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West Virginia Senate Government Organization Committee keeps Legislature in FOIA law

A general view of the West Virginia State Capitol in Charleston on May 4, 2023. (AP Photo/Jeff Dean, file)

CHARLESTON — Members of the Senate Government Organization Committee agreed Wednesday to keep lawmakers under the same public records rules as other government entities while also increasing the response time and adding additional fees for requests.

The version of House Bill 3412 passed by the House of Delegates last week would have removed the Legislature from the list of public bodies included in West Virginia’s Freedom of Information Act. The exemption would have gone into effect once the House and Senate adopted their own rules or joint rules regarding the release of public documents.

The Senate Government Organization Committee adopted a strike-and-insert amendment Wednesday that removed the provision exempting the Legislature.

“I think that the House bill sent a horrible message to the citizens of our state that we, the Legislature, should not be accountable as any other agency,” said Senate Minority Leader Mike Woelfel, D-Cabell, expressing thanks to committee Chairwoman Patricia Rucker, R-Jefferson. “The perception is that we operate with a lack of transparency. And this House bill simply reinforced that perception. So, I commend you for ensuring that transparency remains the order of the day.”

The bill expands the exemption for internal memoranda – such as draft bills and amendments prior to being formally introduced or adopted – or letters received or prepared by any public body to include deliberative or preliminary information, or records that are prepared for internal advisory or decision-making purposes that would not be disclosed in the normal course of business.

However, the committee’s strike-and-insert amendment provides stricter guardrails in the FOIA law that could allow state and local governments to avoid compliance, delay responses and charge higher fees.

The bill, as amended, removes the requirement that the FOIA law be liberally construed in favor of disclosure. It provides that private personal information is not a public record and includes specifics about what is considered private personal information and devices. It does specify that government-issued devices – such as cell phones, tablets, and computers – are subject to FOIA.

The committee also amended the bill to extend the FOIA response deadline for the government agency from five days to 14 days. It now allows agencies to charge a reasonable search and retrieval fee based on a man hour basis. State code only allows public bodies to establish reasonable fees to reimburse for the actual cost in making reproductions of records.

The amendment bill also strikes provisions stating there is a presumption of public accessibility to all public records. State code now says “the public policy of the State of West Virginia (is) that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

West Virginia’s Freedom of Information Act provides every person with the right to inspect or copy any public record of a public body in the state unless otherwise prohibited. Those seeking records can file a Freedom of Information Act request with the record custodian of any state, county or city government, which has five business days to respond in writing to such requests.

Record custodians can allow for inspection of the public records and reproduction, for which reasonable fees can be charged. The Secretary of State’s Office maintains a FOIA database, requiring public entities to report their requests and responses, including denials.

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