1. What kind of records are covered?

The Freedom of Information Act applies to "any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body." W. Va. Code §  29B-1-2(4). As the state Supreme Court has noted, this provision "constitutes a liberal definition of a 'public record' in that it applies to any record which contains information relating to the conduct of the public's business, without the additional requirement that the record is kept 'as required by law' or 'pursuant to law,' as provided by the more restrictive freedom of information statutes in some of the other states." Daily Gazette v. Withrow, 350 S.E.2d at 742-43 (citations omitted).

Earlier editions of this Guide observed that the requirement that the writing contain "information relating to the conduct of the public's business" is one of the easiest to understand and apply. As the state Supreme Court held in Withrow, supra, this broad definition includes documents that contain a mixture of "official" and "personal" information regarding a public officer or body:

[If the] document contains information 'relating to the conduct of the public's business,' [it] is . . . a 'public record' under the State FOIA. . . . That the . . . document involves 'personal,' as well as 'official,' conduct of the public body does not vitiate the 'public' nature of the document. The term 'public record' should not be manipulated to expand the exemptions to the State FOIA; instead, the burden of proof is upon the public body to show that one (or more) of the express exemptions applies to certain material in the document.

Daily Gazette v. Withrow, 350 S.E.2d at 744. Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009), however, took a much more narrow, crabbed view of the statutory term “related to the conduct of the public’s business.”  In Canterbury, a member of the state judiciary sent more than a dozen emails (over a government internet server) to an officer of a corporation that had an appeal of an adverse fifty million dollar jury award pending before the jurist’s court.

The Court held that the definition of a “writing” contained in FOIA includes e-mail communications. However, it also held that “a personal e-mail communication by a public official or public employee, which does not relate to the conduct of public's business, is not a “public record” under FOIA. While that holding is unsurprising, the Court chose to narrowly construe the statutory language “relating to the conduct of the public’s business.”

The Court’s opinion advised trial courts to restrict their review of whether a record was “public’ to an analysis of the content of the e-mail and not extend to a context-driven analysis because of public interest in the record. Thus, the court held that an email sent by a member of the judiciary via a court email system to an officer of a private corporate litigant ( that  had a fifty million dollar adverse jury award appeal pending before the court) was not a “public record” subject to the FOIA. The decision has been criticized by commentators, see e.g., Taking Out The Context: A Critical Analysis Of Associated Press v. Canterbury, 113 W.Va.Law Rev. 259 (2010):

In Associated Press v. Canterbury, the court improperly relied on case law from outside of West Virginia, contradicted its own precedent, abrogated a clear legislative mandate, and ignored the policy underlying the West Virginia Freedom of Information Act. In doing so, it arrived at a holding that was contrary to the clear and emphatically stated purpose of the Act: to open the workings of government to the public by allowing persons to access public records held by government agencies so that the electorate may be informed and retain control.

Id. at 285.  Both the majority and a dissenting opinion in Canterbury indicated that the state’s legislature should consider amending the statute if it desired a broader interpretation of “public record.” In the 2011 session of the West Virginia legislature, the House of Delegates passed an amendment that would have nullified Canterbury’s narrow definition of “public record.” The proposed amendment would have required both the context of an email and the email’s content be considered in determining whether it is a public record under FOIA. The West Virginia Senate, however, failed to take up the bill in committee. Future legislative action may be forthcoming in response to the Canterbury decision.

The  Court has also broadly defined what is "owned and retained by a public body": "[L]ack of possession of an existing writing by a public body at the time of a request under the State's Freedom of Information Act is not by itself determinative of the question whether the writing is a 'public record' under W. Va. Code §  29B-1-2(4). . . . The writing is 'retained' if it is subject to the control of the public body." Daily Gazette v. Withrow, 350 S.E.2d at 744.

As Withrow noted, a public body can be compelled to produce records under the Freedom of Information Act if those records are in the hands of its attorney, bank, or other agent. However, in a subsequent decision, the Supreme Court held that "[w]here a public body has a legal right to obtain a copy of a writing relating to the conduct of the public's business, which was prepared and retained by a private party, but the public body does not exercise that right, the fact that the public body has the right to obtain a copy of the document does not, standing alone, mean that the writing is a "public record" as defined by the Freedom of Information Act." Affiliated Construction Trades Foundation v. Regional Jail and Correctional Facility Authority, 200 W.Va. 621, 622, 490 S.E.2d 708, 709 (1997).

The FOIA requirement that a writing must have been "prepared, owned and retained by a public body"  is somewhat ambiguous. However, in a recent decision, the Supreme Court has clarified the meaning of the phrase, interpreting the word "and" used in the phrase "prepared, owned and retained by a public body" to be read as "or." In Sheperdstown Observer v. Maghan, 226 W.Va. 353, 700 S.E.2d 805 (2010) a public body argued that a zoning petition prepared by private citizens, but in the possession of a County Clerk, did not qualify as a public record because it was not “prepared . . . by a public body.”  The Court held that “under the West Virginia Freedom of Information Act (FOIA)  . . . a ‘public record’ includes any writing in the possession of a public body that relates to the conduct of the public's business which is not specifically exempt from disclosure by W.Va.Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.”

In Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), a "public record" was held to include written communications between a public body and private persons or entities. The court recognized a very narrow exception to the disclosure requirement where such communications "consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body's deliberative, decision-making process." Id., Syllabus pt. 4.   It is clear that documents kept by a public body and containing information relating to the conduct of the public's business are not exempt from disclosure simply because they were initially "prepared" by some other person or entity.