Court sides with West Virginia TV station in open records termination letter case

A termination letter involving a former top official at the now-defunct agency that ran West Virginia's foster care and substance use support services is public information, a state appeals court ruled this week, siding with the television station that was denied the letter.

The public interest in the firing of former Department of Health and Human Resources Deputy Secretary Jeremiah Samples — who was the second highest-ranking official in the state's largest agency — outweighs concerns about privacy violations, West Virginia Intermediate Court of Appeals Chief Judge Thomas E. Scarr said.

"Public employees have reduced privacy interests in records relating to their performance—especially when the records relate to the conduct of high-ranking officials," he wrote in a decision released Thursday, reversing a Kanawha County Circuit Court decision from last year.

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The appeals court judges demanded that the lower court direct the department to release the letter penned by former health and human resources Secretary Bill Crouch to Huntington-based television station WSAZ.

Crouch fired Samples in April 2022 while the department's operations were under intense scrutiny. Lawmakers last year voted to disassemble the Health and Human Resources Department and split it into three separate agencies after repeated concerns about a lack of transparency involving abuse and neglect cases. Crouch later retired in December 2022.

After he was fired, Samples released a statement claiming the agency had struggled to "make, and even lost, progress in many critical areas."

Specifically, he noted that child welfare, substance use disorder, protection of the vulnerable, management of state health facilities and other department responsibilities "have simply not met anyone’s expectation, especially my own." He also alluded to differences with Secretary Crouch regarding these problems.

WSAZ submitted a public records request seeking information regarding the resignation or termination of Samples, as well as email correspondence between Samples and Crouch.

The request was denied, and the station took the state to court.

State lawyers argued releasing the letter constituted an invasion of privacy and that it was protected from public disclosure under an exemption to the state open records law.

The circuit court sided with the state regarding the termination letter, but ruled that the department provide WSAZ with other requested emails and records. While fulfilling that demand, the department inadvertently included an unredacted copy of an unsigned draft of the termination letter.

In this draft letter, Secretary Crouch sharply criticized Samples’ performance and said his failure to communicate with Crouch "is misconduct and insubordination which prevents, or at the very least, delays the Department in fulfilling its mission."

He accuses Samples of actively opposing Crouch’s policy decisions and of trying to "circumvent those policy decisions by pushing" his own "agenda," allegedly causing departmental "confusion" and resulting in "a slowdown in getting things accomplished" in the department.

The agency tried to prevent WSAZ from publishing the draft letter, but in August 2023, the court ruled it was WSAZ’s First Amendment right to publish it once it was sent to the station. Samples told WSAZ at the time that he supports transparency, but that the draft letter contains "many falsehoods" about him and his work.

In this week's opinion, the appeals court judges said the fact that the draft letter was released only heightened the station's argument for the final letter.

The purpose of the privacy exemption to the Freedom of Information Act is to protect individuals from "the injury and embarrassment that can result from the unnecessary disclosure of personal information," Scarr wrote.

"The conduct of public officials while performing their public duties was not the sort of information meant to be protected by FOIA," he said, adding later: "It makes sense that FOIA should protect an employee’s personal information, but not information related to job function."