Nonprofit’s lawsuit seeking WVU documentation on China energy agreement heading to court

CHARLESTON — More than a year after it was announced, details of West Virginia’s investment agreement with China Energy remain a mystery, but the court system could bring the arrangement to light.

Appalachian Mountain Advocates, a nonprofit law firm, filed a lawsuit  last summer for documents from the WVU Energy Institute, which was heavily involved with the deal.

Appalachian Mountain advocates sought any agreements West Virginia officials entered into with the China Energy Investment Corp. in 2017, any list of energy projects  West Virginia provided to China Energy and correspondence that Energy Institute staff sent or received that year that included the words “China” and either “energy,” “coal” or “gas.”

WVU filed a motion to dismiss the lawsuit. Appalmad, as it’s shortened, is fighting. Both arguments are to be heard at 1:30 p.m. today in the courtroom of Monongalia Circuit Judge Russell Clawges Jr.

West Virginia officials made a splash  Nov. 9, 2017, with the overnight announcement that then-Commerce Secretary Woody Thrasher was in Beijing to sign an enormous agreement.

The memorandum of understanding was said to be worth up to $83.7 billion.

When Thrasher returned, he and Gov. Jim Justice touted the deal but would not provide details or publicly share the memorandum.

Over the coming months, Thrasher was forced out and the investment  called into doubt.

But the fight to see details of the deal remains.

WVU wants the judge to dismiss the motion to make the documents public.

The university argues  the documents are protected by economic development privilege.

WVU contends the documents are actually the confidential possessions of the West Virginia Development Office.

WVU was sued because Quingyun Sun, of its energy institute, is also the governor’s assistant for China affairs at the Development Office.

The university also argues  Appalmad’s request is burdensome and isn’t specific enough.

“Because Plaintiff has refused to narrow its FOIA request, the university would be forced to review, segregate and, as necessary, redact more than 15,000 potentially responsive emails,”  lawyers for WVU wrote.

Appalmad claims WVU’s arguments are thin.

It said the university provided no Vaughn index, which is a description of documents being withheld along with justification of non-disclosure — “no affidavit, no testimony, no evidence whatsoever.

“This is simply not the way it is done: A public agency cannot parry the Act’s general disclosure requirement merely by pointing to the Code book.

“Rather, it must put forth affirmative, clear and convincing evidence to sustain an exemption.”

Applamad argued the university provides little support for its claim of an undue burden.

“The court has no way of knowing whether the university is double-counting emails sent to multiple Energy Institute staffers,” lawyers wrote.

Appalmad also contended that exemptions meant for economic development don’t apply to the university.

In part, that’s because the university doesn’t contend its primary responsibility is economic development.

“Because the pleadings alone demonstrate that the university is altogether ineligible for protection under the economic development privilege, judicial economy is best served by closing on that defense now.”

Led to an extreme, Appalmad contended, any entity that wanted to keep a document secret could just make sure the state Development Office is looped in.

“Under the university’s theory, the Development Office would become a clearinghouse for records that the government preferred hidden from the public,” wrote lawyers for Appalmad.

“Merely by copying the Development Office — or any of its employees — a state agency could transform a public record subject to the Act into a record ‘received by the Development Office’ and therefore immune to disclosure.”

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