West Virginia

b. Mandatory or discretionary?

The Freedom of Information Act simply provides that nineteen specified "categories of information are specifically exempt from disclosure under the provisions of [the FOIA]." W. Va. Code §  29B-1-4. If the issue of agency discretion to release documents that fall within one of the nineteen FOIA exemptions were directly presented to the court, it is likely that it would follow the lead of the federal courts whose interpretation of the federal FOIA has held the exemptions to be discretionary rather than mandatory.

C. Obtaining transcripts


West Virginia

4. For ruling on future meetings.

Courts can grant prospective relief enjoining a governing body of a public agency from proceeding as it has in the past and ordering the public agency to conduct its future meetings in conformity with the Open Meetings Act. W. Va. Code § 6-9A-6.

C. Testimony vs. affidavits

Although the rules in West Virginia do not specify whether a sworn affidavit may take the place of in-court testimony, litigants have been known to accept such affidavits in return for dropping the personal appearance requirement of the subpoena, especially when the subpoena was issued simply confirm that an article was true and accurate as published. Thus, it usually is helpful to inquire of the subpoenaing party's counsel whether they will accept an affidavit in lieu of a personal appearance, as oftentimes such an offer will be accepted.

b. Notice.

(This section is blank. See the subpoints below.)

b. Need to address fee issues.

The statute does say that furnishing copies is one permissible response. It also indicates that the public body may establish fees to reimburse it for the actual cost of reproduction. Does this mean that a public body may respond with copies and a bill for reproduction costs? This should be allowed only if copies are requested and the fees understood. If there is any doubt, the public body should offer the option of the second response, and make known the time and place at which the person may inspect and copy the records. Most persons probably will prefer this latter course.

5. Private matter on private e-mail

There have been no court decisions indicating how private records contained in private e-mail archives should be treated. However, based upon the West Virginia Court’s holding in Associated Press v. Canterbury, supra. it is likely that records of discussion of private matters on private e-mail will fall outside the law’s disclosure requirements because they fail to fall within the definition of  West Virginia FOIA’s definition of “public record.”

3. Pro se possibility, advisability.

It is possible for such a petition to be filed pro se (without the assistance of a lawyer), although the Act does not address this situation in particular. Whether filing a petition pro se is advisable depends upon the complexity of the facts involved and the knowledge of the person filing the petition. The advisability of proceeding without a lawyer is discussed in more detail in the section above on the Freedom of Information Act.

5. Addressing mootness questions

West Virginia courts have not had occasion to address "mootness" as an issue when a trial or grand jury session for which a reporter was subpoenaed has concluded.