An attorney representing RISE West Virginia clients awaiting flood relief is suing the organization for taking seven months to provide documents sought in a public records request.
The Department of Commerce, which houses RISE, asked Kanawha Circuit Judge Tera Salango on Wednesday to dismiss the case because the plaintiff didn’t file 30-days notice with the state of his intent to sue, as is required by law.
Salango didn’t issue a ruling Wednesday.
The hearing is the latest episode in the troubled history of RISE, a federally funded $150 million program that has built 51 houses (almost exclusively mobile homes) in the three years since the deadly June 2016 floods.
Bren Pomponio, a lawyer with Mountain State Justice, a nonprofit legal advocacy organization, is representing RISE clients awaiting their promised relief. On Nov. 8, 2018, he filed a Freedom of Information Act request with Commerce seeking documents related to monies received and spent by RISE and West Virginia Volunteer Organizations Active in Disaster, its staffing, and its guidelines and regulations in connection with the construction program.
On Nov. 19, 2018, a staffer responded to his request seeking “additional time to substantively reply to this request.”
Having not received any documents, Pomponio filed a similar request March 19, 2019 without mentioning the first one. It never yielded a response. In June, Pomponio filed a lawsuit in Kanawha County Circuit Court on the same day Commerce furnished the requested documents.
“This litigation could have been avoided if the defendant abided by FOIA and had not waited seven months to respond,” said Sean Cook, a lawyer representing Pomponio. “There are reasonable extensions that can occur, but seven months is unreasonable.”
Representing Commerce, Kelli Talbott, from the state Attorney General’s Office, said both state code and case law require plaintiffs who sue the state to file 30 days’ advance notice. She cited a recent high-profile case in which Circuit Judge Charles King dismissed a suit against Gov. Jim Justice, filed by Delegate Isaac Sponaugle, D-Pendleton, for failing to file such advanced notice.
She said if such notice had been provided, the documents would have been furnished without a lawsuit.
“Had pre-suit notice been filed in this case, we wouldn’t be here today,” she said.
Because Commerce ultimately produced the requested documents, the only issue for Salango to rule on is whether the state must pay the plaintiff’s attorney fees. However, after the hearing, Pomponio said he is still investigating RISE and where its money is going. He said he expects he will file more FOIAs, and that they shouldn’t take seven months to run their course.
Wesley White, deputy cabinet secretary for Commerce, declined an interview.
Salango requested proposed orders from both parties by the end of the week before issuing her ruling.