FISCAL NOTE

Date Requested: February 10, 2021
Time Requested: 04:45 PM
Agency: Ethics Commission
CBD Number: Version: Bill Number: Resolution Number:
1446 Introduced HB2224
CBD Subject:


FUND(S):

General fund and Special fund

Sources of Revenue:

General Fund Ethics Commission has a General and a Special fund.

Legislation creates:

Increases Existing Expenses, Creates New Program



Fiscal Note Summary


Effect this measure will have on costs and revenues of state government.


This bill would allow persons unlawfully denied access to public records to file a complaint with the Ethics Commission pursuant to the Ethics Act (Chapter 6B). Currently, the Freedom of Information Act (Chapter 29B) provides that “any person denied the right to inspect the public record of a public body may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.” The bill also modifies the Freedom of Information statute by allowing the filing of a complaint with the Ethics Commission for unlawful denial of access to records. It also adds provisions regarding electronic records, which do not fiscally impact the Ethics Commission. The Ethics Commission is unable to predict with certainty the number of complaints which may be filed with the Ethics Commission against a public agency’s records custodian who is alleged to have intentionally violated the Freedom of Information Act. The Ethics Commission has made a good faith effort to estimate the amount of personnel and resources which will be required to fulfill its new duties if the Bill is passed. The Ethics Commission has an Executive Director, General Counsel, two staff attorneys, and two administrative assistants. If the bill passes, it will increase the workload of the staff although the extent of the increase cannot be predicted with certainty. If a significant number of FOIA complaints are filed and investigated, this could require the Commission to hire an additional (part-time) attorney and a paralegal. The Commission’s office space could accommodate two additional employees. In addition, the Commission would incur increased charges for additional computer file space for FOIA complaints, and it would need to purchase additional computers for new employees.



Fiscal Note Detail


Effect of Proposal Fiscal Year
2021
Increase/Decrease
(use"-")
2022
Increase/Decrease
(use"-")
Fiscal Year
(Upon Full
Implementation)
1. Estmated Total Cost 0 99,688 96,100
Personal Services 0 94,900 94,900
Current Expenses 0 4,788 1,200
Repairs and Alterations 0 0 0
Assets 0 0 0
Other 0 0 0
2. Estimated Total Revenues 0 0 0


Explanation of above estimates (including long-range effect):


Personal Services would increase by $94,900 per fiscal year starting FY22. This is the cost of $35,000 for a part-time attorney and $38,000 for a full-time paralegal, plus 30% for employer premiums for health insurance and employer’s retirement contribution. Expenses would increase by $3,588 in 2022 to purchase two laptop and two desktop computers (for the two new employees). Under the statewide contract, a desktop costs $735, and a laptop costs $1,059. Additional computer access and storage expenses would increase by $50 per month/per employee, totaling $1,200 per year.



Memorandum


The Bill is ambiguous because it states that the Ethics Commission is to determine whether a custodian had just cause or a good faith belief that a FOIA exemption applied, in W. Va. Code § 6B-2-5d(f)(2), but then states in subsection (g) that the Commission lacks authority to determine what documents are exempt. W. Va. Code § 6B-2-5d. Freedom of Information Act. (f) For a custodian of records to be held to have intentionally violated the provisions of §29B-1-1 et seq. of this code, the custodian must have: (1) Failed to initially respond to a records request within the statutorily prescribed period, or failed to have provided records or maintained communication with the person requesting records: Provided, That the person requesting records must have made multiple efforts to receive the records before a failure to respond can be deemed intentional; (2) Intentionally withheld records without having just cause pursuant to an exemption, or a good faith belief that an exemption applied, from the person requesting records; or (3) Failed to exercise good faith in responding in a timely manner to the request. (g) Nothing in this section shall be construed to grant the Ethics Commission authority to determine what documents or information are exempt from disclosure pursuant to §29B-1-1 et seq. of this code.



    Person submitting Fiscal Note: Kimberly B. Weber
    Email Address: kimberly.b.weber@wv.gov