Posted: April 25, 2018 at 8:09 pm

By Nick Kirincic and Shannon MacNeil

In 2016, several faculty at West Virginia University’s Reed College of Media met with Morgantown Police Chief Ed Preston to discuss difficulties that student journalists were having obtaining public information from his department. The police were not allowing students unfettered access to copies of arrest and incident reports compiled into what was known as the arrest docket. Such documents are considered public information under West Virginia’s Freedom of Information Act. During his meeting with faculty and Dean Maryanne Reed, Chief Preston promised to make the arrest docket available to students.

Two years later, student journalists are still being given the run-around when they request arrest and incident reports that are considered public information under West Virginia’s Freedom of Information Act, the state’s Sunshine law. While the Morgantown police no longer keep arrest and incident reports bound in a paper docket, copies of the electronic documents should be available to anyone who requests them, according to Patrick McGinley, a professor of law at West Virginia University and an expert on the state’s Freedom of Information Act.

This spring, students trying to obtain such electronic reports were told they had to get the public records they wanted from the magistrate or circuit courts, even though the police are bound by law to provide copies of arrest and incident reports to journalists and ordinary citizens. Other students were told they would be charged for a copy of one or two arrest reports, even though West Virginia FOIA law stipulates that copies should be free as long as they don’t take up extra “man-hours.” The law also allows government agencies to waive copying costs when the requests come from legitimate members of the press.

“You would hope [local law enforcement] would learn fairly quickly that it’s easier to hand over those records, than to have to respond to a freedom of information request,” McGinley says. “They know better.”

Not every record is public, of course; there are exemptions to what the public can request under the law. For example, police don’t have to release notes they take on an ongoing investigation. However, McGinley says such exemptions are construed narrowly by the courts.

“The whole focus of the [West Virginia] Freedom of Information Act with regard to public records is that there is a presumption of disclosure,” McGinley says. “If a public body decides to withhold information requests under the act, they have to give the reasons that they’re withholding and they have to cite the particular exemption or exemptions that apply.”

Even when student journalists filed Freedom of Information Act requests for recent arrest records, they were given a hard time.

Student journalists have also had problems getting public information from local courts. Doug Soule, a news editor at The Daily Athenaeum, West Virginia University’s student newspaper, was taking pictures of documents at the Monongalia County Circuit Court last December for a story he was pursuing. A court clerk came up and told him that if he wanted to continue to take pictures, it was going to cost him $1 per picture.

Douglas Soule was working on a story for the Daily Athenaeum when he was told he’d have to pay $1 for every picture that he had taken.

Soule was surprised since he was taking pictures of court documents that are considered public information under the West Virginia’s Sunshine law. Even so, he offered to pay for the pictures, but all he had with him was a debit card. Court clerks said they only took cash and eventually they allowed Soule to leave with his pictures.

There’s no way that you should have to pay $1 for a digital picture,” Soule said. “If that’s actually the case, which it’s not, that would definitely hinder the public’s knowledge.”

Jamie Lynn Crofts, Legal Director for the ACLU of West Virginia, says this problem isn’t contained to just Monongalia County; it is statewide.

“I have heard stories about [local and state] government agencies either refusing FOIA requests or ignoring them,” said Crofts. “And obviously that’s illegal under West Virginia law.”

Violating freedom of information laws is a growing problem on the federal level as well. Federal FOIA denials rose almost 10 percent from 2016 to 2017, according to the US Department of Justice.  FOIA requests have also gone up over the years, despite President Obama’s “FOIA Improvement Act of 2016,” which was designed to streamline the procedures for getting information out to the public.

According to an analysis done by the Associated Press, the federal government spent over $40 million in legal fees last year fighting FOIA requests. The AP found that 78 percent of the people who filed a FOIA with a government agency either received censored files or nothing at all.

This month, the two student journalists who filed this report attempted to obtain files from both the Morgantown police and the Monongalia County Sheriff’s office. In both cases, they were repeatedly told to go down to the courts. They then submitted FOIA requests asking for all the arrest reports from March 23 to 29, but when they called to ask the status of the requests, the secretary for the Morgantown police said she would have to charge them for each report. A few hours later, they received a call from Police Chief Ed Preston asking what they needed all these documents for and that their request was too onerous. The students then asked for only those arrest reports that resulted in felony charges and were told by the Chief that he would provide them at no charge.

However, when one of the reporters went to the police station the next day to pick up the documents, an employee in the records department tried to charge her $114 for the copies. The student left the station, only to later receive a call from the same employee saying she had talked to Chief Preston and would not charge for the documents.

Preston could not be reached for comment this week on the difficulties student journalists continue to encounter. An employee with the city of Morgantown attorney’s office said that Morgantown police wasn’t doing anything wrong.  McGinley disagrees.

“The legal problem is if the Sheriff’s office and the Police department have [the records], then they have to provide them, period,” says McGinley. “Public bodies don’t understand what their obligations are under FOIA, but they could be educated.”