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CHARLESTON, W.Va. -- West Virginia Supreme Court justices are being asked to overturn a lower court ruling that said the state's open records law applies only to documents created by government agencies.

If allowed to stand, the earlier decision by Jefferson Circuit Judge David Sanders would greatly erode the public's right to know under the state Freedom of Information Act, West Virginia University law professor Pat McGinley told the court.

"When you look at the over-arching purpose of the West Virginia FOIA, it is to disclose as many records as possible," McGinley told justices during a Wednesday oral argument.

McGinley and Charles Town lawyer Stephen Skinner represent The Shepherdstown Observer, a newspaper that sued to try to gain access to petitions asking for a vote to overturn a new Jefferson County zoning ordinance.

Jefferson County Clerk Jennifer Maghan turned down the newspaper's request, saying that the petitions did not fall under the West Virginia FOIA's definition of a public record.

Sanders agreed, writing in an August 2009 ruling, "Because the records requested were not prepared by the public body, they do not qualify as public record within the meaning of the Freedom of Information Act."

Under West Virginia law, the definition of a public record "includes any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body."

McGinley told justices that the word "includes" in the definition was intended to enlarge, rather than narrow, the scope of information that would be considered public records subject to FOIA disclosure.

"It is simply preposterous to assume the Legislature intended for the WVFOIA's definition of 'public record' to drastically curtail the scope of public access to important records in government files because they were not 'prepared' by a public body," McGinley and Skinner said in a court brief. "Such a construction of the statute would have a devastating impact on the public's right to information about the conduct of the public's business."

Stephanie Grove, assistant Jefferson County prosecutor, argued that the definition of public record is not so broad, and that the petitions in question don't qualify.

"The petitions were not required to be submitted or recorded as public records," Grove wrote in her legal brief. "Nor was the petition a document used to facilitate the daily business of the governing body."

Skinner told justices that the U.S. Supreme Court had ruled in June on a similar case, holding that citizens who sign such petitions do not generally have a constitutional right to keep their names secret. Skinner said the case was "almost exactly on point."

"It basically takes the issue out of our hands," he said.

During oral arguments Wednesday, Chief Justice Robin Davis repeatedly asked lawyers if ruling in the Observer's favor would conflict with the court's November 2009 ruling that sealed from public scrutiny some e-mail messages between former Supreme Court Justice Elliott "Spike" Maynard and Massey Energy CEO Don Blankenship.

McGinley said it would not and that the two cases were very different. Grove said she was not familiar with the Maynard e-mail case, which The Associated Press filed to try to obtain the messages.

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.