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.
The minutes of open meetings are public records and must be made available to the public within a reasonable time after the meeting is held. W. Va. Code § 6-9A-5. Any tape recording made of the meeting also is a public record. Veltri v. Charleston Urban Renewal Authority, supra.
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.
Although technically there is no right to an interlocutory appeal, if a motion to quash a subpoena is denied, the reporter may file a Petition for Writ of Prohibition or a Petition for Writ of Mandamus directly in the West Virginia Supreme Court of Appeals. Although such Petitions are deemed "extraordinary" procedures for relief, the state Supreme Court historically has allowed such Petitions in cases involving a reporter's privilege because the First Amendment constitutional implications. The acceptance of such a Petition acts as an automatic stay of the lower court's ruling.
The reported caselaw, i.e., Hudok v. Henry, is the sole source of the qualified reporter's privilege in West Virginia. There are no court rules, state bar guidelines, or administrative procedures that articulate a reporter's privilege.
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).
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.