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 reporter's attorney should seek an order from the appellate court ordering the lower court to either grant the reporter's motion to quash and/or prohibiting the lower court from enforcing the subpoena or contempt citation. It is possible that the appellate court will order the trial judge to reconsider the issues at stake in light of the appellate decision, but there is nothing preventing the appellate court from making the decision itself.
No reported West Virginia case has addressed the use of the reporters' privilege to protect the identity of a source. However, the Hudok court concluded that the qualified privilege articulated therein applied equally to both confidential and non-confidential information obtained by the reporter in his/her newsgathering role.
The FOIA does not specifically apply to nongovernmental bodies whose members include governmental officials, unless the body "is created by state or local authority or . . . is primarily funded by the state or local authority." W. Va. Code § 29B-1-2(3).