Charleston– A case before the state Supreme Court seeks to broaden the open-records law
by outlawing restrictions on the use of cameras to duplicate documents, and
nullification of a $1 per page copy fee still charged by circuit clerks
following a revision to the law four years ago.
Jay
Lawrence Smith is asking the Court to reverse dismissal of his Freedom of
Information Act suit against Grant Circuit Clerk Angela Van Meter, and the Grant
County Commission. In his appeal filed
Oct. 27, Smith, 49, a freelance journalist, and regular contributor to West
Virginia Mountain State News, says the circuit court did not give serious
consideration to his claim Van Meter first prohibited him from using his own
device to duplicate records in a criminal case only to reverse course and say
he could, but only if he remitted $1 for each image he captured
Smith’s
suit stems from still-pending criminal charges against Former Hardy Circuit
Clerk Kimberly A. Hartman accused of operating a methamphetamine lab from her
Moorefield home with her then-husband, and another couple. After learning of
objections by state troopers assigned to the Eastern Panhandle Violent Crimes
and Drug Task Force to a tentative plea agreement in Hartman’s case, Smith
appeared at the Grant Circuit Clerk’s Office on Sept. 24, 2018, and requested
to see the case file.
After
pulling it, a deputy led Smith into the records room whereby she informed him
he was prohibited from taking any pictures of any documents. When he inquired as to why, the deputy told
Smith "It’s our policy.”
When Smith
asked to see the purported policy, the deputy deferred to Van Meter who, upon
exiting her office, informed him she was "obligated” to charge him for
photocopying documents. After stating he
didn’t need any copies made, but instead would be using his iPad to take
digital images, Van Meter returned to her office.
After a few
minutes, Van Meter returned, and, claimed upon consultation with James W.
Courrier, Jr., said Smith could use his iPad to take reproductions of documents
in the Hartman file, but would have to remit $1 for each image captured. When Smith questioned the reasoning, Van
Meter told him circuit clerks were required to charge for all copies going out
of their office.
Later,
after leaving the
GrantCounty courthouse, Smith
appeared at the Hardy Circuit Clerk’s Office, and requested to see the file
against Jason L. Rodriquez, a Moorefield man charged with in January 2018 for possession
of methamphetamine. A deputy informed
him that all cases were now digitized, and led him into an adjacent room to
show him how to use the public access terminal.
During his
visit, Smith took multiple pictures of filings in the Rodriguez case. At no time did anyone in the office,
including Kelly Shockey, who was appointed to fill Hartman’s vacancy following
her resignation after being indicted, interrupt Smith or inform him he was
required to remit any money for the pictures he took.
Later,
Smith sent a formal Freedom of Information Act request to Van Meter asking for
specific documents in the case files on Kim Hartman as well as the other alleged
co-conspirators – Dennis Hartman, her husband, William Brantner and Samantha
Beatty. Along with his request, Smith included a $5 bill to cover the cost of
duplicating the documents.
Van Meter
declined to provide Smith the documents he requested. In her answer, Van Meter asserted she was "obligated
copy fees according to W. Va. Code 51-1-11” of $1 per page.
Smith
responded informing Van Meter of the 2015 revision to the open-records law that
restricted fees public agencies could charge as "reasonable” based on the "actual
cost” of reproduction. When she again
refused to provide the documents he requested, Smith filed suit on March 25 seeking an order declaring Van Meter’s "policy”prohibiting a person from using his or her own devices to duplicate
records as illegal, and the $1/page duplication fee with its devices as
unreasonable.
Following a
five-minute hearing on June 18, Judge Lynn Nelson dismissed Smith’s suit.
In his
appeal, Smith asserts his case is one of first impression for the Court to
consider regarding the authority of public bodies to restrict the public from
using cameras to duplicate records, and the reasonableness of the $1 per page
fee in light of the 2015 open-records law revision. As such, he cites three cases from
Pennsylvania,
Illinois and
Louisiana, and three Attorney General
opinions from
Florida,
Alabama and
Arizona as persuasive authority to reverse Nelson’s ruling.
"It is
clear other states have found that individuals have the right to photograph
public records and that those states prohibit individuals from being charged "copying”
fees for making photographs of public records,” Smith says in his brief. "Additionally,
other states often hold that any charges for the clerk making actual paper
copies must to limited to an amount sufficient to cover the actual costs of
those copies.”
"Of
particular note is that – all the way back in 1962 the Illinois Court in People ex. Rel. Gibson v. Peller, supra, found that ‘Modern photography is
accurate, harmless, noiseless and time saving.’ Now that we’re in 2019 – nearly
60 years later – ‘modern’ photography is even more accurate, harmless,
noiseless and time saving than it was in the 60s,” Smith added.
In the appeal, Robert W. Bright, a
Pomeroy, Ohiosole practitioner, represents Smith. Nathan Walters, partner in the Moorefield firm
of Walters and Heishman represents Van Mater, and Grant County Prosecutor John Ours
represents the commission.
Their briefs are due Dec. 16.
The Court
is expected to consider the appeal, and render an opinion sometime after
returning for its Spring 2020 term in January.
West Virginia Supreme Court of Appeals, case
number 19-0640
