E-mail messages are treated the same as any other records under the West Virginia Freedom of Information Act; that is, if they are public records, they should generally be released.
A case pending before the West Virginia Supreme Court will determine whether e-mail exchanged between a supreme court justice and a party in a case before the court are public records under the FOIA. The judiciary is subject to West Virginia’s FOIA.
Electronic messages are legally treated in the same way as other records in terms of retention and back-up. However, there have been no cases in which the meaning of the retention section of West Virginia law has been judicially defined, so it is not certain that a “record” would include electronic messages. W.V. Code § 5A-8-3. If electronic messages are included within the definition of “record”, then they are subject to the same preservation requirements as paper documents. W.V. Code § 5A-8-4, and W.V. Code § 5A-8-17.