West Virginia

2. Does the law cover oral requests?

The FOIA requires a denial of a request for access to records to be in writing, but the request itself may be either oral or written. However, as Professor Neely notes, written requests often have practical advantages:

For evidentiary purposes a written request would prove useful in subsequent judicial review proceedings, if an oral request is denied or if refusal is anticipated at the outset. Additionally, a written request will establish precisely what is being requested for purposes of deliberation within the public body.

1. Sound recordings allowed.

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

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.

(2). Are minutes public record?

The minutes of open meetings are public records and must be made available to the public within a reasonable time after the meeting is held. W. Va. Code § 6-9A-5. Any tape recording made of the meeting also is a public record. Veltri v. Charleston Urban Renewal Authority, supra.

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.

C. Administrative appeal.

Unlike the federal FOIA, West Virginia's Freedom of Information Act has no provisions for administrative appeals. Since the request for records must be made to the agency's chief executive — "the elected or appointed official charged with administering a public body," W. Va. Code § 29B-1-3(2) — there usually is no practical avenue for informal administrative appeals.

C. Business and industry relations.

The Open Meetings Act permits executive sessions to be held to discuss "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision." (W. Va. Code § 6-9A-4(9)). This broad exception probably would extend to many discussions for attracting business to the state, especially considering the confidentiality accorded economic development under W. Va.

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.

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: