West Virginia

b. State attorney general.

The Open Meetings Act does not provide for any appeal to the state Attorney General, and that office generally will issue a written opinion only upon the request of state department heads, prosecuting attorneys, or certain other public officials. In the case of an impending egregious violation of the Open Meetings Act, it might be possible to obtain an informal ruling from the Attorney General's office or from the public agency's other legal advisor, thereby averting such action.

The 1999 amendments added a new subsection 12 to W. Va. Code § 6-9A-4 that provides:

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure.

The Supreme Court of Appeals has stated repeatedly that the specific exemptions contained in section four of the Freedom of Information Act are the only exemptions from disclosure under the Act. However, while the court has never specifically decided any claim for confidentiality based upon any privileges against disclosure which existed at common law, the court has recognized privileges in the context of FOIA litigation in three cases.

a. Definition.

As noted previously, a meeting is "the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in an official action.

5. Addressing mootness questions

West Virginia courts have not had occasion to address "mootness" as an issue when a trial or grand jury session for which a reporter was subpoenaed has concluded.

a. Description of the records.

Any FOIA request must describe the information sought "with reasonable specificity." W. Va. Code § 29B-1-3(4). Written requests should also specify that the request is being made both under the Freedom of Information Act and under the common law right of access. If another statute provides for broader access to the requested materials, that statute also should be mentioned.

3. Grand jury

Although there are no West Virginia cases directly on point addressing a reporter's privilege in the grand jury context, nevertheless, the Hudok court acknowledged that a reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation[.]" The Hudok court cited with approval the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct.

7. What court.

A petition under the Open Meetings Act must be filed in "the circuit court in the county where the public agency regularly meets." W. Va. Code § 6-9A-6. In extraordinary cases, a petition could be filed in the state Supreme Court, seeking a writ of mandamus or prohibition. See the preceding section, on the Freedom of Information Act, for a more detailed discussion of the availability of this remedy.

3. Private matter message on government hardware.

There are no cases dealing with private matters discussed in text or instant messages on government hardware. Such communications would probably qualify as a “writing” under FOIA, but would likely be held to fall outside FOIA disclosure requirements unless the messages “relate to the conduct of the public’s business” as interpreted by the Court in Associated Press v. Canterbury, supra.

(3). Where posted.

The posting of an emergency notice for most public bodies would depend upon their own rules. It is not clear under the Open Meetings Act where the notice of an emergency meeting filed by a governing body of an executive branch of the state would be posted since there probably would not be time for such notice to be published in the state register.