West Virginia

I. How are fees for electronic records asessed?

Fees for electronic record request should be consistent with the fees that may be charged for reproducing records in a paper format. Thus, the limit on fees charged by public bodies should be the “actual cost of reproduction” of records in an electronic format. If the record is transmitted to the requester on a computer readable DVD or CD the charge should be no more than the cost of that medium to the government body.

c. Delays.

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

4. Standard of review

All questions or interpretations of law are subject to a de novo standard of review. Findings of fact made by a jury, or by a judge sitting as the finder of fact at trial, are reviewed under a "clearly erroneous" standard; however, factual findings made by a lower court (if any) in matters concerning the assertion of a reporters' privilege typically are derived from affidavits or pleadings, a de novo standard would apply to any such findings made by the lower court.

2. Criminal

In the only West Virginia criminal case discussing a reporter's privilege, State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997), the court held that a subpoena to a reporter in a criminal case is treated differently than a subpoena to a reporter in a civil case, at least when the subpoena comes from a criminal defendant. The court agreed that a qualified privilege still exists for reporters in criminal cases, but slightly lowered the standard for breaching the privilege because of the criminal defendants' Sixth Amendment rights.

1. Character of exemptions.

The Open Meetings Act does not permit the closing of a meeting simply because the public agency believes closure would serve the public interest. To the contrary, the statute mandates that "except as expressly and specifically otherwise provided by law . . . all meetings of any governing body shall be open to the public." W. Va. Code § 6-9A-3 (emphasis added).

J. Election records.

Election records are subject to disclosure under the Freedom of Information Act. Additionally, several statutes specifically mandate particular records to be maintained as public records open to inspection. See W. Va. Code § 3-1-7 (clerk of county commission must keep a bound book recording all proceedings creating or changing precincts, or establishing or changing voting places or precincts); W. Va. Code § 3-6-9 (county commission must keep a complete record of all vote canvassing proceedings).

F. Addressing government suits against disclosure.

In re Charleston Gazette FOIA Request, a City refused to release to a newspaper certain payroll records of police officers 222 W.Va. 771, 671 S.E.2d 776 (W.Va. 2008), After refusing to disclose the requested records, the City sought a declaratory judgment. The Supreme Court of Appeals confirmed that a public body may seek a declaratory judgment as a means of vindicating its’ authority to withhold records made exempt by FOIA or other statute.

2. Purpose of request.

It is not necessary for a requester to indicate the purpose for a request. It may, however, be advisable in some circumstances to so indicate if that purpose is one that the public body receiving the request is likely to endorse.

6. Compilations of criminal histories.

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