"An individual's medical records are classically a private interest," Child Protection Group v. Cline, 350 S.E.2d at 545, and Exemption 2 of the FOIA specifically protects "[i]nformation of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance." The balancing test required by this exemption is discussed at length above. (W. Va. Code § 16-29-1 gives individuals the right of access to their own medical records.)
An even broader exemption from disclosure is provided by W. Va. Code § 27-3-1 for records reflecting psychiatric treatment or evaluation of any individual:
Communications and information obtained in the course of treatment or evaluation of any client or patient shall be deemed to be 'confidential information' and shall include the fact that a person is or has been a client or patient, information transmitted by a patient or client or family thereof for purposes relating to diagnosis or treatment, information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment, all diagnoses or opinions formed regarding a client's or patient's physical, mental or emotional condition; any advice, instructions or prescriptions issued in the course of diagnosis or treatment, and any record or characterization of the matters hereinbefore described. It does not include information which does not identify a client or patient, information from which a person acquainted with a client or patient would not recognize such client or patient, and encoded information from which there is no possible means to identify a client or patient."
This statute provides for disclosure of confidential information in three circumstances: (1) in specified judicial proceedings, where an involuntary examination has been made pursuant to those proceedings, or where the court determines the information is sufficiently relevant to the proceeding to outweigh the importance of maintaining confidentiality; (2) to professionals involved in treatment of the patient, for treatment or internal review purposes; or (3) "to protect against a clear and substantial danger of imminent injury by a patient or client to himself or another."
The Supreme Court of Appeals interpreted this statute in State v. Simmons, 173 W. Va. 590, 309 S.E.2d 89 (1983), but gave no indication of whether its provisions would constitute a blanket exemption for psychiatric records in the custody of a public body. Although the court in Cline, supra, did not mention this statutory provision, the court's treatment of such records suggests they would be subject to disclosure under the FOIA if the interests favoring access in a particular case outweighed the individual's right to privacy.
Records concerning the institution, rather than individuals, normally will be subject to disclosure. Queen v. WVU Hospitals, supra. W. Va. Code § 16-5C-16 requires the state director of health to "make available for public inspection and at a nominal cost provide copies of all inspections and other reports of [nursing homes and personal care homes] filed with or issued by the director," without disclosing "confidential medical, social, personal or financial records of any patient." The Freedom of Information Act should provide similar access to inspection records of hospitals and other regulated facilities.
Information regarding state hospitals may be obtained from the individual facilities, or from the state director of health, to whom the superintendent of each facility is require to furnish "such information as he may have concerning admissions, discharges, deaths and other matters. From this and other information available to the director of health, he shall keep such records as are necessary to enable him to have current information concerning the extent of mental illness in the state. The names of individuals shall not be accessible to anyone except by permission of the director of health or by order of a judge of a court of record." W. Va. Code § 27-2-5.
Specific statutes control access to one additional category of hospital records. State law regulates peer review organizations, in which medical professionals evaluate the performance of their colleagues. Whenever a hospital's peer review committee finds a physician has performed incompetently, it is required to furnish its findings to the state Board of Medicine. W. Va. Code § 30-3C-3 makes such peer review records strictly confidential unless the person whose activities were reviewed consents to disclosure. In Daily Gazette v. W. Va. Board of Medicine, supra, the state Supreme Court upheld the validity of this provision generally, but ruled that peer review records must be made available for public inspection if they are used by the Board of Medicine as a basis for initiating disciplinary proceedings against a physician. Then, in Thompson v. W. Va. Board of Osteopathy, supra, the court held that, even where the Board of Osteopathy Medicine did not find probable cause to pursue disciplinary action, the public had a right of access to the document setting forth the charges, and the findings of facts and conclusions of law supporting the dismissal of those charges.