West Virginia

3. Agreement to partially testify act as waiver?

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.

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.

(5). Other information required in notice.

For most public bodies, there is no particular information required to be included in the notice of an emergency meeting. The notice of an emergency meeting filed by the governing bodies of the executive branch of the state must include "the date, time, place and purpose of the meeting and the facts and circumstances of the emergency."

a. Description of records or portions of records denied.

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

2. Rules for closed investigations.

Other than cases construing FOIA exemptions, there have been no specific court decisions or statutory references to application of FOIA to closed administrative law enforcement investigations.

1. To whom is the appeal made?

Appeals are made from the circuit court level directly to the state Supreme Court. There is no intermediate court of appeals in West Virginia. Although it unlikely that a reporter subpoena would be issued in a magistrate court proceeding in West Virginia, appeals from Magistrate Court go first to the circuit court, and then to the state Supreme Court, with the circuit court acting as an intermediate appellate court.

Title page/author info

Prof. Patrick C. McGinley

Judge Charles H. Haden II Professor of Law
West Virginia University
College of Law
P.O. Box 6130
Morgantown, WV 26507-6130
(304) 293-6823

patrick.mcginley@mail.wvu.edu
and
Suzanne M. Weise
Visiting Associate Professor of  Law

West Virginia University
College of Law
P.O. Box 6130
Morgantown, WV 26507-6130

(304-293-3367)

suzanne.weise@mail.wvu.edu



A. Is there a right to participate in public meetings?

The Open Meetings Act does not address the issue of the public's right to comment at public meetings. Section 6-9A-3 provides that "persons who desire to address the governing body may not be required to register more than fifteen minutes prior to [the] time the scheduled meeting is to commence." The statute does not explicitly provide a public right to comment and there are no West Virginia cases addressing this issue.

B. Absolute or qualified privilege

The reporters' privilege is a qualified one in West Virginia. However, West Virginia treats all information acquired by the reporter in the news-gathering process in the same, qualified manner. Thus, whether the information sought from a reporter is the identity of a confidential source, or unpublished, non-confidential notes or observations, the qualified privilege is the same. Unfortunately, although the qualified protection afforded such information in civil cases is quite good, there is at present no absolute privilege in West Virginia for confidential source identities.

(2). Are minutes a public record?

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.