West Virginia

2. Description of each exemption.

The Open Meetings Act, as amended in 1999, specifically exempts twelve categories of information from its provisions. These exceptions, which are stated in much broader language than the exemptions under the Freedom of Information Act, permit public bodies to meet in closed executive session to discuss the following items:

I. How are fees for electronic records asessed?

Fees for electronic record request should be consistent with the fees that may be charged for reproducing records in a paper format. Thus, the limit on fees charged by public bodies should be the “actual cost of reproduction” of records in an electronic format. If the record is transmitted to the requester on a computer readable DVD or CD the charge should be no more than the cost of that medium to the government body.

1. Is the privilege waivable at all?

There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

a. Definition.

An executive session is "any meeting or part of a meeting of a governing body which is closed to the public." W. Va. Code § 6-9A-2(2). The Act specifies twelve topics that may be considered in such a closed session, and these are discussed later in this outline. No decision may be made in an executive session. W. Va. Code § 6-9A-4 (a).

2. Priority.

The FOIA confers priority on cases involving the denial of access to public records: "Except as to causes the court considers of greater importance, proceedings arising under [the FOIA] shall be assigned for hearing and trial at the earliest practicable date." W. Va. Code §  29B-1-5(3). Such a "priority" however, is left to the discretion of the trial court, which may consider other matters to be of greater importance.

K. Negotiations and collective bargaining of public employees.

There is no exemption for collective bargaining negotiations or discussions; this is not surprising because public employees in West Virginia are not authorized to engage in collective bargaining.

J. Election records.

Election records are subject to disclosure under the Freedom of Information Act. Additionally, several statutes specifically mandate particular records to be maintained as public records open to inspection. See W. Va. Code § 3-1-7 (clerk of county commission must keep a bound book recording all proceedings creating or changing precincts, or establishing or changing voting places or precincts); W. Va. Code § 3-6-9 (county commission must keep a complete record of all vote canvassing proceedings).

3. Other remedies

In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. Potentially, in a civil case where the journalist is a party and he refuses to comply with an order compelling disclosure of a source or other information, a remedy such as default judgment may be imposed by the court against the media defendant. There is no statute or caselaw, however, that allows a court to instruct a jury that there is a "presumption of actual malice" or a presumption that there is no actual source.

2. Purpose of request.

It is not necessary for a requester to indicate the purpose for a request. It may, however, be advisable in some circumstances to so indicate if that purpose is one that the public body receiving the request is likely to endorse.

A. Shield law statute

West Virginia has no statutory "shield" law. This likely is because there is a general acceptance of the state Supreme Court's articulation of the qualified reporter's privilege in Hudok v. Henry. In Hudok, the state Supreme Court explained the qualified privilege as follows: