West Virginia

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.

1. Voter registration records.

While there are no cases construing FOIA in the context of voter registration records, such records have been routinely made available to the public upon request.

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.

3. Use of records.

It is not necessary for a requester to indicate the use intended for the documents requested. It may, however, be advisable in some circumstances to indicate the underlying purpose if it is one that the public body receiving the request is likely to endorse or at least toward which the agency will have no negative reaction.

F. Recording/broadcast of meetings.

The 1999 amendments to the Open Meetings Act add a provision regarding the allowance of radio and television recordings. That section provides:

(a) Except as otherwise provided in this section, any radio or television station is entitled to broadcast all or any part of a meeting required to be open.

11. Other penalties.

Imprisonment in the county jail for not more than twenty days is an alternative sanction that, in lieu of or in addition to a fine, may be imposed in the courts' discretion. W. Va. Code § 29B-1-6. Once a circuit court has ordered production of documents or disclosure of information, noncompliance with the order of the court may be punished as contempt of court. W. Va. Code § 29B-1-5(2).

2. Police blotter.

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

B. Whose privilege is it?

No case or statute in West Virginia addresses whether the privilege belongs to the source, the reporter, or both, and no case or statute addresses whether the privilege belongs to the reporter, the employer, or both. On the other hand, both reporters and their employers (i.e., media organizations) have successfully asserted the privilege in West Virginia.

3. Are certain records available for inspection but not copying?

Under the literal terms of the FOIA, any "public record" subject to inspection also may be copied. However, the statute recognizes a narrow exception that permits public agencies to deny all access to certain records that could be damaged by handling. W. Va. Code § 29B-1-4(6). It seems certain that if particular documents could be inspected, but not copied, without the threat of damage, the courts would permit this approach as the least restrictive alternative.