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The West Virginia Freedom of Information Act does not explicitly mention the Attorney General's role in enforcement of the Act. The West Virginia Open Governmental Proceedings Act provides that "It is the duty of the attorney general to compile the statutory and case law pertaining to this article and to prepare appropriate summaries and interpretations for the purpose of informing all public officials subject to this article of the requirements of this article." W. Va. Code, § 6-9A-12. See, http://www.wvago.gov/pdf/OpenMeetingsHandbook2006.pdf .
The Open Meetings Act does not address the issue of the public's right to comment at public meetings. Section 6-9A-3 provides that "persons who desire to address the governing body may not be required to register more than fifteen minutes prior to [the] time the scheduled meeting is to commence." The statute does not explicitly provide a public right to comment and there are no West Virginia cases addressing this issue.
The 1999 amendments indicate that the official minutes of the executive session need not be made available to the public. W. Va. Code § 6-9A-5. If an agency makes an informal written record of a discussion held in a closed executive session, these notes also probably are exempt from the Freedom of Information Act. Op. Att'y Gen., July 17, 1986.
The Freedom of Information Act specifically authorizes declaratory and injunctive relief. These same remedies are available if the records are sought under a common law right of access or the constitutional open courts mandate, and the complaint should invoke all applicable bases for relief.
A discovery request may be denied where the breadth of the information sought would result in the production of material so cumulative as to be inadmissible at trial. State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Whether or not the cumulativeness of the material sought would be inadmissible at trial is in turn governed by Rule 403 of the West Virginia Rules of Evidence. Such determinations are usually left to the discretion of the trial court.
W. Va. Code § 29B-1-3(3) requires that copies of records that "exist in magnetic, electronic or computer form" be made "available on magnetic or electronic media, if so requested." There are no state Supreme Court cases where the application or interpretation of this requirement has been an issue. Agencies reportedly vary in their willingness to comply with this section. For instance, computerized census information to date has only been made available in hard copy.
As discussed previously, the open courts mandate of the state constitution provides a broad right of public access to judicial and quasi-judicial proceedings.
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