West Virginia

B. Dependency

Overview

West Virginia

V. PROCEDURE FOR OBTAINING RECORDS

This section addresses the most frequently asked question under the Freedom of Information Act: "How do I file an FOIA request?"

A. Newspaper articles

A newsperson is not required to testify in court that a particular article actually appeared in the newspaper in order to authenticate the article. Pursuant to Rule 902(6) of the West Virginia Rules of Evidence, newspapers are self-authenticating and therefore, testimony by the author/reporter is unnecessary to authenticate the article for admissibility purposes. Therefore, if a reporter is subpoenaed for that purpose, the subpoena should be quashed easily.

(2). Commission or independent agency.

(This section is blank. See the point above.)

2. What physical form of records are covered?

The Freedom of Information Act applies to any conceivable physical form of "documentary materials":

'Writing' includes any books, papers, maps, photographs, card, tapes, electronic mail, recordings or other documentary materials regardless of physical form or characteristics.

(6). Penalties and remedies for failure to give adequate notice.

Although the Open Meetings Act does not spell out the notice requirements for most public bodies, it does include a very specific penalty for the failure to provide adequate notice in accordance with the statute. Where an "adversely affected party" files a petition challenging the public agency's action, any court of competent jurisdiction "may invalidate any action taken at any meeting for which notice did not comply" with the notice requirements of the Act. W. Va. Code §  6-9A-3.

2. Informal telephone inquiry as to status.

Unless the agency has clearly indicated its intention to refuse the request, however, an informal telephone inquiry regarding the status of the request is advisable if the response is not received within the time limit. If the initial request was oral, or was made to someone other than the official "custodian" of the records, a written inquiry directed to the custodian — including a reminder that you will seek reimbursement for attorneys' fees if the agency's failure to respond necessitates legal action — would be preferable.

3. Nature of appeal

There is no "appeal by right" to the West Virginia Supreme Court of Appeals; the acceptance of an appeal by that court is entirely discretionary. A party may seek extraordinary relief in the Supreme Court by filing a Petition for Writ of Prohibition or for Writ of mandamus to preclude enforcement of the circuit court's ruling or to compel the court to rule in the correct manner. Like a Petition for Appeal, Petitions for extraordinary writs, such as Prohibition or Mandamus are discretionary.

1. Civil

In most civil cases, the level of protection afforded the reporter in West Virginia is quite good. As stated by the state Supreme Court of Appeals in Hudok v. Henry, the party seeking to compel information from a reporter generally must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." Thus, the burden on a party in a civil case seeking information from a non-party reporter is very high.