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.
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.
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).