West Virginia

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.

3. Applications.

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a. Bodies receiving public funds or benefits.

The Freedom of Information Act applies to "any other body . . . which is primarily funded by [a] state or local authority." In 4-H Road Community Association v. W. Va. University Foundation, 182 W. Va.

B. Any other statutory requirements for closed or open meetings.

A few specific statutes mandate certain proceedings be open or closed to the public. As in the case of specific public record statutes, discussed in the preceding section of this outline, these provisions may create a greater right of public access to particular proceedings.

1. State.

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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.

10. Police techniques.

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3. Grand jury

Although there are no West Virginia cases directly on point addressing a reporter's privilege in the grand jury context, nevertheless, the Hudok court acknowledged that a reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation[.]" The Hudok court cited with approval the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct.

4. Requirements or prohibitions regarding advance payment.

The Freedom of Information Act neither requires nor specifically prohibits the advance payment of fees.