West Virginia

E. Confidential and/or non-confidential information

The Hudok court concluded that the reporters' qualified privilege applied equally to both confidential and non-confidential information obtained by the reporter in his/her newsgathering role.

2. Discussion of each exemption.

The West Virginia Freedom of Information Act specifically exempts nineteen categories of information from disclosure. Each of these exceptions, and Supreme Court decisions interpreting them, are discussed in the following sections.

a. Trade secrets

The first FOIA exemption is for:

(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.

A. Is there a right to participate in public meetings?

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.

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. Do text messages and/or instant messages constitute a record?

There have been no court decisions indicating whether text messages and/or instant messages constitute a “public record” under West Virginia FOIA. However, depending on the specific circumstances, the holding of Associated Press v. Canterbury, supra. is likely to be instructive insofar as the Court in Associated Press. In that case, the Court recognized that e-mail communications fall within the scope of “writings” covered by the West Virginia FOIA. Text and instant messages are likely to be viewed in the same light.