Who should judge shock

by Jamison Shabanowitz, Laurence E. Richardson Legal Intern for 2013

Earlier this month, the public learned of the communication between the Virginia Attorney General’s office and the lawyers representing two gas companies, EQT Production and CSX Gas, related to the battle over royalties for methane gas in Appalachian coal seams. Bristol’s Herald Courier has posted the relevant emails on their website.

Virginia’s Freedom of Information Act made this possible.  Every public office in the Commonwealth (except for the State Corporation Commission, which the Virginia Supreme Court says plays by its own rules) holds the discretionary power to apply FOIA exemptions to documents related to public business (with one exception related to criminal information “under a promise of anonymity”).  Even if an exemption precluded the emails’ release, the Attorney General’s office can and did use their discretion to release the communication.

This week, in its formal objection to U.S. Magistrate Judge Pamela Meade Sargent’s recommendation to U.S. Federal District Court to accept the class action, EQT addressed Judge Sargent’s characterization of its communication with state lawyers:  “[The letters] should not ‘shock’ anyone.”

EQT’s take on Judge Sargent’s “gratuitous personal observation” is in fact gratuitous.  The exact exchanges between the State and the gas company lawyers are already open to the public. 

Lawyers and politicians:  Let us decide for ourselves whether the communication between the two entities is “shocking” and we will let you figure out how to fairly settle royalties for methane gas in Appalachia instead of engaging in a public relations battle over the meaning of “shocking.”

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