Judge takes no action on motion to dismiss filed in China energy suit; asks parties to narrow FOIA search

MORGANTOWN — Judge Russell Clawges took no action on a motion by WVU to dismiss a lawsuit filed by nonprofit Appalachian Mountain Advocates Inc., involving a rejected Freedom of Information Act (FOIA) request.
Clawges took the motion under advisement and gave WVU seven days to file a brief with additional information after the two parties appeared in Monongalia County Circuit Court on Monday to argue the dismissal motion.
He also asked the two parties work to identify which parts of the case they agree on and to work together to narrow the terms of a search requested in the FOIA. Clawges said he would consider if the case needs to move forward to discovery at a later date.
Seth Hayes, representing WVU, said the case should be dismissed because the FOIA request is essentially a backdoor to get a memorandum of understanding between the West Virginia Development Office and China Energy, which is protected by the economic development clause in West Virginia FOIA law.
WVU might have that document on its servers because Quingyun Sun, the assistant for China affairs at the Development Office, is also associate director of WVU’s U.S.–China Energy Center, Hayes said.
He also argued that a requested search term in the FOIA of any email containing both “China and energy” would put an undue burden on WVU because there are about 15,000 potentially responsive emails. Sun’s email signature block contains both of those words, given his role as associate director of the U.S.–China Energy Center.
It’s the same as if a FOIA requested all emails in an 11-month period from Shane Lyons with the words “director and athletics,” Hayes said.
Evan Johns, representing Appalachian Mountain Advocates, said under FOIA law it is the responsibility of the public body, in this case WVU, to prove that the request is an undue burden.
It’s not clear which role Sun was acting in when or even if he created the sought memorandum of understanding, and WVU should provide clear and convincing evidence that the document is protected, Johns argued.
He agreed the memorandum may be protected, but that without evidence of when it was created and by whom, it’s not clear.
Johns said it’s also unclear when Sun was appointed to his role at the Development Office.
The requested emails and WVU’s signature block defense are a “textbook case” of easily segregable information, Johns said.
WVU is using a “broad view” of what the exemption allows and the non-profit doesn’t know what “potentially responsive” means when WVU uses the phrase, Johns argued.
Clawges did not rule on the motion and said the two parties should work together to modify the search terms and WVU should try to spate the “wheat from chaff” on the email topic and gave WVU seven days to submit a reply brief, as requested by Hayes.
While the brief is being prepared and Clawges determines if the case should move forward the two parties should also figure out what facts they agree on, he said.

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