West Virginia

C. Administrative appeal.

Unlike the federal FOIA, West Virginia's Freedom of Information Act has no provisions for administrative appeals. Since the request for records must be made to the agency's chief executive — "the elected or appointed official charged with administering a public body," W. Va. Code § 29B-1-3(2) — there usually is no practical avenue for informal administrative appeals.

9. Availability of court costs and attorneys' fees.

In 1993 the Open Meetings Act was amended to permit the courts to order the governing body to pay the "necessary attorney fees and expenses" of persons bringing suit under the statute if (a) the court entered an order compelling compliance or enjoining noncompliance with the statute, or annulling a decision made in violation of the act; and (b) the court finds the governing body "intentionally violated the provisions" of the statute. W. Va. Code § 6-9A-6(7).

a. Fines

In West Virginia, there is very little, if any history of reporters being fined for failure to comply with a subpoena. There is no specific cap on such fines, and there is no statute or caselaw specifically addressing contempt proceedings where a reporter refuses to comply with a subpoena.

(1). Time limit for giving notice.

The Open Meetings Act does not require any formal written notice be given before a public agency may go into executive session. Before a regular, special or emergency meeting can be closed, the presiding officer of the governing body must first identify the authorization under the statute for holding an executive session and present the issue to the governing body and to the general public. The governing body must approve of the closure by majority vote. W. Va. Code § 6-9A-4.

a. Bodies receiving public funds or benefits.

The Freedom of Information Act applies to "any other body . . . which is primarily funded by [a] state or local authority." In 4-H Road Community Association v. W. Va. University Foundation, 182 W. Va.

Author

Sean McGinley

DiTrapano Barrett & DiPiero, PLLC

604 Virginia St. East

Charleston, WV 25301

304-342-0133

4. Issues the court will address:

The FOIA confers on the court "jurisdiction to enjoin the custodian or public body from withholding records and to order the production of any records improperly withheld from the person seeking disclosure." W. Va. Code § 29B-1-5(2). The statute also authorizes the court to enter a declaratory judgment that establishes patterns for future access.

A. Newsroom searches

At present, the federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used in West Virginia. There are no similar provisions under West Virginia state law.

G. Are there sanctions for noncompliance?

The West Virginia Open Governmental Proceedings Act, specifically W.Va. Code § 6-9A-7 provides for both civil and criminal penalties for noncompliance. Subsection (a) provides that any person who is a member of a public or governmental body required to conduct open meetings under the Act who willfully and knowingly violates the Act's provisions is guilty of a misdemeanor and is subject to a fine of not more than five hundred dollars. Second or subsequent offenses also constitute misdemeanors for which a minimum fine of not less than one hundred nor more than one thousand may be imposed.