ACLU-WV: 'Secret laws' in prisons must be made public

Erin Cleavenger, The Dominion Post, Morgantown, W.Va.
·3 min read

Feb. 10—The American Civil Liberties Union of West Virginia (ACLU-WV) filed legal action Friday in Kanawha County Circuit Court in an effort to compel the state Department of Corrections and Rehabilitation (DCR) and its overseer, the West Virginia Department of Homeland Security (DHS), to release a "secret set " of legislative rules being hidden from the public.

The ACLU-WV is petitioning the court for a writ of mandamus, an order from a court to an inferior government official ordering the government official to properly fulfill his or her official duties or correct an abuse of discretion, asking the court to intervene with the departments' refusal "to comply with their clear legal duty to make agency rules which bear the force and effect of law available to the public."

In the petition, the ACLU-WV claims to have first requested a copy of the DRC Policy Directives Manual on Jan. 10. The union received a partial copy of the manual on Jan. 19. Included was a cover letter indicating the request was being treated as a Freedom of Information Act (FOIA) request and additional records may have been exempt.

However, the ACLU-WV noted the West Virginia Code of State Rules "incorporates by reference the Policy Directives Manual as a legislative rule." The code text also states the manual is available from both the West Virginia Department of Corrections and the Secretary of State's office.

Legislative rules are inherently public documents according to West Virginia code 29A-2-4.

On Feb. 2, ACLU-WV staff members went to the Secretary of State's Office to review DCR's policy manual and were at first granted access, according to a Friday press release. Upon initial review, it was clear that earlier versions of the rule provided to ACLU-WV by DCR were inaccurate. The following workday, ACLU-WV returned to the Secretary of State's Office to resume review of the policies.

"Shockingly, ACLU-WV learned that DHS had asked for permission to remove the documents from the Secretary of State's office, a request which was denied, " the release said.

However, access to some of the documents was denied after DRC and DHS were permitted to "restrict access to portions of the legislative rule they deem to be 'restricted' until the Secretary of State's office is directed otherwise, " according to the petition.

The ACLU-WV petition also stated the DRC and DHS allege they had previously failed to provide accurate copies of the legislative rule to the Secretary of State and thereby assert that "they are the only entity with full access to a full, complete, and accurate copy of this legislative rule."

Additionally, the ACLU-WV claims the departments also allege that they have "retroactively restricted previously public legislative rules and have restricted public access not only to present copies of those rules, but removed reference to the historic, public, records of those rules as well."

"Democracies are not ruled by secret laws, period, " said Aubrey Sparks, ACLU-WV managing attorney. "The legislative rules promulgated by every state agency in West Virginia are considered law and are therefore open and available to the public under state code 29A-2-4."

Sparks pointed out that state departments can maintain non-public policies under certain circumstances, such as those that directly relate to personnel safety, but this does not apply to legislative rules that carry the force of law.

"What DCR and DHS are doing is lumping regular laws in with those that can be kept from the public eye in order to avoid accountability, " Sparks said.

The case has been assigned to Circuit Court Judge Carrie Webster in Kanawha County, which is the exclusive venue in which to litigate a writ of mandamus when a state official is named as a respondent.

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