West Virginia

5. Other.

The Open Meetings Act provides a practical limitation on challenges made to bond issues. If notice of the meeting at which the bond issue was finally considered was given at least ten days prior to the meeting by a Class I legal advertisement in a qualified newspaper having general circulation in the geographical area, then the bond issue will not be rendered void in a challenge by a citizen. W. Va. Code § 6-9A-6.

4. Standard of review

All questions or interpretations of law are subject to a de novo standard of review. Findings of fact made by a jury, or by a judge sitting as the finder of fact at trial, are reviewed under a "clearly erroneous" standard; however, factual findings made by a lower court (if any) in matters concerning the assertion of a reporters' privilege typically are derived from affidavits or pleadings, a de novo standard would apply to any such findings made by the lower court.

(1). Time limit for giving notice.

The Open Meetings Act requires that, except in emergencies, state executive agencies must give notice of their meetings "at least five days prior to the date of the meeting":

2. Criminal

In the only West Virginia criminal case discussing a reporter's privilege, State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997), the court held that a subpoena to a reporter in a criminal case is treated differently than a subpoena to a reporter in a civil case, at least when the subpoena comes from a criminal defendant. The court agreed that a qualified privilege still exists for reporters in criminal cases, but slightly lowered the standard for breaching the privilege because of the criminal defendants' Sixth Amendment rights.

c. Plea for quick response.

The Freedom of Information Act requires a response to all requests within five working days, and the request should ask that this time limit be met. If there is a particularly urgent need for the records, this should be explained and an expedited response requested.

A. Exemptions in the open records statute.

"Three cardinal rules must be remembered in any FOIA case regardless of which exemption is claimed to be applicable. First, the disclosure provisions are to be liberally construed. Second, the exemptions are to be strictly construed. Finally, the party claiming exemption from the general disclosure requirement . . . has the burden of showing the express applicability of such exemption to the material requested." Daily Gazette v. W. Va. Development Office, supra, Syllabus pts. 1 and 2 (citations omitted).

4. What issues will the court address?

In a judicial proceeding under the Open Meetings Act, the court will address any issue arising under the statute, including a request for an order in a particular pending meeting be open, establishing general rules concerning access to future meetings, and invalidating decisions made at illegal meetings. McComas v. Fayette County Board of Education, supra. The 1999 amendments create addition issues that a court may be called upon to address.