Published: May 01, 2008 09:48 pm      

Overall consensus of candidates: Judges’ e-mails fair game

BLUEFIELD — West Virginia Supreme Court Justice Elliott “Spike” Maynard “probably” will turn over e-mails requested by the Associated Press in a recent court case, the chief justice told the Daily Telegraph editorial board Thursday.

The AP filed a lawsuit in circuit court Wednesday to obtain e-mails, visitor logs and other records of Maynard. In the wake of the lawsuit, the chief justice, as well as four other candidates currently running for a seat on the high court, were asked by the Telegraph’s Editorial Board if these correspondence were under the public’s purview through the state’s Freedom of Information Act.

The overall consensus by the candidates: Yes, the e-mails do fall under the state’s Freedom of Information Act, except for those that would fall within the realm of normal statutory exceptions.

The Associated Press lawsuit claims the court was wrong when it decided that records maintained by Maynard were not subject to FOIA. The AP sought the records earlier this year as part of its coverage of a European rendezvous between Maynard and Massey Energy chief Don Blankenship in July of 2006.

The AP reports the Richmond, Va.-based coal company had several cases pending or en route to the West Virginia Supreme Court at the time of the European vacation.

“There is not a lot I can say while the case is under litigation, but I think the law makes it clear that Supreme Court records are public documents,” said Dorothy Abernathy, AP bureau chief for West Virginia and Virginia, while at the Daily Telegraph office Thursday.

“Visitor logs are a curious thing,” Maynard said, when questioned about the AP’s suit. “I don’t know any justice that keeps visitor logs.

“With regard to e-mails (falling under FOIA) ... it depends on which e-mails they want, there is a lot of sensitive information” within internal e-mails, Maynard said.

Maynard said e-mails between justices and between justices and law clerks could contain private information — such as medical records — of individuals with cases before the court.

“I don’t know the scope of what they (AP) want, but I will probably give it to them,” Maynard said, adding he does not correspond much via e-mail because he doesn’t “type very well.”

“As a policy matter I don’t know where we’ll go with this. I think this is something the whole court will decide,” Maynard said.

The AP lawsuit requests the disclosure of all public records between Maynard, his law clerks, administrative assistants and secretaries to Blankenship or anyone acting on behalf of Blankenship, Massey Energy Co. or any of its subsidiaries.

Other candidates currently running for a seat on the West Virginia Supreme Court of Appeals, including West Virginia University law professor Bob Bastress, Huntington attorney Menis Ketchum, Charleston attorney and former Supreme Court justice Margaret Workman and Charleston lawyer Beth Walker, also weighed in on the FOIA issue as it relates to the judicial branch of government.

“They (e-mails of Supreme Court justices) are covered under our FOIA laws,” Ketchum said, noting there are 20 exceptions to the general rule.

“We have a FOIA statute that applies to the Supreme Court,” Walker said, but they (e-mails) would be subject to the exceptions applicable in all FOIA matters, such as personnel matters and the like.

Bastress agreed with Walker, adding that internal e-mails within the high court may not be open to public scrutiny while external e-mails to those outside the court would.

Workman said she traditionally has had a very open interpretation of the state’s Freedom of Information Act, however she said internal correspondence between justices should be “off-limits” to public scrutiny. Correspondence that occurs “within the court should stay within the court,” she said.

Maynard noted that the federal government and “most other states” exempt the judicial branch from having to turn over correspondence and e-mails through the Freedom of Information Act.

— Contact Samantha Perry at sperry@bdtonline.com