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W.Va. Legislature denies redistricting FOIA requests

W.Va. Legislature denies redistricting FOIA requests

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Published by: The West Virginia Examiner/WV Watchdog on Sep 08, 2011
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August 25,2011 The Honorable Earl Ray Tomblin Senate President Room 227M, Building 1 State Capitol Complex

Charleston, WV 25305 The Honorable Richard Thompson Speaker of the House of Delegates Room 228M, Building 1 State Capitol Complex Charleston, WV 25305 The Honorable Brent Boggs Majority Leader ofthe House of Delegates Room 228M, Building 1 State Capitol Complex Charleston, WV 25305 The Honorable Mike Caputo Majority Whip of the House of Delegates Room 246M, Building 1 State Capitol Complex Charleston, WV 25305 Gregory M. Gray House Clerk Room 212M, Building 1 State Capitol Complex Charleston, WV 25305 Darrell Holmes Senate Clerk Room 211M, Building 1 State Capitol Complex Charleston, WV 25305 Aaron Allred Legislative Manager Room E-132, Building! State Capitol Complex Charleston, WV 25305

RE:

FOIA request of information relating to legislative and congressional redistricting

Pursuant to the West Virginia Freedom of Information Act, WV Code § 29B-1-1, et seq., I am requesting information relating to the redrawing of legislative and/or congressional district lines in West Virginia in conjunction with the 2010 Census. Please provide me with the following information: • All e-mail and/or written communications, including, but not limited to maps, graphs, and/or written comments, by and among any of the following: the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, the office of Speaker Rick Thompson, the office of Majority Leader Brent Boggs, and/or the office of Majority Whip Mike Caputo from August 1, 2011 to the current date regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, and/or any comments on the reaction of the public to the redistricting process; and, • All e-mail andlor written communications, including, but not limited to maps, graphs, and/or written comments, by and among the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, Speaker Rick Thompson, Majority Leader Brent Boggs, and/or Majority Whip Mike Caputo from August 1, 2011 to the current date regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the' reaction of the Republicans to the redistricting process, and/or any comments on the reaction of the public to the redistricting process; Please notify me of any costs involved with this request. If compliance with this request will be cost prohibitive, please let me know in advance and we can arrange a time for public inspection of any and all documents covered by this Freedom of Information request. If it will take longer than the five (5) day period required under West Virginia law to complete this request, please let me know when the documents will be available, If you have any additional questions, please do not hesitate to contact me. Thank you for your immediate response to this inquiry, Sincerely,

Chad Holland Executive Director

WEST VIRGINIA LEGISLATURE Joint Committee on Government and Finance Building 1, Room E-132 1900 Kanawha Boulevard, East Charleston, WV 25305-0610 (304) 347-4800 (304) 347-4819 FAX Aaron Allred Legislative Manager Legislative Auditor

August 31,2011

Chad Holland, Executive Director West Virginia Republican Party Post Office Box 2711 Charleston, West Virginia 25330 Dear Executive Director Holland: I am writing in response to your letter of August 25, 2011, requesting information relating to the redrawing of legislative and/or congressional district lines in West Virginia in conjunction with the 2010 Census. Specifically you requested:
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All e-mail andlor written communications, including, but not limited to maps, graphs, andlor written comments, by and among any of the following: the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, the office of Speaker Rick Thompson, the office of Majority Leader Brent Boggs, andlor the office of Majority Whip Mike Caputo from August], 2011 to the current date regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, and/or any comments on the reaction of the public to the redistricting process; and, All e-mail and/or written communications, including, but not limited to maps, graphs, and lor written comments, by and among the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, Speaker Rick Thompson, Majority Leader Brent Boggs, and/or Majority Whip Mike Caputo from August 1,2011 to the current date regarding the redrawing of state legislative districts, any part of the. process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, andlor any comments on the reaction of the public to the redistricting process;

Page 2 August 31, 2011

To the extent the materials you have requested exist and are public records they are not only exempt from disclosure under subdivision (8), subsection (a) ofW. Va. Code §29B-1-4, but they are also protected from disclosure under the legislative immunity provisions of the West Virginia Constitution, Article VI, Section 17, W. Va. Code §§4-1A-l through -16 and the common law. E-mails and/or written communications, including, but not limited to maps, graphs, and/or written comments between our Redistricting Office and legislators regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, and/or any comments on the reaction of the public to the redistricting process are clearly material: 1. That is of a pre-decisional and deliberative nature with regard to any future action the Legislature may take with regard to redistricting and is therefore considered internal memoranda and is thus exempt from disclosure under West Virginia's Freedom ofInformation law, W. Va. Code §29B-I-4(a)(8); and 2. That is protected from disclosure under the "speech and debate" protections each legislator is afforded under the provisions of the West Virginia Constitution, Article VI, Section 17, W. Va. Code §§4-1 A-I through -16 and the common law. Although the requested materials are exempt from disclosure, we will review our records to determine if any exist. If we possess such materials I will contact the legislator for whom the material was prepared to seek his or her direction. If directed by the legislator to provide you with such material I will promptly forward it to you. By denying your request my responsibility is at an end. to produce the requested records or documents

~aM
Aaron Allred

Sincerely,

HOUSE OF DELEGATES
WEST VIRGINIA LEGISLATURE Charleston, West Virginia Mark W. McOwen Counsel Room 462-M, Building 1 1900 Kanawha Boulevard, East Charleston, W. Va. 25305-0470 Phone (304) 340-3230 Fax (304) 340-3388

September 2, 2011

Chad Holland and Mike Stuart P.O. Box 2711 Charleston, WV 25330 Re: Freedom ofInfonnation Dear Mr. Holland and Mr. Stuart: You have directed written requests by mail dated August 25,2011, received here August 26,2011, to the West Virginia House of Delegates ("House"), addressed to Delegate Richard Thompson, Speaker of the House of Delegates, Delegate Brent Boggs, Delegate Mike Caputo, and Gregory M. Gray, House Clerk, inter alia. Your letters appear to request certain documents in the nature of communications made by or to members of the Legislature or legislative staff, specifically: " ... information relating to the redrawing oflegislative and/or congressional district lines in West Virginia in conjunction with the 2010 Census. Please provide me with the following information: ~ All e-mail and/or written communications, including, but not limited to maps, graphs, andlor written comments, by and among any of the following: the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, the office of Speaker Rick Thompson, the office ofMajority Leader Brent Boggs, and/or the office ofMajority Whip Mike Caputo from August 1, 2011 to the current date regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, and/or any comments on the reaction of the public to the redistricting process; and, An e-mail and/or written communications, including, but not limited to maps, graphs, and/or written comments, by and among the office of the Governor, Earl Ray Tomblin, acting in his capacity as either Senate President or Acting Governor, the West Virginia Redistricting office, Speaker Rick Thompson, Majority Leader Brent Act (FOrA) request

Chad Holland and Mike Stuart September 2, 2011 Page 2

Boggs, and/or Majority Whip Mike Caputo from August 1,2011 to the CU1Tent ate d regarding the redrawing of state legislative districts, any part of the process of redistricting, any strategy to redraw state legislative districts, any comments on the reaction of the Republicans to the redistricting process, arid/or any comments on the reaction of the public to the redistricting process; ... " On behalf of the West Virginia House of Delegates , through Delegate Richard Thompson, Speaker of the House, and Mr. Gray, the Clerk of the House, this letter will serve as response to your request for information. Your request is improper under the West Virginia FOIA. Among other reasons, to the extent that records of the nature requested by you exist and are public records, if at all, they are not subj ect to disclosure under the West Virginia FOIA because, inter alia, they are records of a personal nature; internal memoranda or communications received or prepared by a public body; attorney-client communications or work-product; subject to the deliberative process privilege; or privileged under Speech and Debate and other immunities or protections afforded under constitutional, statutory and common law.

/~MIA~ d_______
Mark W. Mcfrwen cc: Speaker 'Richard Thompson Delegate Brent Boggs Delegate Mike Caputo House Clerk Gregory M. Gray

This completes the House's response to your FOIA requests dated August 25,2011

DARRELL E. HOLMES
CLERK CHARLESTON 25305-0800 TELEPHONE 357-7800

Chad Holland West Virginia Republican Party P.O. Box 2711 Charleston, WV 25330 September 2, 2011 RE: Freedom of Information Act Request

Dear Mr. Holland: This letter is in response to your August 25{ 2011, Freedom of Information Act (FOrA) request, received on August 26, 2011{ addressed to Senate President Earl Ray. Tomblin and Senate Clerk Darrell Holmes, inter alia. This response is filed within five business days{ eXcluding weekends and holidays, of the request. Your request was reviewed in accordance with the W.Va. Code §29B-1-1 et. seq. and applicable legal standards. I note that your letter is similar to prior West Virginia Republican Party requests concerning redistricting. With that in mindr we will consider this reply as a supplement to our responses dated March I, 2011, May 23, 2011, July 20, 2011, and August 9, 2011, and will not duplicate items already provided. Based upon information and belief, and as Clerk of the Senate and custodian of public records of the West Virginia Senate (as distinguished from the West Virginia House 6f Delegates, the Office of the Governor and the Redistricting Office of the West Virginia Legislature), this responds to your request as follows:
I

1. Communications by and among Senate President Tomblin and the West Virginia Redistricting office, the Office of the Speaker of the House of Delegates, the Office of the House Majority Leader, the Office of the House Majority Whip, Republicans and the public from August 1, 2011, to present regarding redrawing of sta te legisla tive and congressional districts - We interpret your request to mean both state legislative and congressional districts albeit your letter asks for the state legislative district twice. The West Virginia Senate has not identified any records in its possession subject to your request (See e.g., W.Va. Code §29B-1-2, 29B-1-3).

Thus, such information cannot be provided. Further, to the extent records might exist such records are exempt from disclosure pursuant to the codified legislative immunity provisions that apply both to legislators and legislative staff (See e.g., W.Va. Code §4-1A-7, 12). Additionally, because of the lack of specificity regarding "any comments on the reaction of the Republicans to the redistricting process, and/or comments on the reaction of the public to the redistricting process" (See, W.Va. Code §29B-1-3(4}), we are unable to ascertain whether the Senate is in possession of additional records that satisfy your request. Furthermore, all records might also be exempt from disclosure as an internal memorandum exempt from disclosure under subdivision (8)r subsection (a) of W. Va. Code §29B-1-4. The Senate also reserves its right to assert any exemption from disclosure pursuant to W.Va. Code §29B-1-4, the legislative immunity provisions of the West Virginia Constitution, Article VI, Section 17, the deliberative process privilege, and the common law.
I

I appreciate the opportunity to assist you with this matter. You are advised that the Freedom of Information Act affords you the opportunity to seek injunctive or declaratory relief in the Circuit Court of Kanawha County. This concludes the West Virginia Senate1s response to your West Virginia Freedom of Information Act request. Additionally, please be advised that information regarding Senate redistricting is also available at the following website: http://www.legis.state.wv.us/redistricting.cfm.

Sincerely,

;((1:1A;(.{'fl ~~
Darrell E. Holmes Clerk of the Senate

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