clear to the public what is and is not a public record.

“One of the objections sought to be achieved by this particular piece of legislation is clarification of what is and isn’t a legislative record that can actually be reachable by those who simply seek access to legislative records,� he said.

What they said

Doug Skaff, interim director of the West Virginia Press Association, appeared before lawmakers to question if the bill would affect journalists’ access to legislative records.

“We just want to make sure that these laws provide a legal basis and a framework that government records, meetings and all the doings within the public body of this Capitol is available to recognized media outlets in this state,� Skaff said. “We think we owe it to the people of West Virginia to discuss and spread the information that happens under this dome.�

Skaff is also the president of HD Media, the parent company of the Gazette-Mail.

Hanshaw said that he views the media as partners who disseminate the information about what happens at the Capitol.

“We think we have a pretty constructive relationship with our media partners right now … we realize that the press is not the only user of the Freedom of Information statute,� Hanshaw said.

“We would be supportive as long as it doesn’t restrict the right of the media to do their job,� Skaff responded.

Ann Ali, deputy chief of staff and communications director for the House of Delegates, said in an email that the intent of the bill is not to hide public records and that Hanshaw wants any legislative records currently available to the public to remain available to the public.

“However — the intent is also to exempt the Legislature from FOIA and to adopt open records rules the Legislature would follow, because there may be instances when FOIA doesn’t fit the specifics of what the Legislature is or does,� she said. If the change is adopted, people would cite a rule rather than the Freedom of Information Act in a request for public documents, she said.

While House Minority Leader Sean Hornbuckle has concern about the bill, he feels that it would still permit the media to access records for reporting.

“It appears it has to do more with people outside the state who might have ulterior motives. I do feel better [about it],� said Hornbuckle, D-Cabell.

The American Civil Liberties Union of West Virginia also has concerns with the bill.

“First the Senate limited recording in the chamber. Then, the House did away with public hearings. Now they want to exempt the Legislature entirely from open records laws,� ACLU-WV Advocacy Director Rusty Williams said in a statement. “They won’t be satisfied until they’re passing their harmful, extremist agenda entirely in private. Enough is enough. We have a right to know what our elected leaders are up to.�

What’s next

In order for the change to go into effect, the bill would first have to become law. Next, the House would have to create then adopt its own rules in order for the new FOIA rules to go into effect. Without a rule, the default would be the current FOIA statute, Hanshaw said.

The Senate could adopt the rules to become regulations that apply to both bodies, according to Hanshaw.