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.

9. Availability of court costs and attorneys' fees.

In 1993 the Open Meetings Act was amended to permit the courts to order the governing body to pay the "necessary attorney fees and expenses" of persons bringing suit under the statute if (a) the court entered an order compelling compliance or enjoining noncompliance with the statute, or annulling a decision made in violation of the act; and (b) the court finds the governing body "intentionally violated the provisions" of the statute. W. Va. Code § 6-9A-6(7).

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 does not require any formal written notice be given before a public agency may go into executive session. Before a regular, special or emergency meeting can be closed, the presiding officer of the governing body must first identify the authorization under the statute for holding an executive session and present the issue to the governing body and to the general public. The governing body must approve of the closure by majority vote. W. Va. Code § 6-9A-4.

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.

4. Issues the court will address:

The FOIA confers on the court "jurisdiction to enjoin the custodian or public body from withholding records and to order the production of any records improperly withheld from the person seeking disclosure." W. Va. Code § 29B-1-5(2). The statute also authorizes the court to enter a declaratory judgment that establishes patterns for future access.

1. Character of exemptions.

(This section is blank. See the subpoints below.)