W.Va. high court overlooks context in keeping e-mails private

Tuesday, November 24, 2009

Absent context, the West Virginia Supreme Court of Appeals’ recent decision in Associated Press v. Canterbury is unremarkable. A judge’s personal e-mails to a private citizen are not “public records” under West Virginia’s Freedom of Information Act, the court held, because they do not involve the judge’s “official duties, responsibilities or obligations.”

Fair enough. As much as taxpayers might wish public employees did not use office time or equipment to conduct personal business, only the most zealous open-government advocates would maintain that e-mails sent by a public employee to a friend suggesting Web sites of interest, sharing an opinion on current events or arranging an after-work meeting are public records.

Sometimes, however, context is important. Let’s say, for example, that the government employee sending the e-mails is a justice on the state’s highest court. And that the recipient is a powerful corporate executive with whom the justice recently shared several meals during a vacation in Monte Carlo. And that the executive’s company recently had been hit with a $50 million verdict. And that the verdict was on appeal. And that the justice sending the e-mail would turn out to be the deciding vote in a 3-2 decision overturning the verdict.

Is it possible the e-mails now involve the justice’s duties, responsibilities or obligations?

The Associated Press thought so and in February 2008 requested under West Virginia’s FOIA all communications since Jan. 1, 2006, between then-Chief Justice Elliot Maynard and Donald Blankenship, the chief executive officer of Massey Energy. The request followed the disclosure that Maynard and Blankenship had dined together on several occasions in Monte Carlo during the summer of 2006, after it was clear that Massey Energy was appealing a $50 million verdict against it to Maynard’s court.

In November 2007, that court issued a hotly contested and highly personal 3-2 decision overturning the verdict and dismissing the case. Maynard joined the majority opinion authored by Justice Robin Davis. Justice Joseph Albright wrote a dissent calling the majority “flat-out wrong,” and Justice Larry Starcher authored a separate dissent labeling the decision “horse puckey!” Justice Brent Benjamin joined the majority and wrote a concurrence attacking Starcher’s dissent, saying in part that “Resorts to emotions and sensationalism generally betray the lack of a cogent legal basis for one’s criticism.”

Starcher’s disgust with the majority opinion undoubtedly was fueled by his belief that Blankenship had succeeded in buying the court. While the appeal was pending, Blankenship spent $3 million in support of Benjamin’s campaign to win a court seat. Benjamin nevertheless rejected two requests that he recuse himself from the case. (In June 2009, the U.S. Supreme Court ruled 5-4 in Caperton v. Massey that Benjamin should have recused himself and ordered the West Virginia high court to reconsider the decision overturning the $50 million award.)

All of this context was important to the trial judge who heard AP’s suit to disclose the e-mails. After reviewing 13 e-mails in camera (in private), the judge found that five of them related to Maynard’s ultimately unsuccessful re-election campaign and constituted public records. The other eight, the judge said, did not contain information relating to government affairs because they were written after Maynard had recused himself from further Massey Energy cases.

The AP appealed the ruling as to the eight e-mails, and the court’s administrator appealed the ruling as to the five. In a 4-1 decision written by Davis, the court sided with its administrator, holding that a personal e-mail sent by a public employee is not a public record under the state’s FOIA unless it relates “to the conduct of the public’s business.”

These e-mails, the court concluded, did not relate to the public’s business. According to the court, 12 of the 13 “simply provided URL links to privately-operated internet websites that carried news articles Justice Maynard believed Mr. Blankenship would be interested in reading.” The 13th, the court said, only provided Blankenship with a private organization’s meeting agenda.

The AP, which received the five e-mails after the trial judge ordered their disclosure, said the court’s description of the e-mails was “not accurate.” According to the AP, two of the five released e-mails contained links to and critical comments from Maynard about a law firm’s Web site that questioned Massey’s safety practices.

In holding the e-mails were not public records, the court rejected the trial judge’s view that the context in which the e-mails were created was relevant to whether they contained information relating to the public’s business. The definition of “public record” in the FOIA — “any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body” — does not, the court said, make “a document a public record merely because of public interest in the record.” The trial judge’s approach, therefore, impermissibly read into the statute “a context-driven analysis.”

The context of an e-mail or other “personal” communication, however, contains many more layers than just whether the public is interested in the communication. As the facts in this case demonstrate, a sharing of information that might be innocent and non-public in some instances can in others relate directly to the public employee’s duties, responsibilities or obligations. In this case, part of Maynard’s duty was to maintain not only impartiality but also the appearance of impartiality. A determination of whether the e-mails were public records, therefore, should have gone beyond the content of the e-mails and included an analysis of whom Maynard sent the e-mails to and whether the e-mails compromised Maynard’s ability to perform his responsibilities.

Indeed, a context-driven analysis prevents the result that the court feared — that ruling for the AP would make every public employee’s grocery list subject to FOIA disclosure. By considering an e-mail’s context, a court can more accurately ensure that public information is public and private information is private.

After all, not even every grocery list should be automatically exempt from disclosure. What if, for example, a grocery list proved that an Securities and Exchange Commission enforcement officer had been entertaining Bernie Madoff?