W.Va. Supreme Court opts for e-mail privacy

AP News
Posted: Nov 13, 2009 10:23 AM

The state Supreme Court has ruled that public officials and public employees can keep their personal e-mails private.

The court ruled 4-1 Thursday that none of the 13 e-mails between former Supreme Court Chief Justice Elliott "Spike" Maynard and Massey Energy Chief Executive Don Blankenship are public records. The Associated Press had sued to gain access to the correspondence last year, when Massey had several cases pending before the high court.

Kanawha County Circuit Court Judge Duke Bloom ruled that five of the e-mails were public, but that eight were not. Bloom reasoned that the five e-mails were public records because they touched on Maynard's ultimately unsuccessful campaign in the Democratic primary, in which he ran against two of the justices now sitting on the court. The five e-mails were released after that ruling.

But the Supreme Court ruled that Bloom was wrong to release those e-mails, and sent the case back to his court. Justice Margaret Workman was the lone dissenter.

"Of course we're disappointed in the court's cramped view of a statute which by its own terms is supposed to be 'liberally construed'," said David Tomlin, the AP's Associate General Counsel.

In writing for the majority, Justice Robin Davis said "None of the e-mails' contents involved the official duties, responsibilities or obligations of Justice Maynard as a duly elected member of the court."

Davis' opinion says that 12 of the e-mails "simply provided URL links to privately operated Internet Web sites that carried news articles," while the 13th was an "agenda for a meeting being held by a private organization."

This description is not accurate. Of the five e-mails released by Bloom's order, two contained links not to news articles, but to pages on the Web site of a Huntington law firm, along with comments Maynard wrote about the firm.

One e-mail mocked the firm's advertisements as "unbelievable," while another slammed the firm for claiming that a fire at Massey's Aracoma Alma Mine No. 1 that killed two miners could have been prevented.

The firm in question was that of Menis Ketchum, who was named in both e-mails. Ketchum was challenging Maynard in the Democratic primary at the time and voted with the majority in Thursday's ruling.

The crux of the court's reasoning was that none of the e-mails were public records as defined under the state's Freedom of Information Act.

"We conclude that not one of the 13 e-mails was related in any manner to either the conduct of the public business, or to the official duties, responsibilities or obligations of the particular public body, which was, in this instance, Justice Maynard," Davis wrote.

Davis, however, rejected Court Administrator Steve Canterbury's argument that the judicial branches' records were exempt from FOIA.

The ruling says that content is the only factor that determines whether a personal e-mail sent by any "public official or employee" is a public record under state law. Davis says that public interest in a particular case _ like the relationship between Maynard and Blankenship _ can't be used to make that determination.

"In AP's opinion there can be no such thing as a 'purely personal' communication between a powerful business and political figure and the state's chief justice who also just happens to be presiding over that powerful figure's case," Tomlin said.

Davis wrote that in order for the AP's argument to be viable, the Legislature would have to change the definition of a public record to include taking the record's context into account.

Canterbury said the opinion speaks for itself.

"The judges give up so many of their rights to free expression in public anyway, that this form of communication needs to be a little less bridled," he said.

As of early last month, the state had spent $54,552 on the case.