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Judge nixes motion to dismiss public records lawsuit against RISE

It took seven months and a lawsuit for Bren Pomponio to obtain basic records from a troubled flood recovery program the state administers.

On Monday, Kanawha Circuit Judge Tera Salango rebuked the Department of Commerce’s motion to dismiss that lawsuit on a technicality.

Lawyers representing the state Department of Commerce, which houses RISE West Virginia, the $150 million federally funded flood relief effort, argued Pomponio failed to give the state 30 days notice of his intent to sue the state, as is often required.

However, Salango found RISE’s failure to respond to the lawsuit “unjustifiable” and that Pomponio was right to sue. She said the prior warning does not apply to FOIA suits.

“State agencies are required to respond to [FOIA] requests within five days of receipt,” she said. “Here, the defendant failed their statutory duty to respond to the plaintiff’s requests until seven months after the initial request was made, and only after learning that the instant lawsuit had been filed.”

At this point, the victory amounts to quibbling — Pomponio has already received the records, and his attorney for the case said the only remaining effort is to compel the state to cover legal fees.

However, Pomponio is representing several clients who were victims of the 2016 floods and clients of RISE — a program mired in bureaucratic malaise from the state and frustration for low-income homeowners who signed contracts for relief.

He said after a hearing last month he would expect to file more FOIA requests with RISE, and they shouldn’t take seven months a piece. State law requires a response to a request within five days, though agencies can claim additional time in their response or deny a request and claim a specific, allotted exemption.

The federal government authorized RISE to begin spending in February 2018. Since then, the program has built 55 homes — 51 of which are mobile homes — and has 22 mobile home replacements, 16 reconstruction projects and three demolitions in progress, according to a Friday news release. There are 403 remaining cases.

The U.S. Department of Housing and Urban Development — which funds RISE — continued a trend in July of categorizing RISE as a “slow spender,” meaning it’s not on pace to use all its funds by the target closeout date of Dec. 30, 2023.

Sean Cook, a lawyer who represented Pomponio in the FOIA case, said he’s glad to see a court declare that Commerce cannot “ignore” its legal responsibilities.

“The Court’s ruling sends a message to all public entities that government transparency is not a choice but a clear legal requirement,” Cook said.

Andy Malinoski, a Commerce spokesman, said attorneys for the state are currently reviewing the order and “determining possible options for appeal.”

Reach Jake Zuckerman at

jake.zuckerman@wvgazettemail.com, 304-348-4814 or follow

@jake_zuckerman on Twitter.

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