West Virginia

B. Whose records are and are not subject to the act?

The Freedom of Information Act applies to every branch of government, and no agency is entirely exempt from its provisions. The Act applies to every "public body," and that term is defined broadly:

3. To set aside decision.

Section 3 of the Open Meetings Act specifically authorizes a court of competent jurisdiction to "invalidate any action taken at any meeting for which notice did not comply with the requirements of this section. W. Va. Code § 6-9A-3. Section 6 seems to broaden the court's authority to annul a decision for non-compliance with provisions other than the notice requirements.

2. Criminal contempt

There are no known instances of a court sentencing a reporter to a fixed sentence for criminal contempt in failing to comply with a court order to provide information. Such a remedy is highly unusual and unlikely. Nevertheless, conviction for criminal contempt is provided for in West Virginia Code § 61-5-26(d), that allows a court to sentence and/or fine an individual for disobedience to an order of the court. The putative contemnor is permitted a jury trial, but there is no statutory limitation on the amount of the potential fine or the period of incarceration.

1. Appeal routes.

The only appeal route from an adverse circuit court ruling in a FOIA suit is to the West Virginia Supreme Court of Appeals.

II. Authority for and source of the right

The Supreme Court of Appeals of West Virginia has held that a reporter is entitled to a qualified privilege when engaged in the news-gathering function. This qualified privilege was enunciated first in State ex rel. Hudok v. Henry, 182 W.Va. 500, 17 Media L.Rep. 1627, 389 S.E.2d 188 (W.Va. 1990). The state Supreme Court delineated a balancing test for application of the reporter's privilege. The source for the privilege was found in the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct.

a. Rules for active investigations.

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

D. Fee provisions or practices.

(This section is blank. See the subpoints below.)

2. Will the court give priority to the pleading?

There is no provision directing the court to give priority to a citizen's petition challenging a public agency's actions under the Open Meetings Act. However, if the petition seeks to enjoin an imminent violation of the statute, an expedited hearing will be available.

F. Arbitration


West Virginia

C. Third-party subpoenas

West Virginia courts have not had occasion to address the circumstance where a media entity has an interest in fighting subpoenas issued to third parties in an effort to discover the media's source.