IN THE CIRCUIT COURT OF _ CABELL COUNTY, WI CIVIL CASE INFORMATION STATEMENT. (Civil Cases Other than Domestic Relations) Case No. 16-€- 89.0 Judge: I. CASE STYLE: Plaintif{(s) South Charleston. vs. Defendant(s) ‘Tom McComas Name 750 Fifth Ave.. Suite 101 Street Address Days to Answer 20 ‘Type of servie@ CG) Substitute/Comporate 3 EST ess Il. TYPE OF CASE: General Civil Adoption | (] Mass Litigation (As defined in TCR. 26.04(a)] [J Administrative Agency Appeal Asbestos 2 Civil Appeal from Magistrate Court LD FELA Asbestos CO Miscettaneous Civil Petition O otter:_ _ [i Mental Hygiene (2 Habeas Corpus/Other Extraordinary Writ (CO Guardianship | other: _ Medical Malpractic I. JURY DEMAND: [] Yes T No CASE WILL BE READY FOR TRIAL BY (Month/Year): IV. DOYOUOR ANY _| IF YES, PLEASE SPECIFY: ] OF YOUR CLIENTS _| [] Wheelchair accessible hearing room and other facilites | OR WITNESSES Reader or other auxiliary aid for the visually impaired | IN THIS CASE | [Interpreter or other auxiliary aid for the deaf and hard of hearing REQUIRE SPECIAL | spokesperson or other auxiliary ad forthe speech impaired | ACCOMMODATIONS? t | 7 Foreign langnage interpreter-specify language: | res DA " Oves Cotter: Attomey Name: | Representing | Firm: : | Plaintite 0 Deffndant Address: O cross-Defendant [7] Crops-Complainant ea _ _ _ C1] 3rd Pyrty Plaintitt ] 3rdjParty Defendant Proceeding Without an Attorney = Original and__4__copies of complaint enclosed/attache Dated: 12 / 30 / 2016 Signature: SCA-C-100: Civil Case Information Statement (Other than Date: 12/2015petal Case Number: 16-C etal CIVIL CASE INFORMATION STATEMENT | DEFENDANT(S) CONTINUATION PAGE ‘Tom McComas. sheriff of Cabell County _ Defendant's Name — 750 Fifth Ave., Suite 101 Days to Answer: 20 ‘Sireet Address ‘Huntington, WV 25701 Type of Service: Tity, State, Zip Code Defendants Name | Days to Answer: | | Type of Service: Days to Answer: ‘Type of Service: Days to Answer: ‘Type of Service: [Dtendants Name | Days to Answer: | Saeet Address 7 | Type of Service: | Days to Answer: | Type of Service Days to Answer: Type of Service tement- Defendant(s) Continuation Page Revis Date: 12/2015FILED IN THE CIRCUIT COURT OF CABELL COUNTY, WEST VIRGIUAMT 70 MI 57 | Jay Lawrence Smith, an individual ! Plaintiff, é v Civil Action No. Honorable___ Tom W. McComas, individually, and in /a/ CHRISTOPHER D. CH his official capacity as the Sheriff, and Treasurer of Cabell County Defendants COMPLAINT FOF DECLARATORY AND INJUNCTIVE RELIEF ‘Now comes the Plaintiff, Jay Lawrence Smith, who states as follows: PARTIES 1. Jay Lawrence Smith (“Smith”) is a resident of Hurricane, Putnam County, Wes| Virginia, | 1008 ch RK Judge es 2. Smith isa free-lance legal researcher, and journalist whose principal place of business is in South Charleston, Kanawha County, West Virginia. | 3. Defendant Tom W. McComas (“McComas”) is a resident of Barboursville, Cabell County, West Virginia and is, at all times relevant hereto, the Sheriff of Cabell County. | 4, The Sheriffs elected by popular vote to a four-year term, and is limited to holding office to two consecutive terms.5. McComas became the Sheriff of Cabell County on Jan. 1, 2009 after suecestly running forthe offie inthe 2008 election. Following re-lection in, November 2012, he bagan serving his second, and final term on Jan, 1, 2013 | 6 Under West Virginia Code, the Sheriff also acts asthe Treasurer forthe county. 7. Imhis capacity as Treasurer, the Sheriff is responsible for collecting a fee from anyone applying for a concealed weapons permit. 8. Under West Virginia Code, the Sheriff, in his capacity as the Treasurer, has a duty to maintain records, available for public inspection, of all monies he collects, and how they ale expended. 9. _Asthe conduct complained of, and as more particularly set forth herein, occurfed in Cabell County, this matter is properly venued with this Court | FACTUAL BACKGROUND | 10. Smith reincorporates the allegations set forth in paragraphs 1-9. i 11. Onor about Monday, Feb. 1, 2016 Smith made a verbal Freedom of Informatjon Act (“FOIA”) request to MeComas via telephone at the executive office he maintains at the Cabell County courthouse on 750 Fifth Avenue in Huntington. | 12, In his request, Smith asked for “[d]eposits and expenditures made to and front the concealed license holder's (a.k.a. concealed weapons) permit fund from Jan. 1. 2001 through Dec. 31, 2015 |13. Inthe opinion of the West Virginia Attorney General, a verbal request is considered valid request for information under the state open-records law. 14. Under West Virginia Code, a records custodian has five business days to respi a FOIA request. 15, The deadline for MeComas to respond to Smith's FOIA request was the close business on Friday, Feb.5, 2016. 16. When McComas did not respond by the deadline, Smith submitted a second FC request in writing on Wednesday, Feb. 17. The request was sent to McComas via U.S. Mai e-mail to the address listed on the Cabell County Sheriff Department's [“CCSD"] Web site {Attached as Exhibit “A”]. | 17. Two days later, McComas responded via e-mail to Smith’s second FOIA request it, MeComas said, since they were immediately available, he could provide the past three dito fears of records - 2013, 2014 and 2015. However, the remaining years - 2001 through 2012 - would be provided following a search of CCSD’s “archival storage system” which would take “seve man hours to gather.” 18, Inhis response, McComas also said, | ‘We can provide an estimate to you that | includes employee time costs and copy costs in order for us to complete your current reque} He cluded his response stating there would be “a $0.10 per page cost to copy each | reconciliation” [Attached as Exhibit “B”]. 1 1"19. A copy of McComas’ response was sent to Smith via U.S. Mail on Feb. 24 [Attached as Exhibit “C”] 20. At the time of Smith’s request, H.B. 2636 was in effect. H.B. 2636 made revisions to the state open-records law that included outlawing “research fees” and limiting the fee to a a records custodian could charge for photocopies to a “reasonable” one based on the “actual gost of reproduction.” 21. H.B. 2636 also exempted from disclosure under the open-records law an indivi concealed license holder’s information, 22. On or about April 18, Smith replied to McComas’ Feb. 19 response. In it, Suit said he was agreeable to granting McComas, and the CCSD staff “a reasonable amount of time {o locate what remaining documents in its archival storage system beyond the currently available three years.” Also, Smith agreed “to pay the $.10/page copying fee once the documents ar made | available for inspection,” and should the portable electronic devices he brought with him fajled | to operate [Attached as Exhibit “D”]. | | 23. In addition to U.S. Mail, Smith sent his reply to McComas via e-mail as a PDF attachment [Attached as Exhibit “E”]. | 24. When he did not hear back from him, Smith sent McComas a message via emi Wednesday, June 1 that he intended to appear at C SD’s executive office either on the ner day or the following to look at the records he requested [Attached as Exhibit “F”].| | | 25. Due to other pressing matters, Smith did not make a visit to CCSD's executive office on either June 2 or 3 to look at the records he requested from McComas. | 26. However, on or about Wednesday, July 27 Smith called, and left a voice-messdge with McComas that he would likely be appearing at CCSD's executive office the next day | following conclusion of the regularly scheduled Cabell County Commission (*CCC*) meting to view the records he requested. | 27. On Thursday, July 28 following conclusion of CCC’s regularly scheduled mecting, ‘Smith presented himself to CCSD’s executive office, and requested to see the concealed weapon’s fund reconciliation documents he requested in February. | 28. Shortly after arriving at the office, Smith was greeted by “Bethany” who said McComas was not in the office, but would take a message, and have him contact Smith | concerning the availability of the records. After Smith left his telephone number, he depart CCSD’s executive office, then the courthouse, | 29. A video of Smith’s visit can be found on You Tube -http:/tinyurl.com/23e43m)7. 30. Since then, Smith has received no follow-up phone call, e-mail or letter from McComas or any of his agents/employees concerning the availability of the requested records, 31. The failure of Defendant McComas to produce the records Smith originally requested in February has prompted the filing of the instant suit.ARGUMENTS | 32. Smith reincorporates the allegations set forth in paragraphs 1-31. 33. West Virginia Code § 29B-1-3(|)specifically states: “Every person has a righ to inspect or copy any public record of a public body in this State, except as otherwise expressly provided by section four [29B-1-4] of this article.” | 34. Despite timely responding to Smith's Feb. 17 follow-up request, MeComas hag failed to either produce the records Smith requested or cite a valid reason why they are exeipted from disclosure. | 35. AAs such, MeComas has deliberately, intentionally and maliciously withheld the documents from public disclosure. 36. Smith’s interest in this action outweighs any arguments for non-disclosure. | Moreover, the information requested is public. | WHEREFORE, the Plaintiff prays that this Court: 1. declare thatthe Defendant's refusal to disclose the records requested by Smith a unlawful; | 2. grant injunetive relief, enjoining Defendant from withholding and/or concealing. records without justification, and order production to Smith of records improperly withheld and/ or concealed to include those requested on Feb. 1, 2016.3. grant a permanent injunction requiring the Defendant to undergo training for befier understanding of W. Va, Code § 29B, including the revisions made by passage of H.B. 2656, and implement a plan for more timely, and accurate responses to FOIA requests; 4, award Smith his costs, and reasonable attomey fees, if applicable, incurred in this action, as required by W. Va. Code § 29B-1-7; and 5. grant Smith such other relief as the Court may deem just and proper. 5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (681) 233-3382 mslmediainc@yahoo.com jay Ifawrence Smith Pro se Stee gq Wot Virpiove, g Cok Tha raoed wir alinowdilad Ayers we on 12 [re(20b ly Jey PS id Bwens (Cabot! County Public Library ‘455 on bt lags untingtos‘Tom McComas, sheriff Cabell County Sheriff's Dept. Cabell County Courthouse 750 Fifth Ave. Suite 101 Huntington, WV 25701 Dear Sheriff McComas: Pursuant to the West Virginia Freedom of Information Act (W. Va. Code 20! 17 February 2016 FILED amg pre 20 MA: 58 1,et. seq.) I request access to the following: ‘its and expenditures made to and from the concealed license '* Deposit holder's permit fund from Jan. 1, 2001 through Dec. 31, 2015. ‘As required by the Act, I expect your response within five business days. If chose to deny all or part of my request, please cite the specific part of the your denial. ‘THIS IS A SECOND REQUEST FOR INFORMATION. Once the information is ready, I ean be contacted at either the telephone m or addresses listed below. I thank you, Sheriff McComas, for taking the ti field my request, and look forward to your reply. Si Lat ice J. Smith ce: Ann Yon, president, Cabell County Commission 5312 MacCorkle Ave., S.W. #238, South Charleston, WV 25309 (04) 397-6075 mslmediainc@yahoo.com Sent via e-mail and U.S. Mail for ber to— Cabell County Sheriff From: Cabell County Sheriff Sent: Friday, February 19, 2016 1:23 PM 7 a towers mm cor ‘ayon@cabellcounty.org° 204 RE-Follow-up Freedom of Information Act request « Concealed fund Mr. Smith, We have received you FOIA request dated February 17, 2016 regarding the county's Concealed Wea| \ 6” 3 holder's permit jons account. We can provide copies of monthly reconciliations to you. However, due to the number of years you requested, we would urrently only keep this information complete your her that have to locate the majority of the information you are requesting in our archival storage system. We three years of those records in our office. Therefore, it wll take our staff several man hours to gather We can provide an estimate to you that incudes employee time costs and copy costs in order for us current request. Or, if you would like to revise your request to include years 2012 to 2015, we can gat information for you that we have on hand, which would include a $0.10 per page cost to copy each ré Thank you for your request. Please feel free to let us know how you would like to proceed. Cabell County Sheriff's Department 750 Fifth Ave., Suite 101 Huntington, WV 25702 (304) 526-8663 (p) (304) 526-8649 (f) cabelicountysheriff.com Original Message—~ From: Lawrence J. Smith [mailto:msimediainc@yahoo.com] Sent: Wednesday, February 17, 2016 3:38 PM To: cabellcountysheriff@gmall.com Cc: ayon@cabellcounty.org Subject: Follow-up Freedom of Information Act request - Concealed license holder's permit fund Sheriff McComas: Attached, you will find a follow-up Freedom of Information Act request for documents regarding dep expenditures taken from the concealed license holder's permit fund for the previous 15 years. Expect copy of this request tomorrow. Lawrence J. Smith sits made to, and to receive a hardVl FILED gog 9Fe 20 AME 58 SHERIFF or CABELL COUNTY "Thomas W. McComas, Sheriff Mr. Lawrence Smith 5312 MacCorkle Ave.. SW #238 South Charleston. W 25309| \\ FILED 716 NFP 30 AM A: 58 18 April 2016 ‘Tom McComas, sheriff on Cabell County Sheriff's Dept. Cabell County Courthouse 750 Fifth Ave, Suite 201 Huntington, WV 25701 Dear Sheriff McComas: 1 apologize for the belated reply, but I'm in receipt of your letter dated Feb. 19 responding to my Freedom of Information Act request for the monthly Teconciliations made to the concealed license holder's permit fund from Jan. 1, 2001 to Dee. 31, 2015. I thank you for your prompt reply. I'm willing to grant your office a reasonable amount of time to locate what remaining documents in its archival storage system beyond the currently available three years. Also, I agree to pay the $.10/page copying fee once the documents are made available for inspection, and the portable electronic devices Tring with me fail to operate. ‘Once the information is ready, I can be contacted at either the telephone number or addresses listed below. I thank you, Sheriff McComas, for taking the time to field my request, and look forward to yous reply. 312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (304) 397-6075 mslmediaine@y2hoo.com ‘Sent via e-mail and U.S. Mail 4Fw: [Tiny Scanner] CCSD CLH permit fund FOIAresponse From: “MSL Mota Erersos" ‘To: "SL Mexia Enterseee" 1 1248 Downend All ‘Saw Inoration conutsts soning he Vginias and Ohio Public recon esearch * Process sening * Asse location 26-pour shonin (681)738:3382 ~ On Sun, 497/18, Lene J. Smith rom: Lawrence J Smith 2 Suet Tiny Scanner OCBD CLM pert FOR responce 2a 1 > ce: iherpsonigeabalcouny.m "Witom Watson unease com> > Date Sungay, Apel 17, 2016, 1181 PM > Shon Mscomaa:, 5 Alteched, you wl ind my respanseto your Feb. 19 rept to > ny Freedom of roatin At request fe steal sta on > the concealed Hearse hol’ para re. Expect 0 > rece a hard copy oth leon Tose, > Lawrence J Sma > Sent fom my iPad | Mea FILED E mg AF 30 rE aFw. Followup to historical CHL fund reconciliations From: “MSL Moa Enterptses" Te: "MSL Media Exteprsoe” -rkermation constants ering the Virgras and Ohio Publc roca esearch * Process sendng* Asses cation ‘nour phones (81) 2383382 On Wed, 6/116, Lawrence J. Smith wot: > From: Lawrence J. Sin Date Wocnesday, cine > Shert McComas tm folowing up onthe ecient ade wth your > ofice in Fobrny forthe mony rcanetone made 2) > the concesodIcence holds port ind fom Jn, 2 12001 Bough Deo. 31, 2018, Shc recon > mi last conesponence dated Ap 8, tant hose > robes hive ton located and racy fr nspeton 2016, 243 PM > Expect me to apoa at your efice eer tomorow or > Fray. tn unable to make hes of ose days, > Iv eontact you, and reschedule aie Yo appear ext > wok > Lawence J Smith 3 Sont fom my Baa amg nee 30 aS cary 22 SS FILED 2. ee &