Aug. 27, 2010
State Choosing Not to Disclose Subpoena Contents; Hide Behind Claim of Secrecy
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – According to a Charleston Gazette report, the State of WV has rejected a Freedom of Information (FOIA) request to release the contents of federal subpoenas received by the Department of Administration and Division of Highways.
Special Attorney General Dwane Tinsley claimed that Rule 6(e)(2)(b) demands that grand jury matters remain secret.
However, nothing in that rule mandates that the subpoena recipient from refrain from discussing the contents of the subpoena, explained WVU attorney and FOIA expect Pat McGinley. The law professor analyzed that the rule contains no commandment of silence after receiving one.
Recently, lawyers for ex-Gov. Rod Blagojevich of Illinois who faced multiple federal charges for allegedly attempting to sell Sen. Barrack Obama’s seat to the highest bidder relied upon the same argument. The Better Government association sought copies of the federal documents served on the then Governor.
The Better Government Association prevailed in both the lower court and intermediate appeals court. Illinois Justice Robert J. Steigmann concluded that Congress has not in over 200 years established any rule regarding the conduct of subpoena recipients. The appeals judge acknowledged that some federal court have inferred that Congress’ failure to state a rule is an oversight, so they have put themselves in the shoes of Congress and written legislation via a judicial opinion.
Thus, based on the Illinois ruling, the position of the Manchin administration could be overruled by a state court should the Gazette want to play hardball .
But, the Illinois interpretation applies there, so, assuming there’s no WV law on point, the paper’s attorneys could argue that the Illinois decision be followed. Of course, nothing prevents a sympathetic WV jurist from actively taking it upon themselves to “create” a law for this case, rather than abide by the Congressional decision to let recipients determine for themselves whether to make public the information requested by the federal grand jury.
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State Choosing Not to Disclose Subpoena Contents; Hide Behind Claim of Secrecy
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – According to a Charleston Gazette report, the State of WV has rejected a Freedom of Information (FOIA) request to release the contents of federal subpoenas received by the Department of Administration and Division of Highways.
Special Attorney General Dwane Tinsley claimed that Rule 6(e)(2)(b) demands that grand jury matters remain secret.
However, nothing in that rule mandates that the subpoena recipient from refrain from discussing the contents of the subpoena, explained WVU attorney and FOIA expect Pat McGinley. The law professor analyzed that the rule contains no commandment of silence after receiving one.
Recently, lawyers for ex-Gov. Rod Blagojevich of Illinois who faced multiple federal charges for allegedly attempting to sell Sen. Barrack Obama’s seat to the highest bidder relied upon the same argument. The Better Government association sought copies of the federal documents served on the then Governor.
The Better Government Association prevailed in both the lower court and intermediate appeals court. Illinois Justice Robert J. Steigmann concluded that Congress has not in over 200 years established any rule regarding the conduct of subpoena recipients. The appeals judge acknowledged that some federal court have inferred that Congress’ failure to state a rule is an oversight, so they have put themselves in the shoes of Congress and written legislation via a judicial opinion.
Thus, based on the Illinois ruling, the position of the Manchin administration could be overruled by a state court should the Gazette want to play hardball .
But, the Illinois interpretation applies there, so, assuming there’s no WV law on point, the paper’s attorneys could argue that the Illinois decision be followed. Of course, nothing prevents a sympathetic WV jurist from actively taking it upon themselves to “create” a law for this case, rather than abide by the Congressional decision to let recipients determine for themselves whether to make public the information requested by the federal grand jury.
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