West Virginia

II. Authority for and source of the right

The Supreme Court of Appeals of West Virginia has held that a reporter is entitled to a qualified privilege when engaged in the news-gathering function. This qualified privilege was enunciated first in State ex rel. Hudok v. Henry, 182 W.Va. 500, 17 Media L.Rep. 1627, 389 S.E.2d 188 (W.Va. 1990). The state Supreme Court delineated a balancing test for application of the reporter's privilege. The source for the privilege was found in the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct.

1. Who may sue?

Any "citizen" of this state may file a petition challenging the action of a public agency under the Open Meetings Act. W. Va. Code §§ 6-9A-3 and 6. Although the statute originally required the plaintiff to "show a good faith and valid reason for making the application," the provision was deleted in a 1993 amendment. Only a person "adversely affected" by a decision may have the decision invalidated solely on the grounds the body gave improper notice of the meeting. W. Va. Code § 6-9A-3.

2. Particular fee specifications or provisions.

The FOIA contains no provisions for separate charges for searches, duplication, computer access or printouts, microfiche, or non-print audio or audio-visual records. Since the statute only authorizes charges for the cost of "reproduction," additional "search" charges generally should be prohibited except when expressly authorized by another statute.  An exception to the general rule is found in W. Va.

(2). To whom notice is given.

The Open Meetings Act does not state to whom notice of an emergency meeting is to be given. The governing bodies of the executive branch of the state presumably would file the notice of an emergency meeting with the Secretary of State.

c. State attorney general.

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

C. Third-party subpoenas

West Virginia courts have not had occasion to address the circumstance where a media entity has an interest in fighting subpoenas issued to third parties in an effort to discover the media's source.

I. Defamation actions

In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. From the Hudok case, it is known that a qualified privilege does exist in West Virginia, even in libel cases. Nevertheless, the privilege is not as strong as in other civil claims. Stated another way, the burden a litigant must meet to breach the reporter's privilege is less in cases where defamation or libel is alleged. Although the Hudok court did not delineate the boundaries of the privilege in the defamation context, it did cite to Zerilli v.

3. Contact of interested amici.

Any person wishing to file an amicus brief in the West Virginia Supreme Court must file a motion making the request. Generally speaking, the current Supreme Court routinely grants such motions.

c. Patterned after federal Freedom of Information Act?

The West Virginia Freedom of Information Act is similar to the federal statute in many respects, and the West Virginia Supreme Court recognized "the close relationship between the federal and West Virginia FOIA . . . in particular the value of federal precedents in construing our state FOIA's parallel provisions." Daily Gazette v. W. Va. Development Office, supra. It should be noted, however, that the eleven new exemptions added to W. Va. Code, §  29B-1-4  since 2003 are not patterned after those contained in the federal FOIA, 5 U.S.C. §  552 (b) (1) - (9).