McHugh
CHARLESTON – In West Virginia, openness is the standard for lawsuit settlements involving government agencies thanks to 25-year-old state Supreme Court decision.
In November, The West Virginia Record was provided details of the settlement reached in September 2008 in a wrongful death suit filed the year before against the Cabell County Emergency Medical Services. The two-year long odyssey by The Record in discovering the $3.6 million the Cabell County Commission, CCEMS' parent agency, to the family of Kristy and Jayden Crawford was brought on by the Commission denying Freedom of Information Act requests citing, among other things, the judge sealing the settlement, and not being in possession of the documents.
The ability of The Record to finally obtain the information was due in large part to a favorable decision rendered by the Court in an open records case brought before it by another newspaper. In 1986, The Charleston Gazette successfully put a stop to a former Kanawha County Sheriff's game of keep-away involving a civil rights lawsuit against him.
In 1981, three former Kanawha Sheriff's deputies filed a wrongful termination suit against then-Sheriff Carl Withrow in U.S. District Court. The deputies, including George Jarrett, alleged they were improperly fired by Withrow to keep a scandal against his chief deputy secret.
According to June 2, 2009, column written by long-time Gazette editor Jim Haught about the case, Jarrett was assigned to investigate the rape of a 16-year-old girl outside a Kanawha City liquor club operated by the brother of Tommy Carter, the chief deputy. In the course of the investigation, the girl confessed to Jarrett she had been intimate at times with Chief Carter.
The suit was eventually settled in 1985 for an undisclosed amount. By this time, Withrow, who was elected in 1980 – with the Gazette's endorsement which it later apologized for making – was defeated in the 1984 Democratic primary based on the allegations made in the lawsuit, and others involving mismanagement of records, and misappropriation of funds.
Upon learning of the settlement, The Gazette submitted a FOIA request to Withrow seeking all documents relating to it while he was sheriff. In response, George Sharp, the attorney for the county's insurer, told The Gazette he was of the opinion that since no public funds were expended in paying the settlement, the records were not public.
Also, he informed The Gazette, the records were prepared and held by Arthur T. Ciccarello, an attorney who represented Withrow in his personal capacity in the suit. The Gazette then filed suit against Withrow in Kanawha Circuit Court compelling release of the settlement details.
The judge agreed with arguments made by Withrow's attorneys that since they, and not Withrow, prepared, and had custody of the settlement details were "not a 'public document' which was 'prepared, owned and retained by a public body' with the meaning of [the FOIA law]." The Gazette then appealed the decision to the Supreme Court.
On Nov. 20, 1986, the Court reversed the judge's decision. In an opinion written by Justice Thomas McHugh, the Court held regardless who signed, and held it, any lawsuit settlement document involving a government agency was a public record.
"The disclosure provisions of this State's Freedom of Information Act ... are to be liberally construed," McHugh wrote. "A release or other litigation settlement document in which one the parties is a public body, involving and act or omission of the public body in the public body's official capacity, is a 'public record' within the meaning of the freedom of information statute ... as amended, defining a 'public record' as a writing which contains information 'relating to the conduct of the public's business[.]"
Also, not only are government agencies wrong in attempting to keep lawsuit settlement documents private by claiming a third party is in possession of them, but the Court also ruled they had a duty to make those records available to the public to see.
"Lack of possession of a n existing writing by a public body at the time of a request under the State's Freedom of Information Act is not by itself determinative of the question whether the writing is a 'public record' under W. Va. Code 29B-1-1(4), as amended, which defines a 'public record' as a writing 'retained by a public body,'" McHugh wrote. "The writing is 'retained' if it is subject to the control of the public body."
"A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity," he added.
Furthermore, the Court ruled government agencies cannot cite confidentiality agreements as a means of avoiding disclosure of a lawsuit settlement.
"Assurances of confidentiality do not justify withholding public information form the public; such assurances by their own force do not transform a public record into a private record for the State's Freedom of Information Act," McHugh wrote.
According to Haught, the documents provided to The Gazette following the Court's ruling showed the three deputies split $150,000.
West Virginia Supreme Court of Appeals case number 16642
