West Virginia

V. PROCEDURE FOR OBTAINING RECORDS

This section addresses the most frequently asked question under the Freedom of Information Act: "How do I file an FOIA request?"

F. How are social media postings and messages treated?

There have been no court decisions or agency guidance indicating how social media postings and messages are to be treated for purposes of FOIA analysis.

2. Material unavailable from other sources

The requested material must not be obtainable from other available sources. State ex rel. Charleston Mail Ass'n v. Ranson, and State ex rel. Hudok v. Henry. The court in State ex rel. Hudok v. Henry, supra, recognized there may be a situation where a newsperson is the only individual with credible evidence bearing upon an important issue in a civil case.

4. What issues will the court address?

In a judicial proceeding under the Open Meetings Act, the court will address any issue arising under the statute, including a request for an order in a particular pending meeting be open, establishing general rules concerning access to future meetings, and invalidating decisions made at illegal meetings. McComas v. Fayette County Board of Education, supra. The 1999 amendments create addition issues that a court may be called upon to address.

(6). Penalties and remedies for failure to give adequate notice.

Although the Open Meetings Act does not spell out the notice requirements for most public bodies, it does include a very specific penalty for the failure to provide adequate notice in accordance with the statute. Where an "adversely affected party" files a petition challenging the public agency's action, any court of competent jurisdiction "may invalidate any action taken at any meeting for which notice did not comply" with the notice requirements of the Act. W. Va. Code §  6-9A-3.

2. Informal telephone inquiry as to status.

Unless the agency has clearly indicated its intention to refuse the request, however, an informal telephone inquiry regarding the status of the request is advisable if the response is not received within the time limit. If the initial request was oral, or was made to someone other than the official "custodian" of the records, a written inquiry directed to the custodian — including a reminder that you will seek reimbursement for attorneys' fees if the agency's failure to respond necessitates legal action — would be preferable.

E. Business records, financial data, trade secrets.

Trade secrets are the first FOIA exemption, but there is no provision under the FOIA or other statutes for confidentiality of business records or financial data. In Queen v. WVU Hospitals, supra, the Supreme Court refused to create a general exemption for "business confidentiality." In Keegan v. Bailey, 191 W. Va. 145, 443 S.E.2d 826 (1994), the state Supreme Court ruled that the state's uncashed checks were subject to disclosure under the Freedom of Information Act, even though the records of abandoned property are specifically exempt under W. Va.

d. Other elements

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.

Open Records

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