The Federal Trade Commission is siding with West Virginia Attorney General Patrick Morrisey's effort to block the release of documents related to the merger of Cabell Huntington Hospital and St. Mary's Medical Center.
An FTC lawyer wrote to Kanawha Circuit Judge Tod Kaufman last week, saying that documents provided to Morrisey's office by the federal agency are "protected from disclosure" under U.S. and West Virginia laws.
A lawyer for the company seeking the records argues the federal government shouldn't be dictating how Morrisey's office handles requests for public records.
"Our attorney general, as a vigilant watchdog against federal overreach, has lamented on previous occasions those instances where states are left with no option but to acquiesce to federal demand," Carte Goodwin, a lawyer for Steel of West Virginia, told Kaufman at a hearing Friday. "That's precisely what the Federal Trade Commission is asking the state attorney general to do here: dictating to the sovereign state of West Virginia how it should apply its public records laws to its public. They shouldn't be allowed to do it."
Kaufman is reviewing in private 349 documents that Morrisey has refused to release for more than a year. The judge expects to decide this week whether Morrisey must release all or any of the records.
The Attorney General's Office delivered three banker's boxes containing the documents to Kaufman's courtroom on Friday. Kaufman scheduled an emergency court hearing the same day to discuss the FTC's objections to releasing some of the records.
The Federal Trade Commission and Morrisey's office investigated the proposed hospital merger. Morrisey signed off on the deal last year
In the FTC's letter, the agency's acting general counsel, David Shonka, told Kaufman that Morrisey's office "certified that the material would be maintained in confidence and used only for official law enforcement purposes."
Morrisey's office assured the FTC it would not disclose the "highly confidential" documents without the federal agency's OK, according to Shonka and Morrisey aides.
"Those documents were only obtained because they were provided either directly to our office or to the Federal Trade Commission for use in the investigation," said Assistant Attorney General Steven Travis. "They were not documents just sent to us willy-nilly. They were documents prepared and designed to aid in the investigation."
Steel of West Virginia requested documents about the hospital merger under the state Freedom of Information Act in September 2015. The company sued Morrisey's office after he refused to release them.
"This is a public records case regarding a public agency, a public custodian's obligations to turnover public documents when asked to do so," Goodwin said.
Morrisey's lawyers said the office could withhold the documents about the merger because the correspondence was sent while Morrisey was leading an antitrust investigation.
"The facts gathered as part of any antitrust investigation are not public," Travis said at Friday's hearing. "The documents that have been withheld from production were documents either generated or provided to our office by one or various sources for use explicitly for the investigation of the proposed merger of Cabell Huntington Hospital and St. Mary's."
Kaufman previously ordered Morrisey's office to provide an index of the 349 records - along with a brief description of each document. The index was filed under seal.
On Friday, Kaufman instructed Travis to identify each document in the index that the FTC doesn't want the state to release. The FTC said some of the documents include "trade secrets."
Goodwin said Morrisey's office could redact, or black out, such confidential information and still release the documents.
"He can't hold one 50-page document because there's one trade secret on page 47," Goodwin said.
Steel of West Virginia opposes Cabell Huntington Hospital's acquisition of St. Mary's, asserting the merger will drive up health care costs and reduce the quality of patient care.
St. Mary's Medical Center and insurer Highmark West Virginia also sent letters to Kaufman last week, asking him not to order Morrisey's office to release the merger documents. Highmark has filed a motion to intervene in the public records dispute. St. Mary's has said it plans to do the same.
Reach Eric Eyre at ericeyre@wvgazettemail.com, 304-348-4869 or follow @ericeyre on Twitter.