FOIA lawsuit and West Virginia statutory notice provisions

There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.

The grounds for dismissal were failure to comply with the statutory notice provisions.  When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.”  It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.”  But regardless, there’s not much case law on the topic for either side in these situations.  But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.

I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues.  He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives.  The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments.  Circuit Court’s usually don’t take judicial notice of attorney gossip.

One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit.  The statute only applies to the state and all of it’s agencies and appendages.  And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit.  But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?”  I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.

Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this.  They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.  

A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”

 – John H. Bryan, West Virginia Attorney

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