INTHE CIRCUIT COURT OF CALHOUN COUNTY, WEST VIRGINIA Jay Lawrence Smith, an indi Plaintiff, ‘idual Civil ActionNo__)1-C-Ve Honorable ftns\ts I) Asuedpdee Shelia Garretson, in her capacity as ‘The Circuit Clerk of Calhoun County, and ‘The Calhoun Commission, a body politic, Defendants COMPLAINT FOF DECLARATORY AND INSUNCTIVE RELIEF Now comes the Plaintiff, Jay Lawrence Smith, who states as follows: PARTIES 1. Jay Lawrence Smith (“Smith”) is resident of Hurricane, Purnam County, West Virginia. 2, Smith isa free-lance legal researcher, and journalist whose principal place of business js in South Charleston, Kanawha County, West Virginia. 3, Defendant Shelia Garretson (“Garretson”) is a resident of Grantsville, Calhoun County, West Virginia and is, at all times relevant hereto, the Circuit Clerk of Calhoun County. 4, Acconstitutionally created position, the Circuit Clerk is the custodian of records in the circuit court of each county. 5, ‘The Circuit Clerk is elected by popular vote to a six-year term.6. Garretson was first elected Circuit Clerk in 1998, and was successfully re-elected in 2004, 2010 and 2016. 7. The Calhoun County Commission (“Commission”) is the main governing body of Calhoun County, a political subdivision of the State of West Virginia. Its functions include providing facilities, and employees for the various county agencies, including, but limited to the Circuit Clerk, from tax revenue it receives. 8. Both Garretson, and the Commission are vicariously liable for the acts and/or ‘omissions of deputy circuit clerks. 9. Upon information and belief, Garretson has at least one deputy assisting her in her duties as the Circuit Clerk. 10, As the conduct complained of, and as more particularly set forth herein, occurred in Calhoun County, this matter is properly venued with this Court. FACTUAL BACKGROUND 11. Smith restates the allegations contained in Paragraphs 1-10. 12. Onor about Thursday, May 4, 2017, Smith sent Garretson a Freedom of Information Act (“FOIA”) request. ‘The request, sent both via electronic and U.S. Mail, sought a print-out of all cases filed in the Circuit Court of Calhoun County from Jan. 1, 2001 to Dec. 31, 2016 where three attorneys were listed as the counsel of record.13, The attomeys listed in Smith’s FOIA request were: ‘A. Ashley, Anita Harold B. Moore, David C. Titus, Morton 14, A copy of the FOIA request is attached as Exhibit “A.” 15. Accompanying Smith's FOIA request was a check made payable to Garretson in the amount of $5. 16. Upon information and belief, a deposit of $5 is required in order to for the circuit clerk to execute a query. 17, West Virginia Code 29B-I-1, et. seq. (the “FOIA law”) requires that a records custodian at least respond to a FOIA request within five business days. 18. As such, Garretson, the Commission and/or their agents were obligated to have something in writing to Smith dated Thursday, May 11, 2017. 19, Sometime on or after May 11, 2017, Smith received an envelope addressed to him stamped May 9 with Garretson’s return address. 20. A copy of the envelope is attached as Exhibit “B.* 21. The only contents of the envelope was Smith's check wrapped in a plain white piece of paper.22. No explanation was provided by Defendants and/or their agents as to why Smith’s check was returned. Also, they failed to provide any legitimate reason, including the statutory exemptions specified in state Code why Smith’s FOIA request could not be fulfilled. 23. On Thursday, May 25, 2017, Smith sent a second FOIA request to Garretson. 24. The second FOIA request is similar to the first one, and is attached as Exhibit “C.“ 25. The second request was sent to Garretson via U.S. Mail. 26. Bither on Thursday, June 1 or Friday, June 2, Smith received an envelope addressed to him stamped May 31 with Garretson’s return address. 27. The envelope contained the following; A. Smith’s check wrapped in a plain white piece of paper. B. Smith’s original second FOIA request. 28. A copy of the envelope is attached as Exhibit “D.” 29. As with the first one, no explanation was provided by Defendants and/or their agents as to why Smith's check was returned or why they could not fulfill his FOIA request 30. On Saturday, June 3, 2017 Smith send a third FOLA request to Garretson. In it, he gave her a deadline of Friday, June 9 to either provide the documents he requested or a reason why she couldn’t. 31. The third, and final, FOLA request is similar to the first, and second ones, and is attached as Exhibit “E.”32. The third, and final, request was sent not only to Garretson, but also, among others, Scottie V. “Chip” Westfall II (“Westfall”), the current Commission president, and Shannon Jones Johnson (“Johnson*), the prosecuting attomey of Calhoun County, either via U.S. Mail and/or email. 33. As of the filing of instant suit - which is 38 days beyond the deadline he gave - Smith has received no response from Defendants and/or any of their agents, including Johnson, who, by statue is the legal advisor to all county agencies, to his third, and final, FOIA request. 34, Though the FOTA law is silent as to the number of requests one has to make on a records custodian before seeking relief, the Defendants have exceeded by 57 the days they were required to respond to Smith’s first FOIA request. 35. The failure of Defendants to provide Smith the information in his May 4, 2017 FOLA request has prompted the instant suit. ARGUMENTS 36. Smith restates the allegations in paragraphs 1-35. 37. 29B-1-3(1) of the FOIA law specifically states: “Every person has a right 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.”38. Both prior and subsequent to the one he made with Garretson on May 4, 2017, Smith has received counsel-of-record queries in response to either a verbal or written FOIA request from multiple circuit clerks including those in Kanawha and Monongalia counties. 39. Asa result of their non-reply, Defendants have failed to provide a reason under 29B- 1-4(1) as to why Smith cannot see the information first requested on May 4, 2017. 40. Instead, Defendants have deliberately, maliciously, and intentionally failed to respond to any of Smith’s FOIA requests. 41, 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 that the Defendants’ refusal to disclose the records requested by Smith is unlawful; 2. grant injunetive relief, enjoining Defendants from withholding records without justification, and order production, at Defendants’ cost, to Smith of records improperly withheld; 3. grant injunctive relief compelling Defendants to notify the West Virginia Secretary of State's Office of the final outcome of this civil action; 4, grant a permanent injunction requiring the Defendants to undergo training for better understanding of W. Va. Code § 298, and implement a plan for more timely, and accurate responses to FOIA requests;5. grant a permanent injunction requiring Defendants, in accordance with W. Va. Code 29B, as amended in 2015 by H.B. 2636, to establish a “reasonable fee” for duplication of records made with Defendants’ devices not to exceed $.05/page. 6. award Smith his costs, and reasonable attorney fees - if applicable - incurred in this action, as required by W. Va. Code 29B-1-7; and 7. grant Smith such other relief as the Court may deem jpist and proper. 5312 MacCorkle Ave, 8.W. #238 South Charleston, WV 25309 (304) 610-2031 mslmediaine@yahoo.com STATE OF WEST VIRGINIA COUNTY OF PUTNAM The forggoing instrument was acknowledged before me this Ban day of » 20)7., by My Conmission expires 28 January 2018. ysss»ay»»maoonrn0m000z 4 Ms ., OFFICIAL SEAL SS star Gr WeEy VIRGINIA yy x non W TRLpd 4 May 2017 Shelia Garretson, clerk Calhoun Circuit Clerk's Office Calhoun County Courthouse P.O. Box 266 363 Main St./Suite 205, Granstville, WV 26147 Dear Mr. Garretson: Pursuant to the West Virginia Freedom of Information Act (W. Va. Code 29B-1- ALet. seq.), I request access to the following: +A print-out of all cases filed in Calhoun Circuit Court from Jan. 1, 2001 to Dec. 31, 2016 where the following attorneys are listed as the counsel of. record: 1. Ashley, Anita Harold 2. Moore, David 3. Titus, Morton As required by the Act, I expect your response within five business days. If you chose to deny all or part of my request, please cite the specific part of the Code for your denial, Enclosed, you will find a check for $5 to initiate a query in accordance with this Tequest. Once the returns are properly identified, I agree, pursuant to the Act, to reimburse your office a reasonable fee “calculated to reimburse it for its actual Cost in making reproductions of records” not to exceed $.05/page. Tcan be contacted at one of the addresses or telephone number below. I thank you, Ms. jCarretson, for taking the time to field my request, and look forward to your reply. (ce J. SmithEnclosure 5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (681) 233-3382 mslmediainc@yahoo.com Sent via e-mail and U.S. Mailck ly 4560550 ana Ztztor-soese GOES AM NOLSTTUVHO HLNOS | eee "MS “SAV TDRIOOOWNN ZHES | ee ll TT Wek ATOZ. Abt GO OSE Auli ROLSATWHO I ‘Aauneg unoyyeg 30 uNOD WEN Sueig "WOsTeHeD "EONSWO a 25 May 2017 Shelia Garretson, clerk Calhoun Circuit Clerk’s Office Calhoun County Courthouse P.O. Box 266 363 Main St./Suite 205 Granstville, WV 26147 Dear Ms. Garretson: Pursuant to the West Virginia Freedom of Information Act (W. Va. Code 29B-1- Let. seq.), I request access to es to the following: © A print-out of all cases filed in Calhoun Circuit Court from Jan. 1, 2001 to Dee. 31, 2016 where the following attorneys are listed as the counsel of record: 1, Ashley, Anita Harold 2. Moore, David 3. Titus, Morton THIS IS A SECOND REQUEST FOR INFORMATION. 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 specifie part of the Code for ‘your denial, Enclosed, you will find a check for $5 to initiate a query in accordance with this request. Once the returns are properly identified, I agree, pursuant to the Act, to reimburse your office a reasonable fee “calculated to reimburse it for its actual cost in making reproductions of records” not to exceed $.05/page. I can be contacted at one of the addresses or telephone number below. I thank you, Ms. Garretson, for taking the time to field my request, and look forward toce: R. Craig Tatterson, chief judge, 5% Judicial Circuit Enclosure 5312 MacCorkle Ave., S.W. #238 South Charleston, WV 25309 (681) 233-3382 mslmediaine@yahoo.com Sent via e-mail and U.S. Mail69-295/515 gay L. Smith 1635 H Hureans, WV 25526 |) gp puma Query Bane Esq. \ ot Se5026S5ei/ 250550" 20NO H ZtZtot-sorsz 60CSz ANA NOLSTTHVHD HANOS Bete “Ws “BAW TDIMODOWN ZS HLIWS ‘fT SONSEMYT\E4 3 June 2017 Shelia Garretson, clerk Calhoun Circuit Clerk’s Office Calhoun County Courthouse P.O. Box 266 363 Main St./Suite 205 Granstville, WV 26147 Dear Ms. Garretson: Pursuant to the West Virginia Freedom of Information Act (W. Va. Code 29B-1- 1,et. seq.), I request access to the following: « A print-out of all cases filed in Calhoun Circuit Court from Jan. 1, 2001 to Dee. 31, 2016 where the following attorneys are listed as the counsel of record: 1. Ashley, Anita Harold 2. Moore, David 3. Titus, Morton Enclosed, you will find a check for $5 to initiate a query in accordance with this request. Once the returns are properly identified, I agree, pursuant to the Act, to reimburse your office a reasonable fee “calculated to reimburse it for its actual cost in making reproductions of records” not to exceed $.05/page. THIS IS A FINAL DEMAND FOR INFORMATION. FAILURE TO PROVIDE THE REQUESTED DOCUMENTS BY FRIDAY, JUNE 9 COULD RESULT IN, AMONG OTHER THINGS, THE COUNTY INCURRING UNNECESSARY LIABLITY. Ifyou chose to deny all or part of my request, please cite the specific part of the Code for your denial. I can be contacted at one of the addresses or telephone number below. J. Smithce: R. Craig Tatterson, chief judge, 5 Judicial Circuit Scottie V. “Chip” Westfall II, president, Calhoun County Commission Shannon Jones Johnson, proseentor, Calhoun County Prosecuting Attorney's Office Michal Paplomatas, PAC/Worker' Compensation Specialist, West Virginia Counties Risk Pool Enclosures 2 5312 MacCorkle Ave., 8.W. #238 South Charleston, WV 25309 (681) 233-3382 msimediaine@yahoo.com Sent via e-mail and U.S. MailIR THE CIRCUIT COURT OF ( a h A COUNTY, WEST VIRGINIA CIVIL CASE INFORMATION STATEMENT ‘(Civil Cases Other than Domestic Relation) Sart cus Sih Days to IG “Sherr Personal wk, WAG sie. Ze Case T. TYEOF CASE: oer Ci 1 Axption Mate Ligon (42 df MCR 26046) 1 Adminssve Agen Appeal CD astern {E1ci appeal fom Magis Cont DFR Aen CD nticemtcow Cri Pion Dower CO Ment ype Hates Comper Baroy Wit 1 overaas Dloter Caen Natenie ML JURY DEMAND: [1 Yes[]No CASE WILL BEREADY FOR TRIAL BY (Monee: __/ TV. 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