U.S. Press Freedom Tracker

WSAZ-TV publishes government document after judge ends protective order

Incident Details

Date of Incident
July 14, 2023

Prior Restraint

Status of Prior Restraint
Struck down
Mistakenly Released Materials?

A portion of the decision, filed Aug. 28, 2023, lifting the temporary restraining order that held West Virginia television station WSAZ couldn’t publish a government document it received by mistake.

— Screenshot
July 14, 2023

West Virginia television station WSAZ, which had sued a state agency over access to documents that included a contentious draft letter terminating a senior official, was freed to publish the letter on Aug. 28, 2023, after Kanawha County Circuit Judge Kenneth Ballard lifted a temporary protective order.

In May 2022, WSAZ sued to access documents from the West Virginia Department of Health and Human Resources after the department had rebuffed an earlier Freedom of Information Act request. The station was, in part, seeking records related to the termination of the agency’s deputy secretary by its top administrator.

Ballard ruled in favor of the station, requiring the release of the requested documents, with the exception of the draft termination letter itself. But when the agency sent a PDF with hundreds of pages to the station in July 2023, it inadvertently included the letter. When the agency learned of the error, it asked that the letter be deleted. The station refused to delete it, so the agency asked the court to prevent its publication.

On July 14, Ballard issued a temporary protective order barring disclosure of the letter’s contents. Ultimately, however, he determined a permanent bar would represent an unconstitutional prior restraint, so in August he lifted the protective order, allowing the station to publish the letter.

“The U.S. Supreme Court has repeatedly held,” the judge wrote in his decision, “that the news media has a First Amendment right, absent the government’s demonstration of a ‘state interest of the highest order,’ to publish information about a matter of public concern that it has lawfully obtained, regardless of whether the news media’s source violated the law in providing that information.”

Claire Magee Ferguson, an attorney with WSAZ’s parent company Gray Media, told the U.S. Press Freedom Tracker, “Judge Ballard’s ruling underlined that our daily pursuit of public information is a necessary, worthy fight. WSAZ and Gray Media were thrilled to receive judicial confirmation that the ‘overriding interest of justice’ inevitably sides with free speech.”

The agency did not respond to requests for comment from the Tracker.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].