There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  – by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 – John H. Bryan, West Virginia Attorney.