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West Virginia

Open Government Guide

Author

Patrick C. McGinley
Judge Charles H. Haden II Professor of Law
West Virginia University
College of Law
P.O. Box 6130
Morgantown, WV 26507-6130
(304) 552-2631
patrick.mcginley@mail.wvu.edu

and

Suzanne M. Weise
Visiting Associate Professor of Law
West Virginia University
College of Law
P.O. Box 6130
Morgantown, WV 26507-6130
(304-293-3367)
suzanne.weise@mail.wvu.edu

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Foreword

There have been several important court decisions interpreting West Virginia's Freedom of Information Act (FOIA) since the Sixth Edition of this guide was published in 2011 and three important amendments to the Act. The Open Governmental Proceedings Act (called "the Sunshine Law" in West Virginia but referred to herein as the “Open Meetings Act”) has not been amended since 1999.

The West Virginia Freedom of Information Act begins with an emphatic declaration that the people of the state demand and open transparent government:

Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people and not the master of them, it is the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.

W. Va. Code § 29B-1-1. The state's Open Meetings Act contained a similar unequivocal declaration in favor of broad public access to governmental proceedings until it was amended in 1999. W. Va. Code § 6-9A-1.

In 1992, the West Virginia Legislature amended § 29B-1-3 of the FOIA to require records existing "in magnetic, electronic or computer form" be made available on magnetic or electronic or magnetic media, and a new section, § 29B-1-7, that provides for payment of attorney fees and court costs to successful litigants who have been unlawfully denied access to public records. The following year the Legislature amended the Open Meetings Act to include standing committees of the Legislature in the definition of "governing body" and added provisions in § 6-9A-6 to provide for attorney fees and fines for intentional violations.  In 1997, a paragraph was inserted into a bill amending an economic development section of the Code (W. Va. Code § 5B-2-1). That amendment essentially barred public access to documents made or received by a "public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business" and effectively concealed from public scrutiny the bulk of records pertaining to state economic development activities.

The West Virginia Legislature responded to the September 11, 2001 terrorist attacks by amending FOIA seeking to block terrorist access to certain sensitive state government information. The amendments added to West Virginia Code section 29B-1-4 eight new exemptions from public disclosure. Those exemptions bar access to information that would have a detrimental effect on public safety or public health. These amendments have the effect, not only of blocking terrorists' ability to obtain sensitive information through FOIA, but the potential to limit public access as well.

With a few exceptions the West Virginia Supreme Court of Appeals has shown a willingness to liberally interpret the state FOIA and open meetings statutes. The court frequently has held that the disclosure provisions of FOIA are to be liberally construed and the exemptions are to be strictly construed. Shepherdstown Observer v, Inc. v. Maghan, 226 W. Va. 353, 700 S.E.2d 805 (2010). Daily Gazette v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”); Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631 (1994). But see, State v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (holding that FOIA could not be used by state prison inmates to obtain court records for the purpose of filing habeas corpus petitions.

Similarly, in a case interpreting the Open Meetings Act, the Court held that the Act should be read expansively since a "narrow reading would frustrate the legislative intent and negate the purpose of the statute." McComas v. Bd. of Educ. of Fayette Cnty, 197 W. Va. 188, 475 S.E.2d 280, 289 (1996). This was clear, in part, from the constitutional underpinnings of the Act:

[The] declaration, and the Act generally, implement grand and fundamental provisions in our State Constitution. Those provisions, adopted from Virginia's Declaration of Rights, proclaim the theory of our form of government and embrace Article II, § 2 (powers of government in citizens) and Article III, §  2 (magistrates servants of people) and § 3 (rights reserved to people). Together they dramatically call for a political system in which the people are the sovereigns and those in government are their servants. Naturally, servants should be loath to exclude their sovereigns from any substantive deliberations. As is obvious from the declaration of policy in W. Va. Code § 6-9A-1, that is precisely the sentiment inspired by the Sunshine Act.

Id.

The Supreme Court of West Virginia also has shown a willingness to identify additional sources for public access to official information. When faced with practical problems not specifically addressed by the FOIA or the Open Meetings Act, (e.g., when the disclosure of personal information would be "unreasonable") the Supreme Court has fashioned "innovative measures" to provide public access while protecting other legitimate interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541, 545 (1986). The court also directed the lower courts of the state to do likewise and to remember, "the fullest responsible disclosure, not confidentiality, is the dominant objective" of these statutes. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 810 (1985).

In several decisions, however, the Supreme Court has shown a slight willingness to narrow the breadth of prior rulings. State v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (FOIA not available to state prison inmates seeking to obtain court records for the purpose of filing habeas corpus petitions); Affiliated Constr. Trades Found. v. Reg’l Jail & Correctional Auth., 200 W. Va. 621, 490 S.E.2d 708 (1997) (Where public body has unexercised right to obtain copy of writing relating to the conduct of the public's business which was prepared and retained by private party, that fact alone does not mean the writing is "public record" under FOIA).

Prior to passage of the Acts, the state Supreme Court identified the mechanisms by which the public could obtain access to information regarding the operation of government. These mechanisms remain available in addition to, and independent of, the FOIA and Open Meetings statutes. The first of these additional sources is the common law right of access to public records. This traditional common law right is more restrictive than the FOIA in one respect, since it requires both that the requester have a legally cognizable "interest" in the records and that the information be sought for a "useful and legitimate purpose." State v. Harrison, 130 W. Va. 246, 254, 43 S.E.2d 214, 218 (1947). However, where the information pertains to the functions of government, the interest of any citizen in "being fully informed on the activities and conduct of its government and the elected officers thereof" generally is sufficient to fulfill these requirements. Charleston Mail Ass’n v. Kelly, 149 W. Va. 766, 770, 143 S.E.2d 136, 139 (1965).

In West Virginia, the common law right retains considerable importance since it not only gives citizens a right to inspect public records, but also imposes a duty on government officials to create and maintain written records reflecting activities of government:

There is no obligation under the State FOIA to create any particular record, but only to provide access to a public record already created and which is 'retained' by the public body in question . . . [T]he common law in this state does require a public official to create and maintain such documents involving the public official in an official capacity. The State FOIA and the common law principles are not, therefore, coextensive but are interrelated.

Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738, 746 n.9 (1986). The Withrow ruling is an important one since the lack of an existing record is a frequent barrier to obtaining information under the federal FOIA and those of other states. However, the potential scope of Withrow's holding has been limited somewhat by Affiliated Construction Trades Foundation v. Regional Jail and Correctional Authority, 200 W. Va. 621, 490 S.E.2d 708 (1997). Affiliated Construction Trades Foundation held that a state public body may not have to request a copy of a writing relating to the conduct of the public's business which was prepared and is retained by a private party. The fact that the public body has an unexercised right to obtain such a writing does not, alone, mean the writing is a "public record" subject to disclosure under FOIA.

The Supreme Court also has recognized particular statutory provisions might provide a broader right of access to certain types of information than does the FOIA. For example, in Richardson v. Town of Kimball, the court ruled a statute which mandates most court records be open to the public creates an absolute right of access to those records. 176 W. Va. 24, 340 S.E.2d 582 (1986). Later, in Maclay v Jones, the court held that public records exempt from disclosure under FOIA may be have to be produced in response to civil discovery requests in litigation. 208 W. Va. 569, 542 S.E.2d 83 (2000).

In recent important access rulings, the Supreme Court of Appeals has held the West Virginia Constitution's mandate that "the courts of this state shall be open" creates a "fundamental constitutional right of access" to civil and criminal judicial proceedings, as well as to the records and proceedings of quasi-judicial agencies. The court has relied on this provision to require broad public access to disciplinary proceedings against attorneys and physicians, and to require licensing agencies to create a written public record justifying their action whenever they dismiss a complaint against an attorney or physician without a hearing. Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Bd. of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986); Thompson v. W. Va. Bd. of Osteopathy, 191 W. Va. 15, 442 S.E.2d 712 (1994). These rulings apply to all agencies exercising quasi-judicial powers and provide a much broader access right to these proceedings than would be available under the Freedom of Information or Open Meetings Acts.

Finally, the court's access decisions have recognized the essential role played by the press in transmitting to the public information concerning governmental action to the citizens of the state:

Once the right in the public to attend the trial is acknowledged, the same right must be accorded members of the press. The press not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information. This special status rests on a realistic recognition that it is impossible for any meaningful number of the general public to abandon their daily pursuits to attend trials, and a further acknowledgement that the press has valuable expertise in ferreting out information difficult for the general public to obtain.

State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980).

So long as the general judicial attitude toward openness reflected in these cases continues, the Freedom of Information Act and Open Meetings Act will be important to reporters, and the public in seeking to obtain information regarding the functions of government.

Enacted in 1975, the Open Meetings Act provides:

The Legislature hereby finds and declares that public agencies with in this state exist for the singular purpose of representing citizens of this state in governmental affairs, and it is, therefore, in the best interests of the people of this state for all proceedings of public agencies to be conducted openly with only a few clearly defined exceptions. The Legislature hereby further finds and declares that the citizens of this state do not yield their sovereignty to the governmental agencies that serve them. The people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government created by them.

W. Va. Code § 6-9A-1. With this statement of legislative purpose, the West Virginia Legislature in 1975 enacted the Open Governmental Meetings Act, W. Va. Code § 6-9A- et seq., referred to here as the Open Meetings Act. The statute is sometimes called the Sunshine Law or Government in the Sunshine Act.  As indicated in the statement of purpose, the Act seeks to provide broad public right to be present at the meetings of government agencies.

Other than the statement of purpose, there is no legislative history available indicating what prompted the Legislature to enact the Open Meetings Act in 1975. The statute has been amended four times — in 1978, 1987, 1993, 1999 and 2013 — since its passage. The first two amendments were directed toward the most glaring deficiency in the original statute: the lack of a requirement that the public body give advance notice of its meetings. When it was first enacted, the Open Meetings Act contained no notice requirement. In 1978, the statute was amended to require that "[e]ach governing body shall promulgate rules by which the time and place of all regularly scheduled meetings and the time, place and purpose of all special meetings are made available, in advance, to the public and news media, except in the event of an emergency requiring immediate official action." W. Va. Code § 6-9A-3. In 1987, the section was again amended to require notice of state executive agency meetings be published in the state register at least five days prior to the meeting date. (All other public bodies could still determine their own notice procedure by regulation.)

In 1999, the West Virginia Legislature amended this declaration adding the following language:

The Legislature finds, however, that openness, public access to information and a desire to improve the operation of government do not require nor permit every meeting to be a public meeting. The Legislature finds that it would be unrealistic, if not impossible, to carry on the business of government should every meeting, every contact and every discussion seeking advice and counsel in order to acquire the necessary information, data or intelligence needed by a governing body were required to be a public meeting. It is the intent of the Legislature to balance these interests in order to allow government to function and the public to participate in a meaningful manner in public agency decision-making.

This amendment is problematic; it most likely was intended to emphasize that some discussions between decisionmakers in an informal setting and discussions with legal counsel are not required to be held in an open meeting. Other substantive 1999 amendments to the Act appear to implement this intent. See W. Va. Code §§ 6-9A-2(4)(D) and 6-9A-11. The amended declaration of legislative policy may be interpreted as inviting courts to use a balancing test in interpreting the statute. No cases have been decided in which this amended policy is mentioned. The amendment could be construed to narrow public rights of access to meetings. Whether courts will so construe this provision remains to be seen.

In the most recent 2013 amendment to the Act, emergency meetings were defined and notices were required to be filed on the Secretary of State's website at least five business days prior to an open meeting. "Emergency meeting" means any meeting called by a governing body for the purpose of addressing an unexpected event which requires immediate attention because it poses: an imminent threat to public health or safety; an imminent threat of damage to public or private property; or an imminent material financial loss or other imminent substantial harm to a public agency, its employees or the members of the public which it serves. W. Va. Code §  6-9A-2 (2). §6-9A-3(e). The notices filed with the Secretary of State are required to state the meetings' date, time, place and purpose; each notice of a special meeting or a regular meeting must be filed on the Secretary of State’s website at least five business days prior to the date of the meeting. When calculating the days, the day of the meeting isn't counted and filing after business hours is considered filed on the next business day.

The court in Appalachian Power, emphasized the law’s legislative purpose:

The foregoing statement is without doubt laudable, and we agree wholeheartedly with the intent expressed therein. However, it is unfortunate that the actual words of the Act fail to properly implement this lofty policy. Curiously it is as if the Act and the statement of policy were written by two different kinds of individuals without communication or knowledge of each other's intent or actions.

Appalachian Power Co. v. Pub. Serv. Comm’n, 162 W. Va. 839, 253 S.E.2d 377, 385 n.6 (1979). Indeed, as Appalachian Power indicates, there were some limitations in the language of the Open Meetings Act that rendered it less expansive than the Legislature may have intended. A 1996 decision of the West Virginia Supreme Court of Appeals interpreted the Open Meetings Act in a way that appeared to significantly broaden public's access to governmental meetings. McComas v. Fayette Cnty. Bd. of Educ., 197 W. Va. 188, 475 S.E.2d 280 (1996). Subsequently, the Legislature amended the Act narrowing the breadth of McComas insofar as it addresses whether discussions between public officials during informal social, educational, training, ceremonial and similar settings fall within the purview of the law. See W. Va. Code § 6-9A-2 (4)(D).

The impact of the interaction of the McComas decision and the 1999 amendments has not yet been addressed by the Court. Prior to enactment of the Open Meetings Act, the public had no comprehensive right of access to governmental meetings. Specific statutes provided varying degrees of access to meetings of different governmental bodies. See, e.g., Casto v. Bd. of Educ., 38 W. Va. 707, 18 S.E. 923 (1894) (public meeting required for appointment of teachers so "the patrons of the school may know what is transpiring, and give the trustees invaluable information touching the morality, capacity, and fitness of the teacher"); State ex rel. Withrow v. Surface, 110 W. Va. 237, 157 S.E. 402 (1931) (invalidating act of county court in special session because adequate public notice of meeting was not given).

Although the Secretary of State has no enforcement powers under the Open Meetings Act, some Secretaries have strongly supported the enforcement of the Open Meetings Act, especially its meeting notice requirements.  The Secretary of State publishes information relating to notice of meetings subject the law in the state register (https://apps.sos.wv.gov/adlaw/meetingnotices/). Regulations must also be filed in the Code of State Regulations, (https://apps.sos.wv.gov/adlaw/csr/).

The Register is posted online weekly (http://apps.sos.wv.gov/adlaw/registers/). The Code of State Regulations represents the codification of all final state agency rules and regulations (http://www.sos.wv.gov/administrativelaw/Pages/aboutcsronline.aspx). State agency open meeting regulations must be published in the Code of State Regulations. Final and proposed rules may be located at http://apps.sos.wv.gov/adlaw/csr/). This information may be accessed via the Secretary’s website that provides information on all rules promulgated by West Virginia State agencies (http://apps.sos.wv.gov/adlaw/csr).

Proposed and final regulations must be filed with the Office of the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Compliance with this mandate is monitored by a daily newspaper (The Charleston Gazette-Mail) that publishes lists of agencies that have failed to comply. (http://blogs.wvgazette.com/watchdog/). A list of current, future or historical meetings may be found at http://www.sos.wv.gov/administrative-law/register/pages/default.aspx.

That site also contains a general discussion of when prior public notice must be given as required by the Open Meetings Law: http://www.sos.wv.gov/administrative-law/Pages/online-meeting-notices.aspx A telephone inquiry to the Secretary of State's office (304-558-6000) should reveal whether a particular agency has proposed or adopted Open Meetings regulations or has given notice of any pending meeting.  Written questions relating to the Open Meetings law may be directed to the Secretary of State through the internet (http://www.sos.wv.gov/Pages/contact-adlaw.aspx). At times the state register will note a particular agency's non-compliance with the Open Meetings Act. The Secretary of State's Administrative Law office maintains a permanent record of the meeting notices that fail to comply with the requirements of the statute.

The 1999 amendments to the Open Meetings Act imposed specific duties on the Attorney General to assist state and municipal government bodies and officials in achieving compliance with that statute. W. Va. Code § 6-9A-12. The Office of the Attorney General no longer provides access to an Open Meeting Act Guide on his website and the Act is no longer referenced there.  The West Virginia Ethics Commission Committee on Open Governmental Meetings is required by § 6-9A-11 to issue written Advisory Opinions to governing bodies, or to their members, on whether an action or a proposed action violates the Open Meetings Act.  General information concerning the Open Meetings Act is available on the Ethics Commission website: http://www.ethics.wv.gov/openmeetings/Pages/default.aspx

According to the Commission’s website it “will provide informal advice ONLY to a governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act and who seeks advice and information as to whether an action or proposed action violates the Act.” Information relating to such advisory opinions is available online at:  http://ethics.wv.gov/advisoryopinion/Pages/default.aspx Any governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act may request a formal Advisory Opinion as to whether an action or proposed action violates the Act. Requests must be in writing to: West Virginia Ethics Commission, 210 Brooks St., Suite 300, Charleston, WV 25301. The request must contain a complete statement of the facts, including the name, address, phone number and the requester’s official position. The Commission may be contacted via,  phone (304) 558-0664, WV Toll Free 1-866-558-0664, or Fax (304) 558-2169.

The executive director of the Ethics Commission may give oral advice and/or information upon request. W. Va. Code § 6-9A-11(a). The committee is required to respond in writing and in an expeditious manner to a request for an advisory opinion. The opinion is binding on the requesting parties. Id. The Ethics Commission’s advisory opinions are available at: http://www.ethics.wv.gov/advisoryopinion/Pages/OpenMeetingsOpinions.aspx.

When an advisory opinion is requested and the requester acts in good faith reliance on the opinion, he/she has an absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance — unless the committee was willfully and intentionally misinformed as to the facts by the requester. W. Va. Code § 6-9A-11(b). Moreover, under subsection § 6-9A-11(c), a governing body or member acting in good faith reliance on a written advisory opinion sought by another person or governing body would have an absolute defense to any civil suit or criminal prosecution for any action taken based upon a written opinion of the ethics commission committee, if the underlying facts and circumstances surrounding such action were “the same or substantially the same as those being addressed by the written opinion.” Section 6-9A-11 does not appear to provide for members of the public to request an advisory opinion.

This edition of the West Virginia Open Government Guide expands upon and amends early   editions authored by attorney D.L. Hamilton and the late Rudy DiTrapano, and Rebecca Baitty, whose expertise, guidance and excellent work on early editions is acknowledged with appreciation.

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Open Records

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

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I. Statute

The Freedom of Information Act's declaration of policy, which is quoted in the Foreword, is the only indication of the legislative intent underlying the statute. There is no recorded legislative history relating to either the statute's original enactment in 1977 or its subsequent amendments. However, the state Supreme Court of Appeals has quoted the FOIA policy declaration repeatedly in its opinions. See e.g., Daily Gazette v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996); Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631 (1994). West Virginia's Supreme Court has mandated "the fullest responsible disclosure" of information concerning government. Hechler v. Casey, 175 W. Va. at 445, 333 S.E.2d at 808.

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A. Who can request records?

Any person or entity may obtain access to records through the Freedom of Information Act except state or federal inmates seeking information in support of a habeas corpus petition. The statute provides that "[e]very person has a right to inspect or copy any public record" and specifies the term "'[P]erson' includes any natural person, corporation, partnership, firm or association." W. Va. Code § 29B-1-2.

In general, the requester's purpose does not affect her right to receive records under the Freedom of Information Act, and the statute places no restrictions on the subsequent use of information obtained. However, if the request is for "information of a personal nature such as that kept in a personal, medical or similar file," the requester must have a "legitimate interest" in order to obtain the information. Robinson v. Merritt, 180 W. Va. 26, 375 S.E.2d 204 (1988). In such cases, the purpose of the request is one factor in the balancing test used by the courts to determine whether access should be allowed. A court may impose restrictions on the subsequent use of any personal information that is released. Child Prot. Grp. v. Cline, 177 W. Va. at 32, 350 S.E.2d at 543. This issue is discussed later in this outline, under the section on Freedom of Information Act exemptions.

In Hurlbert v. Matkovich, the court rejected a public body's contention that “because the Petitioners are not taxpayers, or residents of this State, the protections afforded by FOIA ... do not extend to them.” 233 W. Va. 583, 760 S.E.2d 152 (2014). The court emphatically stated that this assertion was "patently incorrect, as evidenced by the use of the term “person” and its commensurate definition contained in the statute." "In fact," the court observed, "the overwhelming majority of the states’ FOIA statutes have no such language restricting FOIA requests to their citizenry; only eight states restrict FOIA requests in such a manner."

Moreover, in Hurlbert, the public body "insinuated (but did not expressly contend) that because petitioners operate a ‘commercial business’ for which the requested information will presumably be used,  ‘the reach of the FOIA statute’ perhaps does not extend to them." The court, also rejected this proposition, noting that "our FOIA statute contains absolutely no prohibition on requests which are for a primarily commercial purpose. In fact, this Court stated in that the interest in the information 'may be pecuniary.' " Child Prot. Grp. v. Cline, 177 W. Va. at 33, 350 S.E.2d at 544.

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1. Status of requester

Any person or entity may obtain access to records. However, the West Virginia Supreme Court has held that individuals incarcerated in state or federal facilities "may not use [FOIA] to obtain court records for the purpose of filing a petition for writ of habeas corpus.” Syl. Pt. 3, State ex rel. Wyant v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003). Instead, a state inmate is limited to the discovery available to him under the West Virginia Rules Governing Post–Conviction Habeas Corpus Proceedings. See also, Smith v. Shoemaker, 2012 WL 5232225 (2012) (per curium) (unpublished opinion).

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2. Purpose of request

"A FOIA requester is not required to explain why a record should be disclosed or for what purpose a record is being requested." Highland Mining Co. v. W. Va. Univ. Sch. of Medicine, 235 W. Va. 370, 774 S.E.2d 36, 47 (2015). It may, however, be advisable in some circumstances to explain if the purpose is one that the public body receiving the request is likely to endorse or have no reason to oppose.

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3. Use of records

It is not necessary for a requester to indicate the use intended for the documents requested. It may, however, be advisable in some circumstances to indicate the underlying purpose if it is that the public body receiving the request is likely to endorse or at least toward which the agency will have no negative reaction. Highland Mining Co. v. W. Va. Univ. Sch. of Medicine, 235 W. Va. 370, 774 S.E.2d 36, 47 (2015).

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4. Can an individual request records on behalf of a third party or organization?

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 broadly defined:

“Public body” means every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.

W. Va. Code § 29B-1-2(3).

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1. Executive branch

Since every individual state officer constitutes a "public body" under the Freedom of Information Act (cf. Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986)), the records of the executives themselves (governor, mayor, other chief executive) are subject to the act so long as they "contain information relating to the public's business." The FOIA makes no other distinctions based upon the functions of a public agency.

Where a document involves "personal" conduct in addition to "official" conduct of the public body, it is possible that the "invasion of privacy" exemption set forth in W. Va. Code §  29B-1-4(2) may apply. If that exemption applies, a reviewing court would use a balancing test to determine whether, and in what circumstances, such information may be disclosed. See, Daily Gazette v. Withrow, 177 W. Va. 110, 166; 350 S.E.2d 738, 744 (1986), Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (W. Va.1986); Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985).

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2. Legislative bodies

Records of legislative bodies are subject to the FOIA to the same extent as records of any other public body. In Common Cause of West Virginia v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), the state Supreme Court invalidated the process by which the Legislature's Conferees Committee on the Budget traditionally prepared an informal but influential budget "digest" setting forth its view of the specific purposes for which general appropriations should be used. The court ruled the contents of the digest must be determined by the Conferees Committee in a public meeting, and that the Committee must create and maintain for public inspection "memoranda of the negotiations, compromises and agreements or audio recordings of committee or subcommittee meetings where votes were taken or discussions had that substantiate the material which is organized and memorialized in the Budget Digest." Id., Syl. Pt. 5.

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3. Courts

In West Virginia, the public has a presumptive right of access to a court proceeding and a trial court may limit this right only if there is a compelling countervailing public interest and closure of the court proceedings or sealing of court records is required to protect that interest. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 196 (W. Va.1999) (emphasis supplied). Court records are explicitly mandated to be open to public inspection under the Freedom of Information Act. Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). Access to court records is also guaranteed by the open courts provision of the state constitution (W. Va. Constitution, Article III, §  17) (see Daily Gazette v. W. Va. State Bar, 326 S.E.2d 705, Syl. Pt. 4) and by W. Va. Code §  51-4-2 (1981) ("[t]he records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof, except in cases where it is otherwise specially provided."), applied by the Supreme Court in Richardson v. Town of Kimball, 176 W. Va. 24, 340 S.E.2d 582 (W. Va. 1986). and Garden State Newspapers, Inc., v. Hoke, 520 S.E.2d 186, Syl. Pt. 4 (W. Va. 1999).

Moreover, the West Virginia Trial Court Rules provide that court officers and employees must comply with the FOIA and any person is entitled to access court records unless otherwise expressly provided by law. W. Va. Tr. Ct. R. 10.04(a) (1999).

All documents that relate "to the conduct of the public's business, and which are prepared, owned or retained by a court . . . are to be considered “public records.” FOIA requests to a court must be "directed to the particular court, circuit clerk, or other court employee who retains custody of the . . . public records sought." W. Va. Tr. Ct. R. 10.04 (d). However, "writings relating to the conduct of the public's business, but which are prepared, owned and retained by individuals other than court officers or employees, such as private or independent contractors, are not considered “public records.” W. Va. Tr. Ct. R. 10.04(c).

However, ''the right of public access to court records and proceedings is not absolute . . . [T]he right is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.'' Garden State Newspapers, Inc., v. Hoke, 520 S.E.2d 186, 192-193 (W. Va. 1999)).

There are several specific statutes, that make confidential narrow categories of court records, including certain court records relating to divorce (W. Va. Code §  48-2-27), adoption (W. Va. Code §  48-4-10) and juvenile records (W. Va. Code § §  49-5-17, 49-7-1; these sections were amended in 1997 to broaden the disclosure of juvenile records), tax information (W. Va. Code 11-10-5 (d)), and economic development assistance (W. Va. Code §  5B-2-1).

Courts have some limited discretion to order records sealed if they contain trade secrets or confidential business information. For example, parties in litigation may request a court to enter a protective order pursuant to Rule 26 (c)(7) of the W. Va. Rules of Civil Procedure sealing information provided by a party in the discovery stage of litigation (a court may order) "a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way".

However, sealing of court records may be challenged. In determining whether a record may be sealed from public access, a trial court must balance a citizen's presumptive right of access with a party's interest in confidentiality. The court may seal such records only if there is a compelling countervailing public interest and closure of the court proceedings or sealing of the documents is required to protect that interest. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 192 (W. Va.1999) (emphasis supplied). Even though certain court information is made confidential by statute, reporters cannot be punished for publishing lawfully obtained, truthful information of public interest. State ex rel. Daily Mail Pub. Co. v. Smith, 161 W. Va. 684, 248 S.E.2d 269 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979)

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4. Nongovernmental bodies

The Freedom of Information Act applies to "any other body . . . which is primarily funded by [a] state or local authority." In syllabus point one of Blower v. Educational Broadcasting Authority, the West Virginia Supreme Court adopted a five-part test to identify whether a given entity qualifies as a state agency:

In determining whether a particular organization is a state agency, we will examine its legislative framework. In particular, we look to see if its powers are substantially created by the legislature and whether its governing board’s composition is prescribed by the legislature. Other significant factors are whether the organization can operate on a statewide basis, whether it is financially dependent on public funds, and whether it is required to deposit its funds in the state treasury.

182 W. Va. 528, 389 S.E.2d 739, 740 (1990).

The FOIA does not specifically apply to nongovernmental bodies whose members include governmental officials unless the body "is created by state or local authority or . . . is primarily funded by the state or local authority." W. Va. Code § 29B-1-2(3).

In Queen v. West Virginia University Hospitals, the state Supreme Court ruled the FOIA applies to the WVU Hospitals corporation (“WVUH”) because, even though it was a "private" corporation "established under the general corporate provisions of West Virginia law" it was "created to take over and operate the university's medical center, and the corporation's exclusive function was made possible by an enabling statute which "laid out very specific requirements that the corporation had to meet. . . . Unlike the normal corporate entity, the statute was the sine qua non leading to the incorporation of WVUH and that body was, therefore, created by state authority." 365 S.E.2d 375, 386-87 (1987). The primary factors leading to the court's decision in Queen were that the new corporation had "statutorily specified purposes and directors, primarily public officers, who have fiduciary duties to the people of the state." Id. at 379. The court found it significant that provisions in the statute creating WVUH mandated "openness and accountability in the management of the corporation." Liberally construing the disclosure provisions of the FOIA the court held that the hospital corporation is a public body under FOIA and its records are subject to disclosure. Id. at 377.

In contrast, the court has held that the West Virginia University Foundation is not a public body under the FOIA. 4-H Road Community Ass’n v. W. Va. Univer. Found., 182 W. Va. 434, 388 S.E.2d 308 (1989). In ruling that the hospital corporation, but not the foundation, was "created by state authority," the court delineated the important differences in the nature of the two corporations:

Although WVUH was incorporated under the general corporate provisions of state law, it was incorporated as such only after the legislature mandated its creation. Under the statute, the former Board of Regents was authorized to transfer the public hospital's assets to the proposed corporate entity that had "statutorily specified purposes and directors [appointed by the Governor and subject to Senate confirmation], primarily public officers [nine of the eighteen directors served by virtue of their positions with the Board of Regents or the University Hospital], who have fiduciary duties to the people of the State of West Virginia [prohibition of mortgaging, public conflict of interest statements and public audits, as mandated in the enabling legislation]." The statute further provided that the hospital employees of the former Board of Regents were to remain employed by the corporation without becoming employees of the corporation.

. . .

In the case before the Court today, the Foundation was formed by private citizens pursuant to the general corporate laws of the state. No legislative mandate for such an entity predates its incorporation. It is not located on state property; does not utilize state employees; and selection of its Board of Directors, and their duties, are governed by the corporation's by-laws. While the president of the University serves on the Board of Directors of the Foundation, the president serves by virtue of the Foundation's by-laws, rather than legislative mandate, and serves in an ex officio capacity.

4-H Road Cmty. Ass’n v. W. Va. Univ. Found., 388 S.E.2d at 311 (citations in original are omitted).

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5. Multi-state or regional bodies

Multistate or regional bodies, such as planning authorities, usually will fit the FOIA definition of "public body" that they are "created by state or local authority or . . . primarily funded by the state or local authority" and thus will be subject to the FOIA. Alternatively, multistate or regional bodies may fall under FOIA's definition of public body that also includes "any board, department, commission council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority." W. Va. Code § 29B-1-2 (4).

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6. Advisory boards and commissions, quasi-governmental entities

Advisory boards and commissions, quasi-governmental entities are also likely to be held to constitute a "board, department, commission, council or agency" of a governmental unit, or to be created or primarily funded by such a body. In any of these circumstances, the Freedom of Information Act will cover the organization's records.   But see, Mayo v. W. Va. Secondary Schs. Activities Comm’n, 223 W. Va. 88, 672 S.E.2d. 224 (2008) (applying five-part test and holding Commission not a state agency because only one of five-part test satisfied).

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7. Others

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

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C. What records are and are not subject to the act?

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

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1. What kinds 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). The focus of the FOIA is information, not documents.  Farley v. Worley, 215 W. Va. 412, 420, 599 S.E.2d 835, 843 (2004). 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, 177 W. Va. 110, 350 S.E. 2d (1986), 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. However, Associated Press v. Canterbury, took a much more narrow, crabbed view of the statutory term “related to the conduct of the public’s business.” 224 W. Va. 708, 688 S.E.2d 317 (2009). The Court held that the definition of a “writing” contained in FOIA includes e-mail communications. But, 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 review 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 was criticized by commentators and by this Guide. See e.g., Taking Out The Context: A Critical Analysis of Associated Press v. Canterbury, 113 W. Va. Law Rev. 259 (2010).

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.” Subsequently, the 2015 West Virginia Legislature amended FOIA to recognize a broader interpretation of "public record" consistent with the transparency goals of the statute. W. Va. Code § 29B-1-2(4). That amendment rejected Canterbury's crabbed interpretation of "public record" and redefined the term to include "any writing containing information prepared or received by a public body, the content or context of which, judged either by content or context, relates to the conduct of the public's business W. Va. Code § 29B-1-2(4). (emphasis supplied).

Thus, West Virginia courts must now consider both the content of information possessed by a public body as well as the nexus between the information sought and the context in which the information was created. In Canterbury, for example, the Chief Justice's emails sought by the Associated Press were sent to the CEO of a litigant whose company had a multi-million-dollar appeal pending before the Supreme Court. After the 2015 amendment those facts would constitute relevant context when a court determines whether information in the emails related to the conduct of the public's business. If so related, the information would fall within the statutory definition of "public record."

Guidance as to the impact of the 2015 amendment of the definition of "public record" may be gleaned from Justice Workman's concurring and dissenting opinion in Associated Press v. Canterbury. Justice Workman suggested an analysis that would be relevant to a trial court's determination of whether requested document relates to the conduct of the public's business when judged by its content or context:

Two ways in which a consideration of “context” is not only relevant, but necessary, to a FOIA determination immediately come to mind. First, context necessarily must be considered where the meaning of a writing is not apparent on its face. For example, consider a hypothetical e-mail from a judge to a personal friend that simply states: “Go ahead and rent the boat.” A consideration of the context in which that e-mail was written is necessary to determine whether it contains information relating to “the conduct of the public's business.” If the judge and the recipient of that e-mail are merely discussing a planned weekend adventure, and the friend has no connection to the court or any pending cases, the e-mail is clearly personal and *732 **341 does not contain information relating to the conduct of the public's business. As such, it would not be a public record nor subject to disclosure under FOIA.

If, however, the judge sent the hypothetical e-mail to a personal friend who also happened to be hired by the judge to plan a court retreat, and the boat was being rented for that purpose using public funds, such statement does relate to the conduct of the public's business. Specifically, the context in which the e-mail was sent reveals that it relates to official court business and involves the expenditure of public funds. As such, it would be considered a public record and be subject to disclosure under FOIA.

In this example, the meaning of the content of the e-mail depends on understanding the circumstances in which it was written. Thus, “context” can be central to determining whether the content relates to “the conduct of the public's business.”

Second, the context in which a document is written can provide, in and of itself, information relating to the conduct of the public's business. The mere fact that Justice Maynard and Mr. Blankenship exchanged e-mails (the content of which had nothing to do with the case then pending before the Supreme Court of Appeals) demonstrates virtually nothing when examined solely by their literal content.9 But the public can garner from the context of the e-mails that the two are friends. That information is relevant under the circumstances of their roles as Justice and litigant, and thus such information should be subject to disclosure as a public record.

Associated Press v. Canterbury, 224 W. Va. 708, 731-731, 688 S.E.2d 317, 340-341 (2009) (Workman, J., concurring and dissenting).

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, subsequent to Withrow, 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 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., Syl. Pt. 4.

In Shepherdstown 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 rejected that argument, holding 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.” Id. Syl. Pt. 2.

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.

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2. What physical form of records are covered

The Freedom of Information Act applies to any conceivable physical form of "documentary materials":

'Writing' includes any books, papers, maps, photographs, card, tapes, electronic mail, recordings or other documentary materials regardless of physical form or characteristics.

W. Va. Code § 29B-1-2(5). A 1992 FOIA amendment added that "[i]f the records requested exist in magnetic, electronic or computer form, the custodian of the records shall make such copies available on magnetic or electronic media, if so requested." § 29B-1-3(3). See Veltri v. Charleston Urban Renewal Auth., 178 W. Va. 669, 363 S.E.2d 746 (1987) (ordering public body to make a tape recording of its open meeting available for public listening and copying under the FOIA).

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3. Are certain records available for inspection but not copying?

Under the literal terms of the FOIA, any "public record" subject to inspection also may be copied. However, the statute recognizes a narrow exception that permits public agencies to deny all access to certain records that could be damaged by handling, including records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage the record, archive, document or manuscript. W. Va. Code § 29B-1-4(6).

It seems certain that if particular documents could be inspected, but not copied, without the threat of damage, the courts would permit this approach as the least restrictive alternative.

Furthermore, the West Virginia Supreme Court of Appeals has recommended that "innovative measures" be used when FOIA requests are made for "personal" information concerning individuals. For example, to limit damage that might be caused by the disclosure of highly private personal information, the court has ordered that parents could read, but not copy, psychiatric records of a school bus driver. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986).

In a 2014 case decided by the Circuit Court of Kanawha County, a state environmental regulatory agency directed a FOIA requester to the agency's website where the agency asserted the requester could download the information it had requested. The requester had asked that the information it sought be provided in a computer excel spreadsheet. Previously, the public body had routinely provided such electronic files culling the information from Defendants' electronic databases. Appalachian Mountain Advocate, Inc. v. West Virginia Department of Environmental Protections, Civ. Action No. 14-C-985 (Kanawha County Cir. Ct., Oct. 20, 2014) (Slip Opinion) (hereafter "Appalmad").

The Appalmad court found that "it would take approximately 289 hours to compile [requested documents] . . . through the ePermitting website." However, if the requester retained a consultant to perform the work, "it would cost Plaintiff approximately $18,785." Further, "to compile the [information] for a calendar year, it would take approximately 598 hours, at a cost of $38,870." "In contrast," said the court, "it would take Defendants less than one hour to compile the same information, and the cost to Plaintiff would be $37.00."

The court held that making the information available only via the agency's website does not constitute the provision of a reasonable opportunity for the inspection and copying of public records because the time that it would take to inspect all of the requested public records through the ePermitting website placed an unreasonable burden on Plaintiff when compared to the ease with which Defendants could compile the responsive public records.

The Appalmad Court summarized its holding ordering the agency to provide an excel spreadsheet of the requested information:

Because the uncontested, expert testimony in this case establishes that the creation of an Excel spreadsheet file or any other usable electronic file containing the results of a search of Defendants' electronic . . . database does not result in the creation of a new record; because the federal case law holds that search results from an electronic database do not create new records; because the FOIA is to be liberally construed in favor of public access to public records; and because Defendants' referral of Plaintiff to the ePermitting website to obtain the information requested violates the FOIA because it does not provide Plaintiff with "proper and reasonable opportunities for the inspection and examination of the records", the Court rejects Defendants' argument that it is not obligated under FOIA to search its electronic database of DMRs for records responsive to Plaintiff's requests and provide those results to Plaintiff.

Appalachian Mountain Advocate, Inc. v. West Virginia Department of Environmental Protections, Civ. Action No. 14-C-985 (Kanawha County Cir. Ct., Oct. 20, 2014) (Slip Opinion).

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4. Telephone call logs

There are no West Virginia cases relating to the disclosure of telephone call logs. However, it is likely that the court would interpret the term "public record" to include such logs possessed by a public body subject to possible claims of exemption for information of a personal nature, law enforcement records, or undermining the deliberative process privilege. See W. Va. Code § 29B-1-4 (2), (4) and (8). Should such claims of exemption being made by a public body, the court should narrowly construe the exemption claimed and embrace FOIA presumption of disclosure.

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5. Electronic records (e.g., databases, metadata)

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

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a. Can the requester choose a format for receiving records?

W. Va. Code § 29B-1-3(3) requires that copies of records that "exist in magnetic, electronic or computer form" be made "available on magnetic or electronic media, if so requested." There are no state Supreme Court cases where the application or interpretation of this requirement has been an issue. There is no plausible reason for a public body not to honor a FOIA requester's preference for the format of information they prefer when the agency discloses that information. The overarching goal of the FOIA is to provide all persons "full and complete information regarding the affairs of government." If copying charges are substantially greater than the cost of downloading information from public records to a computer disc, making public access to the records more expensive would undermine the Act's goal of transparency.

Unfortunately, some West Virginia public bodies, reportedly vary in their willingness to comply with this section. It is common today for the state’s agencies to obtain, compile and/or retain records in electronic formats. In the second decade of the twenty first century it has become common for public bodies to post considerable information on internet websites where it can be downloaded by citizens without making FOIA requests.   It is also common for FOIA requesters to ask for and obtain information provided in magnetic, electronic, or similar electronic formats.

It is reported that some public bodies charge considerably more than the actual cost of a computer DVD or CD, thus raising the issue of violation of W. Va. Code § 29B-1-3 (5) that limits charges imposed on FOIA requests to the “actual cost of reproduction."    Other policies, procedures and practices may be instituted by public bodies as a result of the significant changes in information gathering and because of the widespread use of computers, smart phones, other electronic communication devices and the internet.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

There are no state Supreme Court cases addressing whether someone can obtain a customized search, and agencies willingness to do so reportedly varies. Many West Virginia public bodies search their computer databases and provide printouts of requested information.   To be consistent with the broad disclosure mandate of the FOIA, public bodies should provide FOIA requesters with records that exist in magnetic, electronic or computer formats, and requesters should be entitled to have an agency search its databases to extract requested  information. It is impossible to distinguish between an agency search through file cabinets for paper records and a computer search for records – except that computer searches are likely to take less time and copying electronic format records to a disc would in most cases be less costly than duplication of paper records using a copy machine.

Consistent with this perspective, in Appalachian Mountain Advocate, Inc. v. West Virginia Department of Environmental Protection, Civ. Action No. 14-C-985 (Kanawha County Cir. Ct., Oct. 20, 2014) (Slip Opinion) the Kanawha Circuit Court agreed that a public body isn't required to create a new public record, citing, Affiliated Const. Trade Found. v. Regional Jail & Correctional Facility Auth., 200 W. Va. 621, 625 (1997). The court emphasized, however, that "neither the computer program used to search an electronic database, nor the results of a search of an electronic database constitute the creation of a new public record. The opinion relied upon Schladetsch v. U.S. Dept. of H.U.D. and quoted it at length:

The FOIA applies equally to all agency records, regardless of format. “Although accessing information from computers may involve a somewhat different process than locating and retrieving manually-stored records, these differences may not be used to circumvent the full disclosure policies of the FOIA . . . The fact that the agency may have to search numerous records to comply with the request and that the net result of complying with the request will be a document the agency did not previously possess is not unusual in FOIA cases, nor does this preclude the applicability of the Act.”

Civ. No. 99-0175, 2000 WL 33372125 at 3 (D.D.C. Apr. 4, 2000), citing, Yeager v. DEA, 678 F.2d 315, 321 (D.C.Cir.1982); Disabled Officer's Assn. v. Rumsfeld, 428 F.Supp. 454, 456 (D.D.C.1977), aff'd, 574 F.2d 636 (D.C.Cir.1978).)

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c. Does the existence of information in electronic format affect its openness?

To date, there has been no distinction between information in electronic format and more traditional format. State agencies routinely provide information to FOIA requesters in electronic format. There is no rational reason why the fact that information in electronic format should affect the public's right to disclosure under FOIA. Indeed, the FOIA definition of "public record" includes information in electronic format making explicit that such information stands on the same footing as paper records.

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d. Online dissemination

When requested records are transferred to FOIA requesters by e-mail or are downloaded by requesters from a government website, no fees should be assessed as the government body would have incurred no “actual cost of reproduction.”

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

There have been no court decisions or agency guidance indicating how software is to be treated for purposes of FOIA analysis. Nor have there been any court decisions or agency guidance indicating how file metadata is to be treated for purposes of FOIA analysis.

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Freedom of Information Act permits each public body to "establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records." W. Va. Code § 29B-1-3(e). Moreover, a public body "may . . . provide for reasonable limitations as to the hours and methods of viewing and cost of copying, but in no circumstances may these limitations be used so as to prevent a person from access to the records." Richardson v. Town of Kimball, 340 S.E.2d at 583 n.2 (1986). Considering the broad public policy favoring disclosure of government information as a means of furthering core democratic principles, "the actual cost of reproduction" should be narrowly construed. Such a construction would limit the per page cost to that which is comparable to commercial copying charges.

While charges for research and search time may be imposed under the federal FOIA, a 2015 West Virginia FOIA amendment explicitly prohibits such charges. W. Va. Code § 29B-1-3(e). ("A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.").

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2. Particular fee specifications or provisions

The FOIA does not allow separate charges for searches, duplication, computer access or printouts, microfiche, or non-print audio or audio-visual records. Since the statute only authorizes charges for the reasonable cost of "reproduction."  W. Va. Code § 29B-1-3(e) explicitly provides that a public body “may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records,” but “may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.” (Emphasis added). This language permits of only one interpretation. A public body may charge fees to reimburse only its actual costs in copying records.

It should be noted that other fees may be expressly authorized a statute other than FOIA.  See generally W. Va. Code § 59-1-1 et seq. (specific fees and allowances permitted to be charged by some public bodies). An exception to the general rule confining fees to the actual cost of reproduction, W. Va. Code § 59-1-10 that provides a schedule of fees in excess of the actual cost of reproduction to be charged by county clerks for copies of  various documents required by statute to be maintained by such officers. The Attorney General has advised county clerks that this fee schedule is mandatory. Op. Att'y Gen., September 8, 1986. Although the Attorney General's opinion does not mention the Freedom of Information Act, some county clerks now charge these higher fees, rather than the "actual cost in making reproductions," for documents provided under the FOIA.

Another example of public bodies being allowed to charge substantially more than the FOIA permits, is W. Va. Code § 59-1-11 that allows certain fees to be charged by the clerk of a circuit court. Subsection (a)(2) of that section allows a charge of one dollar per page "for a transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office." The one-dollar fee is significantly in excess of the actual cost of reproduction allowed under FOIA. If a circuit court clerk seeks to charge a dollar per page fee, a FOIA requester should ask either to view the requested court records instead of copying them or ask that they be emailed or provided on a computer disc. Although no West Virginia court has addressed the issue, it would be reasonable to assert that a one dollar per page fee would chill citizens and the media's right of access to court documents and that only the actual cost of a computer disc should be charged for providing electronic records rather than copying them.

Another option for citizens seeking information in circuit court and other public bodies files, would be to use an electronic device (e.g. a cell phone or tablet) to photograph such public records. Taking a photograph of a government record costs a public body nothing and imposes no burden on the body. Moreover, members of the public have always been allowed to take notes of public records. A citizen’s use of a camera to document a record is more efficient, accurate and functionally no different than notetaking.

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3. Provisions for fee waivers

The FOIA does not contain any specific provisions for fee waivers when disclosure would be in the public interest. However, it is important to understand that the statute merely authorizes, and does not require, public bodies to charge for copies. Therefore, public bodies have discretion to waive copying charges when it would serve the public interest.  Journalists seeking disclosure of  public information pursuant to the West Virginia FOIA should routinely include a request for a waiver of reproduction costs on the ground that the information will be used to further the public interest by informing citizens about the activities of their government and public officials.

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4. Requirements or prohibitions regarding advance payment

The Freedom of Information Act neither requires nor specifically prohibits a public body requirement of payment of fees in advance of disclosure.

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5. Have agencies imposed prohibitive fees to discourage requesters?

In some states, the use of prohibitive fees is a tactic used by public agencies to discourage FOIA requests. In West Virginia there are some reports of government agencies charging FOIA requesters onerous copying and other fees notwithstanding the clear language and intent of W. Va. Code, § 29B-1-3(e) (“The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records. A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.”)

An obvious, and frequently successful tactic of requesters has been simply to refuse to pay a clearly unreasonable bill or, if advance payment was required, demand and sue for a refund. Few agencies would be interested in defending such a seemingly losing cause, particularly if the requester makes known her intention to seek an award of attorneys' fees from the agency. Another option of a requester is to ask for information to be downloaded to a flash drive or disc, or to ask to review the public records in the office of the public body --- rather than seeking to have records copied by the body’s employees. A visual review of records in an agency office will facilitate identifying documents that should be photocopied from those that are not responsive to the requester’s needs.

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6. Fees for electronic records

E. Who enforces the Act?

Citizen lawsuits are recognized as the mechanism by which the West Virginia Freedom of Information Act is enforced. W. Va. Code § 29B-1-5(1) provides that "[a]ny person denied the right to inspect the public record of a public body may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept."

Furthermore, W. Va. Code § 29B-1-5(2) provides that:

[I]n any suit filed under subsection one of this section, the court has 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. The court shall determine the matter de novo and the burden is on the public body to sustain its action. The court, on its own motion, may view the documents in controversy in camera before reaching a decision. Any custodian of any public records of the public body found to be in noncompliance with the order of the court to produce the documents or disclose the information sought may be punished as being in contempt of court.

The West Virginia Open Governmental Proceedings Act is also enforceable through civil lawsuits filed by citizens. See W. Va. Code §§ 6-9A-3 ("[u]pon petition of any adversely affected party") and 6-9A-6 ("any citizen").

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1. Attorney General's role

The West Virginia Freedom of Information Act does not explicitly mention the Attorney General's role in enforcement of the Act. The West Virginia Open Governmental Meetings Act provides that "It is the duty of the attorney general to compile the statutory and case law pertaining to this article and to prepare appropriate summaries and interpretations for the purpose of informing all public officials subject to this article of the requirements of this article." W. Va. Code § 6-9A-12. See https://ago.wv.gov/publicresources/Documents/2017-3-10%20Open%20Meetings%20Booklet%20(Q0236711xD6D48).pdf. State agencies and other governmental entities may request the Attorney General to render an official opinion regarding issues relating to either the West Virginia FOIA or the Open Governmental Proceedings Act. W. Va. Code § 5-3-1.

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2. Availability of an ombudsman

Neither the West Virginia Freedom of Information Act nor the West Virginia Open Governmental Proceedings Act provides for an ombudsman.

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3. Commission or agency enforcement

Neither the West Virginia Freedom of Information Act nor the West Virginia Open Governmental Proceedings Act provides for commission or agency enforcement.

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F. Are there sanctions for noncompliance?

The FOIA was amended in 2001 to provide that "any custodian of any public records who willfully violates the provision of [FOIA] may be charged with a misdemeanor and upon conviction the custodian may be fined not less than two hundred dollars nor more than one thousand dollars or be imprisoned for more than twenty days, or both. W. Va. Code § 29B-1-6.

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

West Virginia government agencies are not required to make information available on the internet even if it is not requested. However, most state agencies post diverse categories of information on their web sites. It is advisable to make an internet search to determine if the information sought has been provided on an agency web site, prior to filing a FOIA request.

Interestingly, the FOIA was amended in 2015 to require public bodies in receipt of freedom of information requests to provide information to the Secretary of State relating to, at a minimum, "the nature of the request, the nature of the public body's response, the time frame that was necessary to comply in full with the request; and the amount of reimbursement charged to the requester for the freedom of information request." § 29B-1-3a (a). The public body need not provide to the Secretary of State the actual public records that were the subject of the FOIA request.

The Secretary of State is required to maintain a publicly available internet electronic data base containing this information provided by public bodies. The Secretary must provide a form on the website to be used by public bodies to report the results of each freedom of information request, providing the nature of the request and the public body's response thereto, whether the request was granted, and if not, the FOIA exemption asserted to deny the request. See, W. Va. Code § 29B-1-3 (f). To access the Secretary of State’s database and related information: https://apps.sos.wv.gov/FOIA/Requests.

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3. Records retention requirements

There are few West Virginia laws or regulations requiring document retention for specific periods of time. An exception is the requirement that the Secretary of State must retain for ten years all notices of open meetings filed electronically by governing bodies of the executive branch. W. Va. Code § 6-9A-3.

The secretary of the West Virginia department of administration is designated as the “state records administrator,” W. Va. Code § 5A-8-5. The administrator is required to “establish and administer in the department of administration a records management program, which includes the creation, utilization, maintenance and retention, preservation and disposal of state records. The administrator is further mandated to “establish and maintain a program for the selection and preservation of essential state records” and also must “advise and assist in the establishment of programs for the selection and preservation of essential local records.” Id. The Secretary of State is required to retain copies of all meeting notices for ten years. W. Va. Code § 6-9A-3(f).

Except as provided in W. Va. Code § 57-1-7a, “no record shall be destroyed or otherwise disposed of by any agency of the state, unless it is determined by the administrator and the director of the section of archives and history of the division of culture and history that the record has no further administrative, legal, fiscal, research or historical value.” If the administrator decides that a record “has no further administrative, legal, fiscal, research or historical value” the administrator must “give written notice of her intention to direct the destruction or disposal of the record to the director.” If the director does not retrieve the original document from the administrator within thirty days, the administrator may direct the destruction or other disposal of the original.

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4. Provisions for broad, vague, or burdensome requests

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

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A. Exemptions in the open records statute

"Three cardinal rules must be remembered in any FOIA case regardless of which exemption is claimed to be applicable. First, the disclosure provisions are to be liberally construed. Second, the exemptions are to be strictly construed. Finally, the party claiming exemption from the general disclosure requirement . . . has the burden of showing the express applicability of such exemption to the material requested." Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), Syl. Pts. 1 and 2 (“Gazette I”)(citations omitted). As noted, in 2003, the state Legislature amended W. Va. Code § 29B-1-4 adding eight new exemptions relating to limiting terrorists access to sensitive information; in 2009 three additional exemptions were added by amendment to FOIA.  See W. Va. Code § 29B-1-4 (9)-(21).

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1. Character of exemptions

There is no general exemption in the West Virginia statute and there is no authority for an agency or court to deny access to records based upon its own notion of what "the public interest" requires. The only public records to which citizens may be denied access under the Freedom of Information Act are those containing the twenty categories of information made "specifically exempt from disclosure" under W. Va. Code § 29B-1-4 (a)(5) or information specifically exempted from disclosure by other provisions of West Virginia Law. § 29B-1-4 (a)(5).

While the issue has not been litigated, it is likely that the West Virginia Supreme Court would follow the lead of the federal courts and interpret the West Virginia FOIA exemptions to be discretionary rather than mandatory.

It is important to keep in mind that the Freedom of Information Act is not the only source of access to documents. "The State FOIA and the common law principles are not . . . coextensive but are interrelated." Daily Gazette v. Withrow, 350 S.E.2d at 746 n.9. Even if a particular record falls within one of the FOIA exemptions, it still might be disclosable under the common law or a more specific statute providing for public access to such records.

The West Virginia Freedom of Information Act is similar to the federal statute in many respects. The West Virginia Supreme Court has recognized "the close relationship between the federal and West Virginia FOIA . . . in particular the value of federal precedents in construing our state FOIA's parallel provisions." Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”). It should be noted, however, that the new exemptions added to W. Va. Code § 29B-1-4 since 2003 are not patterned after those contained in the federal FOIA, 5 U.S.C. § 552 (b) (1)-(9).

The West Virginia court has identified notable differences between the state and federal acts, regarding the law enforcement record exemption, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985), and the exemption for personal information, Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E. 2d 541 (1986). The Cline Court cautioned that, although the state and federal exemptions for personal information are similar:

The statutes differ in an important regard. Under the United States Code, private information should be disclosed unless its disclosure would "constitute a clearly unwarranted invasion of personal privacy." The West Virginia Code, on the other hand, exempts disclosure 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."

While the burden of proof is always on the agency resisting disclosure, the burden is different in the two codes. The Federal Code unambiguously favors disclosure of personal information with the resisting party having to show clear evidence of an unwarranted invasion of personal privacy. The West Virginia Code, with some ambiguity, favors nondisclosure of personal information unless public interest clearly requires disclosure. The simplest explanation of these differences is as follows: If the scales weigh heavily in favor of disclosure, both codes require disclosure; if the scales weigh heavily in favor of nondisclosure, both codes require nondisclosure; but, if the scales weigh even or near even, the Federal Code favors disclosure while the West Virginia Code favors nondisclosure.

Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541, 545 (1986) (citations and footnotes omitted).

The Hechler Court also emphasized a significant difference between the state and federal exemptions for law enforcement information:  It is clear that Federal FOIA exemption 7 "includes the enforcement of both civil and criminal federal laws." It is not so clear whether W. Va. Code, § 29B-1-4(4) includes regulatory agencies" proceedings directed only at invocation of civil sanctions, such as suspension or revocation of a license issued by an agency, and not to enforce penal laws. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d  at 813.

The Hechler Court also noted a more fundamental difference:

The law enforcement exemption to the State FOIA . . . appears at first blush to be a somewhat broader exemption than exemption 7 to the Federal FOIA, amended in 1974 to limit exemption thereunder to six types of situations in which disclosure is likely to cause specified types of injury. We do not, however, believe that W. Va. Code §  29B-1-4(4) creates a blanket law enforcement exemption, as did the pre-1974 Federal FOIA, because our statute, unlike the pre-1974 Federal FOIA, does not exempt entire "files" labeled "law enforcement" and does not expressly limit disclosure to "authorized private parties," as did the pre-1974 Federal FOIA.

175 W. Va. 434, 333 S.E.2d  at 809 n.7.

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2. Discussion of each exemption

The West Virginia Freedom of Information Act specifically exempts from disclosure twenty-one categories of information. Each of these exemptions, and Supreme Court decisions interpreting them, are discussed below.

  1. Trade secrets

The first FOIA exemption relates to trade secrets:

Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern [sic], process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors.

W. Va. Code § 29B-1-4(1). The scope of this exemption has never been interpreted by the West Virginia Supreme Court of Appeals, although in Queen v. WVU Hospitals, 179 W. Va. 95, 365 S.E.2d 375, 382 (1987), the court summarily rejected the "conclusory" argument of WVU Hospitals that certain of its contracts should be exempt from disclosure under this provision and that it should be allowed to maintain “business confidentiality.” The Queen Court emphasized that FOIA exemptions are to be strictly construed." Id.

The trade secrets exemption was revisited briefly by the court in AT&T Communications of W. Va. v. Public Service Commission of W. Va., 188 W. Va. 250, 423 S.E.2d 859 (1992). In that case, public utilities sought a protective order from the Public Service Commission covering all information contained in an annual report that utilities were required to file with the PSC. The court ruled the utilities were entitled to confidential treatment of the information only if they first established, by clear and convincing evidence, they were likely to be harmed by disclosure of "a trade secret, expansively defined" under the Freedom of Information Act. The court emphasized, "[a]s an administrative agency, the PSC has a responsibility to disclose as much information to the public as it can." Id. at 862.

Confidentiality provisions for trade secrets, similar but not identical to the FOIA exemption, are contained in several other specific West Virginia statutes. These include W. Va. Code §  5D-1-21 (Public Energy Authority records relating to secret processes or secret methods of manufacture or production); W. Va. Code §  16-20-11a (Air Pollution Control Commission records containing "methods or processes entitled to protection as trade secrets") and W. Va. Code §§  31-19-19, 20-5C-21 (records of the Community Infrastructure Authority or the Water Development Authority under DNR "relating to secret processes or secret methods of manufacture or production").

A new exemption was amended into an economic development section of the West Virginia Code in 1997. A direct response to the decision in Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996)(“Gazette I”), the following was added to W. Va. Code § 5B-2-1:

Any documentary material, data or other writing made or received by the West Virginia development office or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business shall be exempt from the provisions of [the Freedom of Information Act].

A proviso to the new law requires disclosure of "any agreement entered into or signed by the development office or public body which obligates public funds . . . as of the date the agreement is entered into, signed or otherwise made public." W. Va. Code § 5B-2-1.

  1. Personal information

The second exemption, which may be the most difficult to apply, exempts:

Information 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: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his own personal, medical or similar file.

W. Va. Code § 29B-1-4(2).

“The primary purpose of the invasion of privacy exemption . . . is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Syl. Pt. 6, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985); Syl. Pt. 6, Highland Mining Co. v. W. Va. Univ. Sch. of Medicine, 235 W. Va. 370, 774 S.E.2d 36, (2015). One commentator has observed, "[t]he language of the exemption suggests that it is available only to individuals and not "artificial persons" such as corporations." Alfred S. Neely, IV, Administrative Law in West Virginia, § 7.09 at 552  (Michie Co. ed., 1982) (hereafter "Neely"). The plain language of the statute supports this narrow interpretation of "information of a personal nature" and is consistent with the Supreme Court's frequent admonition that such exemptions be strictly construed.

The exemption for personal information is the only exemption that requires a balancing of competing interests. Understandably, it has produced the most complex test for determining whether particular information should be disclosed.

The Supreme Court of Appeals has examined this exemption in six  cases, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985),  Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986), Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), Smith v. Bradley,  223 W. Va. 286, 673 S.E.2d 500 (2007)  In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (W. Va. 2008), and Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

In Hechler, the court employed a two-pronged inquiry in deciding whether a public body correctly withheld records under the privacy exemption. First, it determined whether the requested records were “personal,” “medical,” or “similar” files. Second, when the records fell into one of those categories, the court "weighed an individual’s right of privacy against “the public’s right to know.” The court concluded the exemption "does not apply to a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information is not personal in nature but public facts, and since the risk of harm from disclosure is speculative." 333 S.E.2d at 802.

In Child Protection Group v. Cline, the court analyzed the competing interests underlying the exemption and devised a five-part test for deciding whether access to personal information should be allowed:

  1. Whether disclosure would result in a substantial invasion of privacy; a court must determine the seriousness of the invasion.
  2. The extent or value of the public interest and the purpose or object of the requester.
  3. Whether the information is available from other sources.
  4. Whether the information was given with an expectation of confidentiality.
  5. Whether it is possible to mould relief so as to limit the invasion of individual privacy.

Syl. Pt. 2, 177 W. Va. 29, 350 S.E.2d 541 (1986). Cline describes how this test should be applied.

It is worth reprinting here at length:

First, the court must determine whether disclosure would result in an invasion of privacy and, if so, how serious. This is a two-part test. The first part is whether there is a substantial invasion of privacy. Private information is something that affects or belongs to private individuals as distinct from the public generally. The invasion into the private information must be substantial. Information of a non-intimate or public nature may be disclosed.

If there is a substantial invasion of privacy involved, the court must measure the seriousness of the invasion. . . . [W]eighing the extent of the invasion of privacy, courts must look at the extent to which the release of the information would cause an ordinary man in the time and place of the private individual involved, embarrassment or harm . . . .

Second, the court looks for the extent or value of the public interest, purpose or object of the individuals seeking disclosure. Again, two tests are involved. The first is the value of the public interest. The interest may be pecuniary, or the public may have an interest because their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity. [The public interest that has received the greatest protection is the interest in honest and efficient government.]

The second test also concerns the purpose for which the information is sought. If the information is sought to provide for something that would be useful to the public, then the courts will weigh this favorably. To the contrary, where a misuse of information may result, the courts are wary of ordering disclosure.

Third, the court asks whether the information is available from other sources. If the information sought is available in publicly obtainable books and records, then the court should simply allow the plaintiff access to information that he would eventually get anyway. If the information sought is available in a format that would be less intrusive to individual privacy, the courts should protect the privacy interests and force the plaintiff to use the less intrusive format. Finally, if there is absolutely no other place or method to gather the information than from the particular Freedom of Information Act request before the court, this is a factor in favor of disclosure.

Fourth, the court examines whether the information was given with an expectation of confidentiality. . . . An agreement or expectation of confidentiality, while a factor, will not override the Freedom of Information Act.

Finally, a court must ask whether it is possible to mould relief to limit the invasion of individual privacy. To release or not to release is not an "all or nothing" decision under the Freedom of Information Act where personal material is concerned. The courts have consistently taken steps such as the deletion of certain personal data from the documents to be released so as to protect the privacy interests of individuals involved. . . . Trial courts should be encouraged to take innovative measures to limit the invasion of individual privacy whenever disclosure is required.

Child Protection Group v. Cline, 350 S.E.2d at 544-45 (1986). See also, In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008).

Cline presented the court with a particularly difficult situation. A group of parents had sought to review and copy the medical records of a school bus driver, whose bizarre conduct while driving their children had led to his suspension and compelled psychiatric treatment. Upon the driver's reinstatement, the school board sent a letter to the parents assuring them of the driver's competency but also including "short, ambiguous quotes from his psychiatrists." The parents demanded access to the full psychiatric record. The court's resolution of this difficult conflict, summarized below, represents an innovative — and highly pragmatic — example of attempting to accommodate all competing interests to the maximum extent possible:

There is no question that disclosure would cause an invasion of privacy. An individual's medical records are classically a private interest. Further, it is difficult to imagine an item more potentially embarrassing than individual psychiatric reports. . . . These reports were surrendered to the school board under a justifiable expectation of confidentiality. . . . Certainly, only a most compelling interest could justify the release of the records under the Freedom of Information Act.

Nevertheless, we believe that the parents of the children assigned to Mr. Roberts' bus have such a compelling interest in his mental condition. Mr. Roberts' statements and actions in front of the children raise serious concerns about his ability to safely pilot his school bus. . . . [T]he parents need more. . . . The parents deserve to see all of the evidence on Mr. Roberts' condition. . . . [I]t is the safety of the children which we find to be a factor of overriding importance, tipping the scales clearly and convincingly toward disclosure . . . .

In order to dilute what is a massive invasion of Mr. Roberts' privacy, we take the somewhat unprecedented step of ordering a less than full disclosure of the records, limiting their viewing only to those who have a "need to know." The public at large has no need to know about Mr. Roberts' medical condition. Mr. Roberts does not make decisions in his job which will affect anyone other than those riding his bus. He is not a high elected official, but a humble public servant. No public interest would be served by a general release of Mr. Roberts' records. Therefore, we hold that the public at large does not meet the test set out in § 29B-1-4(2) and the public at large should not be allowed to view Mr. Roberts' medical reports.

In order to best fit the equities of this unusual case, we therefore fashion the following remedy. (1) All relevant information in Mr. Roberts' personnel and medical files shall be open to inspection by any parent whose child is assigned to Mr. Roberts' bus. The records shall be kept in a convenient place and open to inspection during normal business hours. The parents, however, shall not be allowed to photocopy any records. (2) In the event the parents collectively or any one of them wish to investigate the possibility of legal action in this regard, their attorney shall be allowed one complete photocopy of Mr. Roberts' records. . . . (3) No general public dissemination of this information should be allowed without the permission of Mr. Roberts and the Board of Education of Gilmer County.

Child Protection Group v. Cline, 350 S.E.2d at 545-46 (1986).

In Robinson v. Merritt, 180 W. Va. 26, 375 S.E.2d 204 (1988), the court applied the Cline test, ruling that an attorney representing injured workers was not entitled to inspect Workmen's Compensation Fund records containing names, addresses, employer information, and data regarding the type of injuries sustained by Workmen's Compensation recipients.

The Robinson court ruled that records will not be disclosed if the FOIA requester "fails to present, by clear and convincing evidence, a legitimate reason sufficient to overcome the privacy exemption  and an adequate source of information is already available., Id., Syl. Pt. 3.

In Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), a person (Manns) arrested by city police officers sued the city and its police chief under the FOIA. He sought disclosure of records of the outcomes of police department internal investigations of every officer against whom civil or criminal complaints had been filed regarding their behavior --- in the course of employment --- or otherwise. Manns asserted that a police officer had used excessive force in carrying out her arrest. The City initiated an internal investigation.  It also asked the Federal Bureau of Investigation to conduct an independent investigation. Both investigations exonerated the officer. In its response to Mann's FOIA request, the City produced about half of the records requested; it objected to supplying the remaining documents and information.

The Manns Court explained that FOIA provisions, addressing the confidentiality of records versus their availability to the general public, are aimed at protecting interests distinct from those at issue when records are requested in conjunction with a civil rights action, Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), citing Maclay v. Jones, 208 W. Va. 569, 574, 542 S.E.2d 83, 88 (2000) (civil rights lawsuit plaintiffs could obtain a state trooper's personnel file and portions of records in civil discovery relative to an internal affairs investigation of complaints filed against the trooper).

The Manns Court first determined that the records requested contained “information of a personal nature such as that kept in a personal, medical or similar file” as provided in the FOIA, W. Va. Code § 29B-1-4(2). Then, applying the Cline five factor balancing test, the Manns found that the public interest did not require the disclosure of the requested information.

The Court opined that:

Clearly, disclosure of the information would result in a substantial invasion of privacy. As noted above, the request in this case would require the disclosure of all claims of misconduct no matter how egregious, unfounded, or potentially embarrassing. In addition, the information was obviously given with an expectation of confidentiality as the appellants' policy and procedural manuals require all investigative reports to be “treated with the strictest of confidence.” Furthermore, the expectation of confidentiality is crucial to continued reports of possible misconduct. This Court is certainly mindful that “the lawfulness of police operations is a matter of great concern to the state's citizenry.” However, our concern in Maclay that “compelled disclosure of police investigatory materials might result in ‘fishing expeditions' and thereby encourage frivolous litigation” leads us to conclude that the public interest does not require the disclosure of the requested information.

Manns v. City of Charleston Police Dept., 209 W. Va. 620, 626, 550 S.E.2d 598, 604 (2001), (Citations omitted).  In dicta, the Manns Court observed that it believed some of the requested records also fell within the FOIA's law enforcement exemption, W. Va. Code § 29B-1-4(4) (exempting “records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.” the Court also noted that FOIA’s “internal memoranda” exemption might shield some police records from disclosure. W. Va. Code § 29B-1-4(8). Because the Court resolved the appeal by holding the requested documents exempt under the personal records exemption, it did not decide if the exemptions, mentioned in dicta, would bar disclosure of the documents requested by Manns.

In Smith v. Bradley, 223 W. Va. 286, 673 S.E.2d 500 (2007), the Court held that university student, peer, and chair reviews and job performance evaluations of a non-tenured university faculty member could be withheld under the “records of a personal nature” exemption of FOIA, W. Va. Code § 29B-1-4(2). The trial court had found that the professor’s job performance evaluations constituted personal information kept in a personal or similar file. The court held that disclosure of these evaluations in an un-redacted form would invade the privacy of faculty members, while disclosure in a redacted form would not be an invasion of privacy. Id. at 223 W. Va. at 290-291, 673 S.E.2d at 504-505.

In Smith the Supreme Court upheld the trial court, concluding that the release of the evaluations in un-redacted form would also constitute a substantial invasion of privacy of the individuals who provided the evaluations.  In applying the Cline balancing test, the Court found the public interest weighed heavily in favor of non-disclosure. The evaluators “had a reasonable expectation that their responses were confidential.” 223 W. Va. at 292, 673 S.E.2d at 506. Confidential evaluations “help to foster the higher education system's need for an effective faculty evaluation system” and “public disclosure of evaluations will necessarily lead to a less effective evaluation system.” Id.

“It is possible" said the court, "that a vindictive supervisor could use the public nature of the performance evaluations to personally attack employees whom he or she dislikes.” Moreover, the court observed, “sincere evaluators will necessarily be less likely to be critical of their colleagues if un-redacted evaluations are easily available to be viewed by the public and by co-workers.” Id. The Court also expressed the concern that “some evaluators may not provide in-depth or truthful evaluations of their colleagues fearing that they could personally be the subject of retribution or libel lawsuits for any information found in evaluations, even if truthful, that portray colleagues in a negative manner.”

In re Charleston Gazette FOIA Request, involved a newspaper's FOIA request for the activity logs and payroll time sheets of police officers who were accused of "double dipping." 222 W. Va. 771, 671 S.E.2d 776 (W. Va. 2008). The City denied the request relying on Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (W. Va. 2001). The West Virginia Court had not previously addressed whether payroll records of public employees must be disclosed under FOIA, although most other states considering the issue had construed their open records laws to require disclosure. Many jurisdictions had also reached the same conclusion under their laws regarding payroll records, attendance, employment, vacation, or sick leave records, reasoning that such records do not include information of a personal nature to which an expectation of confidentiality attaches.

In re Charleston Gazette FOIA Request concluded that the release of the time records did not constitute a substantial invasion of individual privacy because there was no evidence that any police officers had a reasonable expectation that their time records would remain confidential. Also, there was no evidence the City considered the time records to be an important part of its employment records. The Court found that the newspaper sought the information “for a valuable public interest and that the information would not otherwise be available from other sources.” The time sheets were held to be public records not exempt from disclosure. 222 W. Va. 771, 788,  671 S.E.2d 776, 783 (2008).

In dicta, the Court further “acknowledge[d] that public documents relating to such matters as names of public employees, their designation, an employee number, payroll records, time sheets, salary amounts, attendance records, numerical data dealing with a public employee's vacation or sick leave records, retirement service credit, and statutorily withheld federal, state and city taxes, are clearly public records and subject to disclosure.” Id. The dicta also observed that, “without delineating the precise scope of the right to privacy afforded by West Virginia's FOIA, we can state with confidence that disclosure of such records would not ‘constitute an unreasonable invasion of privacy’ ”.  Id. The Court continued:

They simply are not the kind of private facts that the Legislature intended to exempt from mandatory disclosure. Likewise, these ministerial and plainly public documents could not be considered, “[r]ecords of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement” as prescribed by W. Va. Code § 29B-1-4(a)(4).

Furthermore, even if some of the aforementioned records were being used as a part of an internal criminal investigation, they would still be subject to disclosure under our FOIA. See Syl. Point 11 of Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985), (holding that investigatory records portion of FOIA does not include “information generated pursuant to routine administration or oversight, but is limited to information compiled as part of an inquiry into specific suspected violations of the law”).

The City points out that six of the twenty-eight-time sheets were under seal in other court proceedings. However, the Court indicated that an agreement as to confidentiality between a public body and the supplier of information may not override the Freedom of Information Act. See Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985)

In re Charleston Gazette FOIA Request, 222 W. Va. at 788-789, 671 S.E.2d at 783-784 (2008). The Court ordered that the newspaper be allowed to inspect and copy the City’s payroll records.

In Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (Syl. Pt. 6 and 7)(2013), the Supreme Court addressed issues relating to a newspaper's FOIA request for information relating to citizen complaints filed against West Virginia State Police officers. The court balanced the officers' individual right of privacy against the public’s right to know, citing the five-part test of Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 at 542 (1986).  The Smithers court held that "[c]onduct by a state police officer while the officer is on the job in his or her official capacity as a law enforcement officer and performing such duties, including but not limited to, patrolling, conducting arrests and searches, and investigating crimes does not fall within the West Virginia Freedom of Information Act invasion of privacy exemption set forth in West Virginia Code § 29B–1–4(a)(2) (2012). Id., Syl. Pt. 8.

The court in Smithers also interpreted West Virginia Code of State Rules, W. Va. Code R. § 81–10–6.2 that provides “[d]ocuments, evidence and other items related to complaints, internal investigations, internal inquiries and/or contained in case files shall not be released, disseminated or disclosed, except by the direction of the Superintendent or by order of a court with competent jurisdiction.”  "Clearly," said the court, "the information sought to be disclosed in the present case was intended by the legislative rule to be confidential."

In syllabus point 9 of Smithers, the court observed that “[o]nce a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious’”  (citing Syl. Pt. 2, W. Va. Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996)). "The issue," said the court was "whether the rule and the FOIA can be reconciled; and if not, which governs the issue presented in this appeal." Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752 S.E.2d 603, 622 (2013).

The W. Va. Health Care Cost Review Court reconciled the seemingly inconsistent confidentiality provisions of the rule and the FOIA. It concluded that when the rule is invoked to block disclosure of information based on confidentiality, a court should perform an analysis under the FOIA and its case law, "giving due regard to the rule as one factor to be considered under syllabus point two of Cline. Smithers, 232 W. Va. at 468, 752 S.E.2d at 622. Importantly, however, the court rejected the police argument that the rule was dispositive of the issue. It emphasized that the FOIA "shall remain the proper analytical framework for issues of disclosure of public information." Id. The names of the complainants and any other identifying information was required to be redacted in accordance with the confidentiality requirements of W. Va. R. §§ 81–10–1 to –11 (2008).  Syl. Pt. 11, Smithers, 232 W. Va. at 456, 752 S.E.2d  at 609.

Ultimately, Smithers held that when (1) a FOIA request is made for information from the State Police regarding an officer who has received two or more either external or internal complaints of misconduct while on the job in his or her official capacity, or (2) where the officer has three or more "use of force incidents" during a three-month period and (3) is thus subject to review by the Internal Review Board in accordance with the provisions of the Early Identification System, (4) such information is subject to public disclosure only after a decision has been rendered by the Internal Review Board as to whether further action is required.  Syl. Pt. 12, Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

  1. Examination data

The third FOIA exemption applies to:

Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination.

W. Va. Code § 29B-1-4(3). The West Virginia Supreme Court of Appeals has never interpreted this exemption; it appears to be self-explanatory.

  1. Law enforcement records

A FOIA provision that has generated litigation, and is likely to continue to do so, is the law enforcement exemption (exemption 4). It provides:

Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.

W. Va. Code §  29B-1-4(4)(A). In the 2018 legislative session exemption 4 was amended to add the following to a new subsection 29B-1-4(4)(B):

Records identifying motor vehicles used, and the agencies using them, for undercover investigation activities conducted by state law-enforcement agencies or other agencies that are authorized by this code to use undercover or unmarked vehicles;

That amendment to exemption 4 seems superfluous as records that identify motor vehicles used for police undercover investigation activities was most certainly already covered by exemption 4. This amendment is an example of the legislative trend that has been accelerated in the last decade to conceal more and more information in government files from public scrutiny.

In 1993 The West Virginia Supreme Court of Appeals held that --- for the purpose of the state statute prohibiting the concealment or destruction of a public record --- a criminal history summary is a public record. State v. Nelson, 189 W. Va. 778, 787, 434 S.E.2d 697, 706 (1993). In a subsequent decision the court found police incident reports to be public records under FOIA because "the public has an interest in receiving information about criminal activity within the community." Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631, 634 (1994).

Ogden held that the incident report requested by the newspaper "was prepared following an inquiry into a specific violation of the law, i.e., a fight between two juveniles involving a gun" and therefore was a law enforcement record within the meaning of Exemption 4. The fact that the report was a law enforcement record did not, however, automatically exclude it from disclosure under FOIA "if society's interest in seeing the document outweighs the government's interest in keeping the document confidential." Id. at 635-36. The court held there was a right of public access to the extent the disclosure of the information would not compromise an on-going law enforcement investigation.

The report in Ogden, involved the names of juveniles. the court held that the newspaper was entitled only to a redacted copy that omitted any information that could reasonably lead to the discovery of the juveniles' identities. The redacted information included the exact time and location of the incidents, the names of witnesses, and the identity of the complainant. Id. at 638.

Ogden relied on Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985), the first West Virginia case interpreting the law enforcement exemption. At issue in Hechler was a list of names and addresses of security guards furnished to the Secretary of State pursuant to his authority to license and regulate the guards' employer. The court observed that "[t]he primary purpose of the law enforcement exemption . . . is to prevent premature disclosure of investigatory materials which might be used in a law enforcement action" and concluded the FOIA did not "create a blanket law enforcement exemption." Hechler v. Casey, 333 S.E.2d at 812.

Hechler recognized two important limitations on the scope of the law enforcement exemption. The exemption does not apply to information generated pursuant to routine administration or oversight or to ordinary manuals or procedures unless they included confidential details of law enforcement programs. Id. at 802, Syl. Pts. 11, 12. In addition, Hechler suggested the law enforcement exemption applied to records of "law-enforcement agencies" defined as only those agencies enforcing criminal laws. It did not apply to proceedings of regulatory agencies actions to invoke civil sanctions, such as hearings to suspend or revoke a license, nor did it apply to the list of security guard names and addresses sought in that case. Id. at 813.

In Charleston Gazette v. Smithers, the public body failed to present evidence to the trial court supporting its denial of the newspapers FOIA request based on the law enforcement exemption. The Supreme Court emphasized that, "to the extent that there [are] ongoing criminal investigations regarding state police officers which [fall] within this particular statutory exemption, it [is] incumbent upon the State Police to raise this exemption, with specificity, before the circuit court." 232 W. Va. 449, 473, 752 S.E.2d 603, 627 (2013).

Prior to Hechler, the West Virginia Supreme Court briefly examined the law enforcement exemption in Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50 (1984), in which the owner of a tavern destroyed by arson sought "information in the prosecutor's files, including a police report related to the fire, and confessions by Deputies." The tavern owner sought information that might establish whether a former sheriff had participated in the arson. Id. at 51.  The court declined to decide whether the exemption required an analysis to determine if a balancing test was necessary because the petitioner had bypassed the review procedures provided by the FOIA and therefore had failed to develop a factual record necessary for judicial review.

Also, of note is a 1986 Attorney General's opinion that suggests public records may temporarily lose their open status if they are turned over to a prosecuting attorney for use in a criminal investigation. Although these records become exempt from disclosure during the course of the investigation, "should all the prosecuting authorities involved decide not to prosecute . . . the information would then revert back to its original status . . . and would no longer be exempt under the Act." Report of the Attorney General (W. Va. April 18, 1986, 112, 113-15).

  1. Information exempted by other statutes

Exemption five of the West Virginia FOIA applies to "[i]nformation specifically exempted from disclosure by statute," W. Va. Code §  29B-1-4(5). It encompasses a variety of information kept confidential by statute, such as court records pertaining to divorce, W. Va. Code § 48-2-27, adoption, W. Va. Code § 48-4-10,  juvenile proceedings, W. Va. Code § 49-5-17; other juvenile records (W. Va. Code § 49-7-1); tax records (11-10-5d); and economic development assistance (W. Va. Code § 5B-2-1).

Although W. Va. Code § 29B-1-4(5) states that the information must be "specifically exempted from disclosure" by statute, and the state Supreme Court has held "the party claiming exemption . . . has the burden of showing the express applicability of such exemption to the material requested" records have been withheld based on statutory language that the records are "confidential" even where the other statute did not expressly refer to exemption 5 under the state FOIA. Syl. Pt. 2, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (Gazette I”).

For instance, the state Supreme Court has expansively interpreted the state Tax Code's confidentiality provisions, W. Va. Code § 11-10-5d, refusing to permit disclosure of tax-related information even though the Tax Code did not specifically prohibit such disclosure. The first such case, Daily Gazette v. Caryl, 181 W. Va. 42, 380 S.E.2d 209 (1989), involved a newspaper's request for information concerning the state Tax Department's compromise of its claim against the CSX Corporation shortly after the company's challenge to the validity of the tax had been rejected by a federal appeals court. Two justices issued a strong dissent, arguing that the relevant statutes did not require such settlement information to be confidential --- particularly where the challenged tax had been the subject of litigation. The majority, however, relied on its perception that, in general, the Legislature favored confidential treatment of tax information: "While we cannot state in all honesty that the statute is perfectly clear on the issue of confidentiality, we believe the intent was toward caution in disclosure." 380 S.E.2d at 213 n.11.

In a related case, State ex rel. Caryl v. MacQueen, 182 W. Va. 50, 385 S.E.2d 646 (1989), the court ruled the state Attorney General was prohibited from disclosing tax settlements information where he was required by law to review proposed tax settlements and to provide written recommendations concerning their advisability.

In Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the court inexplicably imposed restrictions on the use of information it found to be subject to disclosure under the Freedom of Information Act. The Burnsville case originated with the town's attempt to collect business and occupation taxes allegedly owed by two local businesses. In response to the town's lawsuit, the businesses contended that the town's business and occupation tax ("B & O tax") was being selectively enforced against them, while other businesses were not prosecuted for similarly failing to pay their taxes.

The trial court ordered the town to give the defendants access to all the B & O tax returns filed with the town, since these records were necessary to prove their claim. The Supreme Court, however, rejected what it termed a compromise, holding that the tax returns themselves were confidential, due to a specific statutory provision, but that "it would not violate the confidentiality requirements of [the tax statute] to permit a review of the roll of B & O taxpayers, since every person or company involved in a business or occupation is assumed to pay B & O taxes, and the list would contain only the names of the taxpayers, not the actual contents of the tax returns." Burnsville, 188 W. Va. at 512, 425 S.E.2d at 188.

The court's finding that disclosure of a list of taxpayers "would not violate the confidentiality requirements" of the statute should have resulted in the unconditional disclosure of the list pursuant to FOIA's mandate. Syl. Pt. 2, Burnsville, 188 W. Va. 510, 514, 425 S.E.2d 186, 190 (1992). However, without further discussion, the court ruled that "[a]s an extra measure of protection, the list should be treated as any confidential material and not leave [the circuit judge's] chambers." This result is probably best explained by the court's particular sensitivity to the privacy issues involved in disclosure of tax information, which is discussed below. Id.

In Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996), the plaintiffs sought to use a FOIA request to obtain documents pertaining to the application of state tax laws from 1978. The Tax Commissioner acknowledged that W. Va. Code § 11-10-5s(b)(1) "created a mandatory duty to release [administrative decisions or summaries thereof] after omitting any identifying characteristics or facts about the taxpayer." Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996). However, the Tax Commissioner denied the FOIA request and the plaintiffs sought an injunction and a declaratory judgment that the requested information should be released.

In the process of the litigation they deposed a number of Tax Department employees, including the agency General Counsel. The Tax Commissioner refused to be deposed and asked the state Supreme Court to bar his deposition. The state Supreme Court did not allow the deposition of the Tax Commissioner unless, after further proceedings, findings of fact, and conclusions of law, the circuit court determined the deposition was necessary. However, the discovery allowed by the circuit court and the redacted documents which were disclosed, made an inroad into the near blanket exception to the Freedom of Information Act the state Supreme Court has accorded tax information:

After the filing of this petition, the Tax Commissioner began releasing the administrative decisions, which had been redacted or modified to preserve taxpayer confidentiality. Since the submission of this petition, petitioner has notified this Court, through various motions for leave to supplement the record, that respondents have received redacted copies of the administrative decisions that were issued between July 1, 1986 and June 30, 1995. The Commissioner also represented that some of the decisions issued and served after June 30, 1995, have been issued and the remaining decisions would be issued on a going forward basis.

Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154, 157 (1996).

In a recent decision, the West Virginia Supreme Court of Appeals ruled that “the investigative exemption” in the West Virginia Antitrust Act specifies that the Attorney General “shall not” make public the name or identity of a person whose acts or conduct he investigates or “the facts” disclosed in the investigation. W. Va. Code  § 47-18-7(d). That investigative exemption was held “mandatory” and thus exempting such names, identities, and/or facts from disclosure as “information specifically exempted from disclosure by statute” under FOIA’s exemption 5. W. Va. Code, 29B-1-4(a)(5). St. Mary's Medical Center, Inc. v. Steel of West Virginia, Inc., 240 W. Va. 238, 809 S.E.2d 708 (2018).

  1. Historical materials

The sixth exemption, which has never been interpreted by the state Supreme Court, applies to:

Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage such record, archive, document or manuscript.

W. Va. Code § 29B-1-4(6).

Former West Virginia University law professor, Alfred Neely’s comment about the last part of exemption 5 has stood the test of time. He observed that barring access to materials that could be irreparably damaged by handling:

"offers some temptation for abuse. Whenever the public exercises its rights to inspect or copy a public record there may be some risk of damage . . . . the records, archives, documents and manuscripts exempted under § 29B-1-4(6) should be limited to only that small subclass of public records which have unique, intrinsic and irreplaceable value."

Alfred S. Neely, IV, Administrative Law in West Virginia, § 7.09, at 552, § 7.13 at 556-58 (Michie Co. ed., 1982).

  1. Financial institutions

This exemption provides protection for banks and other financial institution records, barring disclosure of:

Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers.

W. Va. Code § 29B-1-4 (7). This FOIA exemption, which has never been interpreted by the state Supreme Court, essentially duplicates several more specific confidentiality provisions of the state banking code. For example, W. Va. Code §  31A-1-2 extends confidentiality protection to:

"banks, building and loan associations, industrial banks, industrial loan companies, small loan companies, credit unions and all other similar institutions, whether persons, firms or corporations which are by law under the jurisdiction and supervision of the commissioner of banking" in the definition of "financial institutions."

It should be emphasized that exemption 7 is not a "blanket exemption" that bars disclosure of any and all information relating to financial institutions. The narrowness of this exemption is evident if one carefully parses the statutory language. So, understood, the exemption clearly pertains only to information "contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." (Emphasis supplied).

  1. Internal memoranda

The eighth FOIA exemption applies to "[i]nternal memoranda or letters received or prepared by any public body." W. Va. Code § 29B-1-4(8). It may be the exemption most frequently claimed by public agencies. Courts sometimes refer to the exemption as the "deliberative process exemption."

In Daily Gazette Co. v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996)(hereinafter “Daily Gazette I”), the seminal and still leading case on the exemption, the court held that § 29B–1–4(a)(8) "specifically exempts from disclosure only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body’s deliberative, decision-making process; written advice, opinions and recommendations from one public body to another; and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process." Id. at Syl. Pt. 4.

Deliberative material “reflects the give-and-take of the consultative process,” by revealing the manner in which the agency evaluates possible alternative policies or outcomes. Id.  Also, the requested information must be pre-decisional; that is, it must have been “prepared in order to assist an agency decisionmaker in arriving at his decision.” Highland Mining Company v. West Virginia University School of Medicine, 235 W. Va. 370, 774 S.E.2d 36, 49 (2015).

In Daily Gazette I, the newspaper sought information from the state agency about a proposed pulp and paper mill. The office released some and withheld other documents on exemption 8 grounds. Daily Gazette Co. v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996). Upon the Gazette's filing of a complaint, the circuit court appointed a special master to review the withheld documents in camera to determine whether they were exempt. See also, Charleston Gazette v. Smithers, 232 W. Va. at 472, 752 S.E.2d at 626 (2013) (trial court may appoint a master to review voluminous documents and make recommendations regarding disclosure). The trial court ordered the Development Office to prepare a Vaughn index containing a general description and the date of each withheld document including the names of the author and recipient, if any. Daily Gazette I, 198 W. Va. 563, 566, 482 S.E.2d 180, 183 (1996).

Upon review of the index and the affidavit submitted by the Development Office explaining the claimed exemptions, the special master recommended disclosure of some of the withheld documents in their entirety. Daily Gazette I, 198 W. Va. at 566, 482 S.E.2d at 183.  The trial court also ordered redaction of information deemed exempt pursuant to exemption 8 and the disclosure of the redacted documents.  The remaining documents fell under exemption 8 and were not disclosed to the plaintiff newspaper. Daily Gazette I, 198 W. Va. at 567, 482 S.E.2d at 184 (1996).

The newspaper appealed that portion of the circuit court's order exempting certain communications between the public body and officials of the pulp and paper mill. The court acknowledged the importance of encouraging the free exchange of ideas and information within government agencies during the processes of deliberation and policymaking. Daily Gazette I, 198 W. Va. at 572, 482 S.E.2d at 189 (1996). However, the court found two categories of information were not protected by exemption 8.  Materials that explain a decision after it was made --- or were factual in nature --- were held not to be exempt. Daily Gazette I. What was determinative, said the court, was whether the documents related to the agency's pre-decisional deliberative process. Daily Gazette I, 198 W. Va. at 573, 482 S.E.2d at 190.

In 1997, the West Virginia legislature added a paragraph to an otherwise innocuous economic development bill that essentially undercut the broad disclosure policy set forth in the opinion. W. Va. Code § 5B-2I-8 The amendment exempted all "documentary material, data or other writing" made or received by the West Virginia Development Office (or other public body) whose primary responsibility is economic development) for the purpose of "furnishing assistance to a new or existing business." The exemption language is very broad and could be claimed by other public bodies to conceal information simply by asserting that the requested information constitutes "assistance" to a business. On the other hand, such a claim may be inhibited by the liberal disclosure policy outlined by the court in Daily Gazette I regarding exemption 8, coupled with FOIA's presumption of disclosure and its mandate that exemptions be construed narrowly.

Eight years after Daily Gazette I was decided, the court in Farley v. Worley, 215 W. Va. 412, 599 S.E.2d 835 (2004), affirmed Daily Gazette I's requirement that a Vaughn index be produced if an agency is sued for withholding information under exemption 8. Worley also held that an index must also be provided if any of FOIA's other statutory exemptions are the claimed basis for withholding information. Id. The court specifically delineated the process a public body must use in complying with its duty to provide a Vaughn index in FOIA litigation. Subsequently, Charleston Gazette v. Smithers, provided even more specific guidance to public bodies drafting a Vaughn index for submission to trial courts:

The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va. Code 29B–1–4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. The Vaughn index need not be so detailed that it compromises the privilege claimed. the public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt.

Charleston Gazette v. Smithers, 232 W. Va. 449, 471, 752 S.E.2d 603, 625 (2013). The importance of specificity in drafting the index was emphasized in Smithers. There, a public body submitted a Vaughn index that "failed to provide any detail, let alone 'a relatively detailed justification as to why each document is exempt' from disclosure under the FOIA exemptions relied upon by the State Police." Id.  The court rejected the agency's claim of exemption. Id. The court has also held that a public body must redact, or otherwise segregate, exempt information from documents.  Nonexempt material must be disclosed.  Id., Syl. Pt. 2.

In contrast, the Highland Mining court held not exempt from disclosure "written communications between a public body and private persons or entities where such communications do not 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.” Highland Mining Company v. West Virginia University School of Medicine, 235 W. Va. 383, 774 S.E.2d 36, 49. Moreover, along with other evidentiary privileges such as the attorney-client and attorney work product privileges, the court indicated that the public is not entitled to disclosure of documents that a private party could not discover in litigation with the agency. Id. at Syl. Pt. 3.

A public body claiming the exemption must present evidence that the information requested would be subject to this exemption. The Supreme Court has held that the bald assertion that “some of the requested records may be exempt from disclosure” under West Virginia Code § 29B–1–4(a)(8) "is woefully inadequate." Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

In Highland Mining Company v. West Virginia University School of Medicine, a FOIA requester sought an extremely broad variety of documents and other information related to a university faculty member's research he used as a basis for articles he published in scholarly journals. 235 W. Va. 370, 774 S.E.2d 36, 47 (2015).  The requester, Highland Mining Company, argued that publication of the articles did not involve policy-making or a deliberative process within the meaning of W. Va. Code § 29B-1-4(8).

The court held that to invoke the § 29B–1–4(a)(8) exemption, a public body must show "in the context in which the materials are prepared or considered, the documents are both pre-decisional and deliberative to its decision-making process," Highland Mining, Syl. Pt. 5, 744 S.E. 2d at 49. The court summarized its previous holdings relating to successful invocation of the internal memoranda exemption. The public body, the court instructed, "must show that in the context in which the materials are prepared or considered, the documents are both pre-decisional and deliberative to its decision-making process." Moreover, it described pre-decisional documents as those "prepared in order to assist a public body decisionmaker in arriving at his or her decision." "Deliberative material" was described as that which "reflects the give-and-take of the consultative process, by revealing the manner in which the public body evaluates possible alternatives relevant to the decisional process." Highland Mining, at Syl. Pt. 5.

The court described the "precise question presented" as an issue of first impression: "whether a state university may invoke the “internal memoranda” exemption with respect to documents related to its professor’s scientific/academic research." Id. at 48.

The Supreme Court agreed with Highland that while WVU is a public body, it is not a public body engaged in policy making. The Court also agreed that the professor’s research and publication of his scholarship did not involve formulation of policy. However, the Court "emphatically" rejected the argument that the university "may not invoke the 'internal memoranda' exemption because that exemption covers only documents reflecting agency policy making communications." Id. at 50.

Emphasizing that the definition of “public body” under the FOIA is "extensive," the court noted that "public body entities and their employees . . . engage in an immensely diverse range of endeavors related to government service." The court observed that "their internal deliberations will necessarily address a variety of matters related to their state and/or local governmental responsibilities." Id. at 50-51. The Court found the "key question in every case" to be  "whether the disclosure of documents would expose a public body’s decision-making process so as to discourage candid discussion and thereby undermine the public body’s ability to perform its functions." Id. at 51.

The relevant public body decision for purposes of applying the “deliberative process” exemption to these public records was not whether WVU adopted a position or policy regarding mountaintop coal removal’s health effects on state residents. Rather, when a FOIA requester seeks records surrounding or leading up to an agency publication, the relevant agency decision for purposes of applying the “deliberative process” exemption is the development and ultimate publication of the article. Id. at 52-53. “The exemption protects ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer . . . ." Id. at 52.  Draft documents, said the court, "by their very nature, are typically pre-decisional and deliberative.” Id.

When a FOIA request seeks disclosure by a university of records surrounding or leading up to publication of scholarly material, "the relevant agency decision for purposes of applying the 'deliberative process' exemption is the development and ultimate publication of the article." To determine if a document generated in the course of a state university professor's research and preparation to publish a scholarly article is exempt, a court must determine whether it (1) was generated before the publication of the research article, and if so, (2) whether it reflects the scholar's "deliberative, decision-making or thought process employed to arrive at the article’s conclusions and ultimate publication." Id. at 51.

Among information that the deliberative process exemption protects are "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” The court commented that draft documents are typically pre-decisional and deliberative.” Id. at 51.

Any document that reveals a scholar’s analysis underlying a published article, is pre-decisional. All pre-publication documents relating to a published scientific research article are, by their very nature, pre-decisional. The Highland Mining court held that documents are deliberative if they  expose "the give-and-take of a professor's scientific research consultative process" that reveal how the researcher evaluated possible alternative outcomes. Id. at 52. Thus, exempted from disclosure were "drafts, data compilations and analyses, proposed edits, e-mails and other communications, and peer review comments and responses relate[d] to the planning, preparation and editing necessary to produce a final published article." Id. at 52-53.

The court emphasized that the exemption must be construed narrowly. "The key question" said the court "is whether the disclosure of documents would expose a public body’s decision-making process so as to discourage candid discussion and thereby undermine the public body’s ability to perform its functions." Id. at 51.

Ultimately, the Highland Mining court found that the "involuntary public disclosure of [a professor’s] research documents would expose the decision-making process in such a way as to hinder candid discussion of [university faculty] and undermine [the institution's] ability to perform its operations.” 235 W. Va. 370, 388, 774 S.E.2d 36, 54 (2015). The court held that the university had satisfied its burden of proving that certain documents generated during higher education academic research were exempt under the FOIA “internal memoranda” exemption. Id., But, as to other records, the court found the university had improperly claimed the “deliberative process” exemption for post-decisional and/or non-deliberative documents. Id. at 53.

  1. Terrorism prevention records

The ninth FOIA exemption provides:

Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health.

W. Va. Code § 29B-1-4(9). This exemption has not been interpreted by a court.

  1. Vulnerability assessments, plans, data, databases and inventories to respond to terrorist attacks and law enforcement communications codes and deployment plans.

The tenth FOIA exemption protects from disclosure:

Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases, and inventories of goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law enforcement or emergency response personnel.

  1. Va. Code § 29B-1-4 (10). No court has construed this exemption.
  2. Interagency intelligence information and investigation records relating to terrorist acts or threats.

The focus of the eleventh FOIA exemption is:

Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law-enforcement agencies, state and local law enforcement and other agencies within the department of military affairs and public safety.

W. Va. Code § 29B-1-4(11). There is no case law examining this exemption.

  1. Classified federal security records not subject to disclosure under federal law and national security briefings whose purpose is to state and local government with terrorism preparedness.

The twelfth FOIA exemption applies to:

National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism.

W. Va. Code § 29B-1-4(12). Exemption twelve has not been the subject of judicial interpretation.

  1. Computing, telecommunications and network security records, passwords, security codes or programs relating to anti-terrorism planning.

The thirteenth exemption relates to:

Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act.

W. Va. Code § 29B-1-4 (13). There are no judicial opinions examining this exemption.

  1. Security or disaster recovery plans, risk assessments, and tests.

Security or disaster recovery plans, risk assessments, tests, or the results of those tests fall within the fourteenth exemption. W. Va. Code § 29B-1-4(14). The court has not interpreted exemption fourteen.

  1. Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where communications infrastructure is used in anti-terrorism plans and responses.

Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located are exempt from disclosure by the fifteenth FOIA exemption. W. Va. Code § 29B-1-4 (15).

  1. Facility security system codes.

The sixteenth exemption applies to:

Codes for facility security systems; or codes for secure applications for such facilities referred to in subdivision (15), subsection (a) of this section.

W. Va. Code § 29B-1-4(16). The Court has not had occasion to interpret this exemption.

It should be noted that FOIA exemptions 9 through 16 (sub-sections (i) through (p), above, "should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity."

  1. Engineering plans and descriptions of existing public utility plants and equipment

The seventeenth exemption protects from disclosure:

Specific engineering plans and descriptions of existing public utility plants and equipment.

W. Va. Code § 29B-1-4(17). No court has examined this exemption.

  1. Customer proprietary network information of other telecommunications carriers, equipment manufacturers and individual customers

The eighteenth exemption covers:

Customer proprietary network information of other telecommunications carriers, equipment manufacturers and individual customers, consistent with 47 U. S. C. § 222.

W. Va. Code § 29B-1-4(18). Exemption eighteen has not been subject to judicial interpretation.

  1. Records of the Division of Corrections and the Regional Jail Authority relating to design of corrections and jail facilities

The focus of the nineteenth exemption relates to:

the policy directives and operational procedures of personnel relating to the safe and secure management of inmates, that if released, could be utilized by an inmate to escape a corrections or jails facility, or to cause injury to another inmate or to facility personnel.

Exemption 19 has been interpreted in one case to prohibit the disclosure of a video recording of a jail extraction of an inmate by jail staff. West Virginia Regional Jail and Correctional Facility Authority v. Marcum, 239 W. Va. 109, 799 S.E.2d 540 (2017). The court held that the video was properly withheld from disclosure “because it display[ed] part of the design of a correctional facility and the operational procedures of personnel relating to the management of inmates, such that, if disclosed, could be used by an inmate to escape from a facility or to cause injury to another inmate, resident or to facility personnel.” W. Va. Code § 29B–1–4(a)(19) (2016) (Supp. 2016). The court emphasized, however, that “even though the videotape is exempt from disclosure under FOIA, this does not preclude its disclosure under the discovery rules in a civil lawsuit.” Syl. Pt. 2, Maclay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000).

A “vehement” dissent in Marcum persuasively argued trial courts should be free to balance the interests of disclosure with possible injury to the interests of jail safety in determining whether exemption 19 should apply:

Each videotape of a jail cell extraction of an inmate should be analyzed to determine whether the circumstances in a given situation support a legal conclusion that it falls within a FOIA exemption. The majority should not have adopted a blanket rule with respect to the applicability of this exemption to all such videotapes. Rather, the majority should have preserved the right of the lower courts to make these specific determinations on a case-by-case basis because other jail cell extraction videos may not contain such information.

Marcum, 799 S.E.2d at 549.  The dissenting Justice emphasized that the exemptions from the mandatory disclosure requirements of the FOIA are required to be “both narrowly drafted and narrowly construed”. “This” observed the dissent, “counterbalances the self-protective instincts of bureaucracy which, as in any organization, would prefer to operate under the relatively forgiving eye of only its own members rather than the more revealing “sunlight” of public scrutiny.” Id.

In future cases, the holding in Marcum might reasonably be distinguished because the FOIA requester could obtain the video recording through civil discovery in the case he was litigating against the public body. A reporter, for example, might assert that he/she has no option to obtain the video record through civil discovery, and therefore, the public’s right to know demands that the court apply a balancing test as well as consider limited disclosure under a protective order.

  1. Information that would identify an applicant for or holder of a concealed weapon permit

The Legislature added a new exemption in 2016 relating to records of gun ownership.

W. Va. Code § 29B-1-4(a)(20) exempts Information related to applications for firearm permits, including applications themselves, supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit.

The twentieth exemption provides:

"Information related to applications . . . supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit."

W. Va. Code § 29B-1-4(a)(20). A proviso to the twentieth exemption indicates that "information in the aggregate that does not identify any permit holder other than by county or municipality is not exempted.” Moreover, information falling within this exemption must be disclosed to law enforcement officers or agencies seeking to determine the validity of a permit, to assist in a criminal investigation or prosecution, or for other lawful law-enforcement purposes.

 

  1. Personal information of law-enforcement officers maintained by the public body.

The twenty-first exemption shields from disclosure:

“Personal information of law-enforcement officers maintained by the public body in the ordinary course of the employer-employee relationship.”

W. Va. Code § 29B-1-4(a)(21). “Personal information” is defined as “a law-enforcement officer's social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the law-enforcement officer's spouse, parents and children.”

None of the eight exemptions added to the FOIA in 2003 in response to the September 11, 2001, terrorist attack on the United States have been the subject of judicial interpretation. One should be aware that the purpose of these exemptions (W. Va. Code § 29B-1-4 (9-16) ) is to protect the public from realistic terrorist threats and interpretations. Subsection (b) of W. Va. Code § 29B-1-4 provides that “[a]s used in subdivisions (9) through (16) the term “terrorist act” means “an act that is likely to result in serious bodily injury or damage to property or the environment” and is intended to:

(1) Intimidate or coerce the civilian population;

(2) Influence the policy of a branch or level of government by intimidation or coercion;

(3) Affect the conduct of a branch or level of government by intimidation or coercion; or

(4) Retaliate against a branch or level of government for a policy or conduct of the    government.

Subsection (c), of W. Va. Code § 29B-1-4 further provides that:

[n]othing in the provisions of subdivisions (9) through (16) . . . should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity.

The possibility exists that some state agencies may utilize one or more of these newly added exemptions in an effort to improperly conceal information that should be disclosed.

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B. Other statutory exclusions

As stated, statutory provisions preserve the confidentiality of certain court records such as divorce (W. Va. Code § 48-2-27), adoption (W. Va. Code § 48-4-10), and certain juvenile proceedings (W. Va. Code § 49-5-17); tax information (W. Va. Code § 11-10-5d); etc. However, for any other state statute to nullify the public's right of access to public records, the statute must "specifically" exempt the particular information from disclosure, W. Va. Code § 29B-1-4(5), and "the party claiming exemption . . . has the burden of showing the express applicability of such exemption to the material requested." Syl. Pt. 2, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996). See e.g., Syl. Pt. 7, Garden State Newspapers v. Hoke, 520 S.E.2d 186 (W. Va. 1999) (recognizing "a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings").

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The Supreme Court of Appeals has stated repeatedly that the specific exemptions contained in section four of the FOIA are the only exemptions from disclosure under the Act. However, while the court has never specifically decided any claim for confidentiality based upon any privilege against disclosure that existed at common law, the court has held that several common law litigation privileges are incorporated in the deliberative process exemption.

In Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), the Supreme Court explicitly discussed claims for confidentiality based upon privileges against disclosure which existed at common law. As noted above, the case involved application of the deliberative process privilege of FOIA exemption 8, W. Va. Code § 29B-1-4 (a)(8), ("Internal memoranda or letters received or prepared by any public body”). The West Virginia Court suggested that exemption 8, like its federal counterpart exemption 5, preserves to government agencies "such recognized evidentiary privileges as the attorney-client privilege, the attorney-work-product privilege, and the executive 'deliberative process' privilege."

Exemption 5 of the federal FOIA exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. '552(b)(5) (1994). In enacting Exemption 5, it was Congress' intention that the public "not be entitled to government documents which a private party could not discover in litigation with the agency." Schell v. U.S. Dept. of Health & Human Services, 843 F.2d 933, 939 (6th Cir.1988) (citations omitted).

The federal FOIA's open government policies notwithstanding, Exemption 5 preserves to government agencies "such recognized evidentiary privileges as the attorney-client privilege, the attorney work- product privilege, and the executive 'deliberative process' privilege." Schell, 843 F.2d at 939 (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th cir.1980)). See Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 257 (D.C.Cir.1982) (footnotes omitted); Daily Gazette, 198 W. Va. at 571, 482 S.E.2d at 188.

In Daily Gazette I, the court recognized the close relationship between the federal and West Virginia FOIA. It noted “the value of federal precedents in construing our state FOIA’s parallel provisions” and that “[f]ederal precedent and legislative history of federal Exemption 5 are pertinent to our interpretation of Exemption 8 of WVFOIA.” 198 W. Va. 563, 571, 482 S.E.2d 180, 188 (1996).

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

As noted in the last section, the only exemptions available under the Freedom of Information Act are the twenty-one categories of information specifically identified in the statute. This section addresses the availability under FOIA and other West Virginia statutes of certain specific types of records for which requests are frequently made. W. Va. Code §  29B-1-4(5) (FOIA exemption five recognizes that other statutes may exempt certain categories of information that would otherwise be available for public review.)

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A. Autopsy and coroners reports

It could be argued that autopsy reports and records of the state medical examiner could fall within the "personal information" exemption of the FOIA, and thus be subject to the Cline balancing test. See 51 W. Va. Op. Atty. Gen. 606 (W. Va. A.G.), 1965 WL 92501 (Attorney General Opinion suggests appropriateness of balancing test). Based upon other decisions, it is possible that the Supreme Court of Appeals might recognize some degree of privacy protection even for records of deceased persons. See Jeffery v. McHugh, 166 W. Va. 379, 273 S.E.2d 837 (1980) (upholding the confidentiality of juvenile court records, specifically exempt from disclosure under W. Va. Code § 49-7-1, even though the juvenile involved had died). However, the fact that autopsy reports would not directly affect the privacy rights of any living person undoubtedly would be important in the Cline balancing process. Child Protection Group v Cline, 350 S.E.2d at 545 (1986). Autopsy and other records of the medical examiner should be disclosed to the family representative of a deceased person as a matter of right under FOIA.

Note that there is a specific statute mandating disclosure of autopsy reports made by the state medical examiner to persons to whom the cause of death is "a material issue." West Virginia Code § 61-12-10 requires that "[a] full record and report of the findings developed by the autopsy shall be filed with the office of medical examinations," and requires that office to keep "full, complete, and properly indexed records of all deaths investigated, containing all relevant information concerning the death, and the autopsy report if such be made. . . . Copies of such records or information shall be furnished, upon request, to any party [in court proceedings] to whom the cause of death is a material issue." Moreover, “any prosecuting attorney or law-enforcement officer may secure copies of these records or information necessary for the performance of his or her official duties.”

While West Virginia Code § 61-12-10 suggests limited availability of autopsy records it does not explicitly exempt such records from public scrutiny. It is likely that courts would view autopsy and related records as subject to FOIA disclosure but would analyze each FOIA request to determine the extent to which disclosure might be limited by West Virginia Code § 29B-1-4(2) (“Information 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 . . .”). As noted above, where such information is of such a personal nature, disclosure depends on a balancing test that weighs privacy and public interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).

Medical examiners’ reports would most likely be treated the same as autopsy reports, i.e., they may fall within the "personal information" exemption of the FOIA and thus be subject to the Cline balancing test, with some degree of privacy protection for the records of deceased persons. See Jeffery v. McHugh, 166 W. Va. 379, 273 S.E.2d 837 (1980) (upholding the confidentiality of juvenile court records, which were specifically exempt from disclosure under West Virginia Code § 49-7-1, even though the juvenile involved had died).

The Fatality and Mortality Review Team oversees and coordinates the examination, review and assessment of deaths resulting from drug overdoses or possible domestic violence, as well as the deaths of minor children and infants and mothers “who die during pregnancy, at the time of birth or within one year of the birth of a child.” W. Va. Code § 61-12A-1. “Proceedings, records and opinions of the Fatality and Mortality Review Team and the advisory panels established by the team are exempt from disclosure under the Freedom of Information Act[.]” Id.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

The Miner’s Health, Safety and Training Act requires employers to implement drug screening programs. W. Va. Code § 22A-1A-1. The records of those substance abuse and alcohol screening tests received by the Office of Miners' Health, Safety and Training “are confidential communications and are exempt from disclosure” under the West Virginia Freedom of Information Act, with the following exceptions:

(a) Where release of the information is authorized solely pursuant to a written consent form signed voluntarily by the person tested. The consent form shall contain the following:

(1) The name of the person who is authorized to obtain the information;

(2) The purpose of the disclosure;

(3) The precise information to be disclosed;

(4) The duration of the consent; and

(5) The signature of the person authorizing the release of the information; (b) Where the release of the information is compelled by the Board of Appeals or a court of competent jurisdiction; (c) Where the release of the information is relevant to a legal claim asserted by the person tested; (d) Where the information is used by the entity conducting the substance abuse or alcohol screening test in defense of a civil or administrative action related to the testing or results, or to consult with its legal counsel; or (e) Where release of the information is deemed appropriate by the Board of Appeals or a court of competent jurisdiction in a disciplinary proceeding.

W. Va. Code § 22A-1A-3.

Under the Miner’s Health, Safety and Training Act, any individual meeting with the director to report violations or to be interviewed about an accident may request that the director keep that person’s identity and statement confidential. W. Va. Code § 22A-1-40. Once such a request has been made, the person’s identity and statement are exempt from disclosure under the West Virginia Freedom of Information Act. Id.

Other than cases construing FOIA exemptions, there have been no specific court decisions or statutory references to application of FOIA to active administrative law enforcement investigations. Worker safety and health inspections, or accident investigations arguably may be viewed as falling within the FOIA exemption for records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies that are maintained for internal use in matters relating to law enforcement W. Va. Code § 29B-1-4(a)(4).

The primary purpose of the law enforcement exemption, W. Va. Code 29B-1-4(4), is to prevent premature disclosure of investigatory materials that might be used in law enforcement action. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).

The fact that the document falls within the FOIA law enforcement records exemption does not automatically exclude it from disclosure under FOIA; once a document is determined to be law enforcement record, it may still be disclosed if society's interest in disclosure of the document outweighs government's interest in keeping the document confidential.  Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 453 S.E.2d 631 (1994).

Other than cases construing FOIA exemptions, there have been no specific court decisions or statutory references to application of FOIA to closed administrative law enforcement investigations.

It is unlikely that closed administrative enforcement records such as worker safety and health inspections, or accident investigations reports would fall under FOIA’s law enforcement exemption. An exception might be recognized for information of a personal nature contained in such closed files. Disclosure of personal information could be seen as constituting an unwarranted invasion of privacy under § 29B-1-4(2). To determine whether information of a personal nature in closed administrative files may be disclosed to the public, application of the five-factor analysis of Cline v. Child Protection Group would be required. Child Protection Group v Cline, 177 W. Va. at 33-34, 350 S.E.2d at 545 (1986).

In Manns v. City of Charleston Police Dep’t, 209 W. Va. 620, 550 S.E.2d 598 (W. Va. 2001), the West Virginia Supreme Court observed that records of administrative investigations of police misconduct had been found by other courts to be “similar” to “personal files” as set forth in W. Va. Code § 29B-1-4(2) (“Information 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 . . .”).  Agreeing with this approach, the West Virginia Court held that disclosure of records of complaints about, and investigations into, police officer misconduct depends upon the application of a five-factor balancing test that must weigh privacy and public interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).

In denying disclosure, the Manns court emphasized that "the request in this case would require the disclosure of all claims of misconduct no matter how egregious, unfounded, or potentially embarrassing." Manns, 209 W. Va. at 626, 550 S.E.2d at 604.  Moreover, the court observed, "the information was obviously given with an expectation of confidentiality as the appellants’ policy and procedural manuals require all investigative reports to be 'treated with the strictest of confidence.' " Id.  Importantly, the court noted that "the expectation of confidentiality is crucial to continued reports of possible misconduct." Id.

In contrast, in Charleston Gazette v. Smithers, information relating to the conduct of a state police officer while on the job "including but not limited to, patrolling, conducting arrests and searches, and investigating crimes" was held not to fall within the FOIA invasion of privacy exemption in  (2012). Syl. Pt. 8, 232 W. Va. 449, 752 S.E.2d 603 (2013).

The Gazette had filed a FOIA suit against the Superintendent of the West Virginia State Police seeking disclosure of public records concerning the agency's internal review of complaints made against State Police officers. In the suit the newspaper sought "(1) Quarterly, Bi–Annual and Yearly Reports of the Internal Review Board for the last five years, with the names of the employees identified by the Early Identification System redacted; (2) data provided to the Internal Review Board that was used to assist it in determining if subordinates of certain supervisors tend to be employees frequently identified by the internal review system; and (3) a copy of the central log of complaints maintained by the West Virginia State Police Professional Standards section." Id. at 232 W. Va. 449, 456, 752 S.E.2d 603, 610  (2013).

The Smithers Court, distinguished Manns, finding that it's holding was made "in summary fashion" and "[g]iven the lack of any meaningful analysis in Manns, as well as the lack of any new law enunciated therein, the decision has limited application to the case at bar."  232 W. Va. at 468, 752 S.E.2d at 622.

The Court held that the public might access the information sought by the Gazette in limited circumstances. When a request is made under the FOIA for information from the State Police regarding an internal investigation based on an external or internal complaint of misconduct by an officer (in connection with his/her duties), the court refused to permit disclosure until completion of the investigation and after a determination is made as to whether disciplinary action is authorized by the Superintendent. See, W. Va. Code R. § 81–10–8.13 (2008). The clear intent of the legislative rule was that "the information sought to be disclosed was intended . . . to be confidential." Id.

The Court then was led to "directly confront is whether the rule and the FOIA can be reconciled; and if not, which governs the issue presented in this appeal." The court concluded that when "considering a request for disclosure of information under the FOIA and the assertion of the statutory invasion of privacy exemption" the policy disfavoring the release of information enunciated in W. Va. Code R. § 81–10–6.2 is one of the factors set forth in Cline." Child Protection Group v Cline, 350 S.E.2d at 545 (1986). Importantly, the Court found that the legislative rule was not dispositive of the issue and "the FOIA shall remain the proper analytical framework for issues of disclosure of public information."  Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752 S.E.2d 603, 622 (2013).

Ultimately, the Court concluded, "the premature disclosure of information about any investigation into allegations of misconduct by state police officers before any internal investigation or inquiry takes place, could cause an unwarranted invasion of privacy." "Conversely," the Court concluded, "after an investigation has taken place and determination made by either the Superintendent or the Internal Review Board as set forth in the legislative rule, there is a compelling reason to disclose records developed and maintained by the State Police, a public agency, regarding the investigation." Charleston Gazette v. Smithers, 232 W. Va.  470, 752 S.E.2d at 624.

Thus, after the investigation and the Superintendent's determination "there is a public right to access the complaint, all documents in the case file, and the disposition." But, the Court required that the "names of complainants and any other identifying information must be redacted" as required by the agency's confidentiality rules. See, W. Va. Code R. §§ 81–10–1 to –11 (2008). Id.

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C. Bank records

Most bank records — and particularly "[i]nformation contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any" banking regulatory agency — are exempt from disclosure under Exemption 7 of the FOIA, as well as the specific statutes discussed above.

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D. Budgets

Generally, final versions of budgets of West Virginia governmental entities should be disclosed upon receipt of a FOIA request. It is possible that government bodies may claim that proposed budgets fall within exemption 8 of the FOIA, § 29B-1-4(a)(8). That exemption relates to internal pre-decisional information. See Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996).

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E. Business records, financial data, trade secrets

Trade secrets are the first FOIA exemption, but there is no provision under the FOIA providing for confidentiality of business records or financial data. In Queen v. WVU Hospitals, the Supreme Court refused to create a general exemption for "business confidentiality." 179 W. Va. 95, 365 S.E.2d 375 (1987). In Keegan v. Bailey, 191 W. Va. 145, 443 S.E.2d 826 (1994), the Supreme Court ruled that the state's uncashed checks were subject to disclosure under the Freedom of Information Act, even though the records of abandoned property are specifically exempt under W. Va. Code § 36-8-12a (1983). (Under W. Va. Code § 36-8-8b(a), property is not abandoned until it has remained unclaimed for seven years, and the records requested related to checks issued within the past six years.)

There are, however, a number of state statutes that specifically exempt certain types of business records, financial data, and trade secrets from disclosure.  Exemption five of FOIA, §  29B-1-4(5), ("Information specifically exempted from disclosure by statute") recognizes that some categories of information may be specifically exempt from disclosure, although not explicitly listed among the twenty-one exemptions set forth in W. Va. Code §  29B-1-4.

Underwriting standards of automobile liability and physical damage insurers that are filed with the West Virginia Insurance commissioner are considered confidential by law and are exempt from disclosure pursuant to FOIA, W. Va. Code § 33-6A-4.

West Virginia Department of Health and Human Services records relating to its Medicaid program preferred drug list and drug utilization review are exempt from disclosure pursuant to W. Va. Code § 9-5-15.  Such records include “trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates which are contained in the department's records and those of its agents with respect to supplemental rebate negotiations and which are prepared pursuant to a supplemental rebate agreement.”

West Virginia Code § 12-7-11 exempts documentary material and data made or received by the jobs investment trust board for the purpose of furnishing assistance to businesses and persons,  including trade secrets, commercial, financial or personal information regarding the financial position or activities of such businesses and persons.

Proprietary business information provided to the Broadband Enhancement Council, or its consultants and other agents is exempt from disclosure under West Virginia Code section 31G-1-13. Such information includes, but not limited to, physical plant locations, subscriber levels, and market penetration data, and any other information that constitutes trade secrets. That information is exempt if identified as confidential information when submitted to the council.

Information obtained by the Division of Motor Vehicles or its agent, law enforcement and the judiciary relating to an electronic insurance system verification program used to electronically verify evidence of insurance coverage with insurance companies is exempt from disclosure under

  1. Va. Code § 17D-2A-6a (g).

The division of transportation, and any other agency that is part of the department of highways, may exempt from disclosure any sensitive business, commercial or financial information submitted to the division for final review and approval of a transportation facility if that information is not customarily provided to business competitors. Included within this discretionary exemption are documents, communications including, but not limited to, a highway project’s design, management, financing and other details. W. Va. Code §§ 17-27-4(4) and 17-27-4(5).

The insurance underwriting standards filed by licensed insurers with the West Virginia Insurance Commissioner are considered confidential, privileged and are exempt from disclosure under FOIA. W. Va. Code § 33-17A-4a (f).

The state tax commissioner is required to deliver to the commissioner of the bureau of employment programs certain information including the names, addresses and other identifying information of all business receiving a business franchise registration certificate. Such information acquired by the bureau of employment programs commissioner is exempt from disclosure pursuant to section 21A-2-6b (e).

Any documentary material or data made or received by the West Virginia Housing Development Fund for the purpose of furnishing assistance, that constitutes trade secrets, commercial, financial or personal information regarding the financial position or business operation of a business or person is exempt from disclosure. W. Va. Code § 31-18-27. However, the Fund is required to disclose the following information regarding executed loans: (1) The name of the debtor; (2) location(s) of the project; (3) amount of the loan or financial assistance provided by the fund; (4) the purpose of the loan or financial assistance; (5) the term, rate, and interest of the loan; and (6) the fixed assets which serve as security for the loan. Id.

  1. Va. Code § 5B-2C-7 exempts from FOIA disclosure requirements:

Any documentary material, data or other writing made or received by the West Virginia academy of science and technology for the purpose of developing state summaries or policy options concerning the capabilities, performance or plans of individual businesses or organizations is deemed to be confidential trade secrets which are exempt from disclosure.

The West Virginia Insurance Commissioner is empowered by statute to access books and records maintained by an administrator for the purposes of examination, audit and inspection. An “administrator” is a person who directly or indirectly underwrites or collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with life, annuity or accident and sickness coverage offered or provided by an insurer. W. Va. Code § 33-46-2(a).

West Virginia Code section 33-46-5(b) exempts from disclosure:

any documents, materials or other information in the possession or control of the commissioner that is furnished by an administrator, insurer, insurance producer or an employee or agent thereof acting on behalf of the administrator, insurer or insurance producer, or obtained by the commissioner in an investigation[.]

However, the commissioner may release “final, adjudicated actions, including for cause terminations, that are open to public inspection pursuant to [FOIA] to a database or other clearinghouse service maintained by the national association of insurance commissioners, its affiliates or subsidiaries. . . . ” W. Va. Code § 33-46-5(f).

By statute, West Virginia has created a college prepaid tuition and savings program that is administered by a “board of trustees of the college prepaid tuition and savings program.” Any information in the possession of the board of trustees or its agents that would tend to disclose the identity of a beneficiary, account owner or donor is exempt from disclosure under the FOIA. However, the board may disclose or publish information “in a statistical or other form which does not identify the individuals involved or provide personal information.” Account owners may access their own personal information. W. Va. Code § 18-30-12.

The West Virginia Children with Autism Trust Board is empowered to supervise the creation of trusts for children afflicted by autism. Any information in the possession of the Autism Trust Board that would tend to disclose the identity of a beneficiary, account owner or donor is exempt from disclosure under FOIA. W. Va. Code § 44-16-5. The Board may disclose or publish information in a statistical or other form that does not identify the individuals involved or provide personal information. Trust account owners may access their personal information. Id.

The West Virginia Tax Commissioner may subject an insurer to administrative supervision if, in the commissioner's discretion, it appears that:

(1) The insurer's condition renders the continuance of its business hazardous to the public, to its insureds or to its creditors; (2) The insurer has or appears to have exceeded its powers granted under its certificate of authority and applicable law; (3) The insurer has failed to comply with the applicable provisions of this chapter or chapter twenty-three of this code; (4) The business of the insurer is being conducted fraudulently; or (5) The insurer gives its consent.

W. Va. Code § 33-34-3(a).

Information relating to the commissioner’s supervision of an insurer including “proceedings, hearings, notices, correspondence, reports, records is not subject to disclosure under FOIA. However, the commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as part of the commissioner's official duties. Id.

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F. Contracts, proposals and bids

Public contracts are subject to disclosure under the Freedom of Information Act and, in 4-H Road Cmty. Ass’n v. WVU Foundation, 182 W. Va. 434, 388 S.E.2d 308 (1989), the Supreme Court observed that leases between West Virginia University and other parties were public documents subject to disclosure by the University under the FOIA.

The statute providing for a competitive bidding procedure prescribed by statute for most state contracts provides that, the "books, accounts and records" of the Purchasing Division of the West Virginia Department of Administration are public records, and the director of the division is required to make such records available for inspection by any state taxpayer at all proper times. W. Va. Code § 5A-3-2. Also, West Virginia Code section 5A-3-11(h) provides that, following the award of an open market order or contract, the director, or his/her designee is required to identify successful bids. A copy of each such bid must be maintained as a public record and be "open to public inspection in the office of the director and may not be destroyed without the written consent of the Legislative Auditor." W. Va. Code § 5A-3-11(h).

There is no express exemption in the FOIA for bids or proposals on public contracts prior to the award of the contract. However, the provisions of the latter statute, West Virginia Code section 5A-3-11(h), probably would be sufficient to keep such documents exempt from disclosure until the contract is awarded.

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G. Collective bargaining records

There is no exemption for collective bargaining records.  The state of West Virginia does not have a collective bargaining statute for public employees; the legality is decided on local level.

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H. Economic development records

West Virginia Code section 5B-2-1 exempts from the West Virginia FOIA “any documentary material, data or other writing made or received by any public body whose primary responsibility is economic development for the purpose of furnishing assistance to a new or existing business.” W. Va. Code § 5B-2-1. This exemption specifically applies to the West Virginia Economic Development Office and other similar public bodies with such responsibilities.

The exemption includes a proviso requiring release of “any agreement entered into or signed by the development office or public body which obligates public funds shall be subject to inspection and copying pursuant to the provisions of said article as of the date the agreement is entered into, signed or otherwise made public.” W. Va. Code § 5B-2-1. This exemption for economic development records was enacted to limit the liberal construction afforded FOIA by the state Supreme Court in Daily Gazette Co., Inc. v. West Virginia Dev. Office, 198 W. Va. 563, 575, 482 S.E.2d 180, 192 (1996) (“Gazette I”).

Records of any center established by a doctorial institution for economic development and technology advancement is exempt from the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 18B-12A-4.

West Virginia Code section 5B-2I-8 exempts from FOIA disclosure “Any documentary material, data or other writing made or received by the West Virginia Tourism Office, the West Virginia Development Office or the Tourism Commission, for the purpose of furnishing assistance to a new or existing business is exempt.” W. Va. Code § 5B-2I-8. However, “any agreement entered into or signed by the West Virginia Tourism Office or the West Virginia Development Office which obligates public funds is subject to inspection and copying . . . as of the date the agreement is entered into, signed or otherwise made public.” Id.

Under West Virginia Code section 5B-1-6(a),  “Information that would be confidential under the laws of this state when provided to a division, agency, board, commission or office within the [Department of Commerce] is confidential when that information is provided to the secretary of commerce or an employee the secretary’s office. Such information may be disclosed only: (1) To the applicable agency, board, commission or division of the department to which the information relates; or (2) in the manner authorized by provisions of West Virginia law applicable to that agency, board, commission or division.” W. Va. Code § 5B-1-6(a).

Moreover, confidential information “in the possession of any division, agency, board, commission or office of the department of commerce may be disclosed to the secretary or an employee in the office of the secretary.”  W. Va. Code § 5B-1-6(b).

“The secretary or employee shall safeguard the information and may not further disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of the agency, board, commission, division or office of the department in whose hands the information is confidential. This subsection does not require disclosure of individually identifiable health care or other information that is prohibited from disclosure by federal law.” Id.

The provisions of the Department of Commerce’s confidentiality rule

(1) Apply only to information that is actually disclosed by a division, agency, board, commission or office within a department to the secretary, or an employee in the office of the secretary, of that department;

(2) Do not authorize disclosure or exempt from the provisions of article one, chapter twenty-nine-b of this code any confidential information of a division, agency, board, commission or office within a department to any person or entity other than the secretary, or an employee in the office of the secretary, of that department;

(3) Apply only to disclosure between a division, agency, board, commission or office within a department and the secretary, or an employee in the office of the secretary, of that department.

W. Va. Code § 5B-1-6(c).

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I. Election Records

Election records are subject to disclosure under the Freedom of Information Act. Additionally, several statutes specifically mandate particular records to be maintained as public records open to inspection. See W. Va. Code § 3-1-7 (d)(clerk of county commission must keep a bound book recording all proceedings creating or changing precincts or establishing or changing voting places or precincts); W. Va. Code § 3-6-9 (county commission must keep a complete record of all vote canvassing proceedings).

However, after election results are declared by a board of canvassers, the ballots, registration records, pollbooks, tally sheets and precinct certificates must be deposited with the clerk of the county commission who must preserve them for twenty-two months and if there is no contest pending as to any election and their further preservation is not required by court order, the ballots, pollbooks, tally sheets and certificates required by statute to be destroyed without opening the sealed packages of ballots. If there is a contest, these records  must be destroyed when the contest ends. W. Va. Code § 3-6-9(i).

There is one very narrow caveat to the general rule that election information must be disclosed to FOIA requesters. In State ex rel. Daily Gazette Co. v. Bailey, 152 W. Va. 521, 164 S.E.2d 414 (1968), the West Virginia Supreme Court addressed whether certificates of nomination to place a candidate for President and Vice-President of the United States on the ballot were not public records required to be disclosed under pre-FOIA state open records statutes. Bailey concluded that “[c]ertificates of nomination signed and filed pursuant to [state law] do not constitute public records.” Bailey, Syl. Pt. 1. This conclusion was based on the Court’s determination that certificates of nomination were the functional equivalent of the candidate nominating processes used by the major political parties and thus entitled to the same protection from public disclosure as the “secret ballot.”

A major deciding factor in Bailey was the Legislature's mandate that “n[]o person signing such [nomination] certificate shall vote at any primary election to be held to nominate candidates for office to be voted for at the election to be held next after date of signing such certificate[.]” See, Shepherdstown Observer, Inc. v. Maghan, 226 W. Va. 353, 700 S.E.2d 805 (W. Va. 2010) (distinguishing Bailey). “In all aspects, a person signing a nominating certificate was casting a primary ballot for his or her candidate and had thus voted. It was for this reason that we held in syllabus Point 2 of Bailey that: “[a] qualified voter who signs a certificate ... effectively casts his vote for the nomination of the candidate named therein and his vote, except where necessarily revealed, is entitled to the same secrecy as one cast in a primary election.” Shepherdstown Observer, Inc. v. Maghan, 226 W. Va. at 360-61, 700 S.E.2d at 812-13.

In Shepherdstown Observer, a county clerk asserted that a petition seeking a referendum election on a zoning ordinance was exempt from disclosure under the pre-FOIA decision in State ex rel. Daily Gazette Co. v. Bailey.

The Shepherdstown Observer Court rejected the trial court’s conclusion that no valid purpose existed for making the signatures appearing on a referendum petition public and that a referendum petition should be treated, under Bailey, as a ballot cast and therefore “entitled to the same secrecy as one cast in [an] election,” 226 W. Va. at 361, 700 S.E.2d at 813.

The Court held the circuit court had erred in holding that signatures on a referendum petition were the functional equivalent of a secret ballot, that disclosing the names of signatories on a referendum petition could have an unconstitutional chilling effect on the ability of citizens to petition the government in violation of the First Amendment to the United States Constitution and Article III, §§ 7 and 16 of the Constitution of West Virginia. Id. Finding that disclosure of a referendum petition under the FOIA “serves a vital function in protecting the integrity of the electoral process and in promoting transparency and accountability in the “conduct of the public's business” the Court saw “nothing in our state law or state Constitution that would bar disclosure of the referendum petition at issue pursuant to a FOIA request.” Shepherdstown Observer, 226 W. Va. at 362-63, 700 S.E.2d at 814-15.

While there are no cases construing FOIA in the context of voter registration records or the results of voting, such records have been routinely made available to the public upon request.

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J. Emergency Medical Services records

If the holder of information requested under the FOIA falls within the Act's definition of  "public body," its records would be accessible to the public unless it is covered by a statutory exemption. No West Virginia statute, rule or case law addresses disclosure of emergency medical services records. Possible exemptions that might be claimed for emergency medical services records include the personal privacy and the law enforcement exemptions. W. Va. Code §  29B-1-4(a)(2) and (4).

Under the provisions of the Local Emergency Telephone System statute, the West Virginia Legislature has found that “information pertaining to numbers of customers and revenues collected by CMRS [commercial mobile radio service] providers is obtained and maintained in a competitive environment and that information pertaining to the providers' subscribers could be used to the disadvantage of the participating CMRS provider[.]” W. Va. Code § 24-6-11. Accordingly, the legislature has exempted proprietary “information provided by the public service commission and any county or enhanced 911 program” from disclosure under the West Virginia Freedom of Information Act. Id.

While “calls for emergency service to a county answering point are not confidential[,] [a]ll calls for emergency service reporting alleged criminal conduct which are recorded electronically, in writing or in any other form are to be kept confidential by the county answering point receiving the call and may be released only pursuant to an order entered by a court of competent jurisdiction, a valid subpoena or through the course of discovery in a criminal action requiring the release of the information[.]” W. Va. Code § 24-6-13. However, the county answering point may release “information to a responding agency as may be necessary for that agency's response on a call or the completion of necessary reports relating to that call.” Id.

All calls made to the mine safety anonymous tip hotline are confidential and not subject to the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 15-5B-6.

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K. Gun permits

Until 2015 West Virginia required those who desire to carry concealed weapons to obtain a permit. W. Va. Code § 61-7-4. The 2015 West Virginia Legislature amended FOIA to add a twentieth exemption for gun license application information "including applications, supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit." W. Va. Code § 5B-2-4(a)(20).

A proviso to exemption 20 states that "information in the aggregate that does not identify any permit holder other than by county or municipality is not exempted." Moreover, information or other records that fall within exemption 20 may, nevertheless, be disclosed to a law enforcement agency or officer to determine the validity of a permit, to assist in a criminal investigation or prosecution, or for other lawful law- enforcement purposes. Id. § 5B-2-4(a)(20) (i) (ii) and (iii).

However, the 2016 Legislature repealed requirements for a permit to carry a hidden firearm for those over the age of 21. Thus, practically speaking, the twentieth FOIA exemption applies only to concealed weapons permits required for West Virginians who want to carry concealed in the more than 30 states with which West Virginia has concealed carry reciprocity agreements and to provisional carry permits issued to persons between the ages of 18 and 21.

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L. Homeland security and anti-terrorism measures

In 2003 the West Virginia Legislature amended FOIA by adding eight new exemptions related to homeland security and anti-terrorism planning. See, W. Va. Code § 29B-1-4(9) - (16). No judicial decisions have been reported which have involved any of the new exemptions.

West Virginia Code section 29B-1-4 was further amended to add subsections (b) and (c), which provide that the term "terrorist act", as used in the new exemptions to the section, "means an act that is likely to result in serious bodily injury or damage to property or the environment and is intended to: (1) intimidate or coerce the civilian population; (2) influence the policy of a branch or level of government by intimidation or coercion; (3) affect the conduct of a branch or level of government by intimidation or coercion; or (4) Retaliate against a branch or level of government for a policy or conduct of the government. W. Va. Code § 29B-1-4 (b).

West Virginia Code section 29B-1-4 (c) indicates that nothing in the eight anti-terrorism exemptions (subdivisions (9) through (16) ) of subsection (a) "should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity." W. Va. Code § 29B-1-4(c).  The precise meaning of this provision has not been the subject of judicial interpretation.

Under the Aboveground Storage Tank Act, the public has “access to all documents and information submitted to the department pursuant to this article, subject to the limitations contained in the state Freedom of Information Act . . . or any information designated by the Division of Homeland Security and Emergency Management as restricted from public release.” W. Va. Code § 22-30-14(a).  “Trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management as restricted from public release shall be secured and safeguarded by the department” and “shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees or representatives of a state or federal agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the state's water resources.” Id. Disclosure of such information is subject to criminal penalties. Id.

The Aboveground Storage Tank Act has other confidentiality provisions. For example, the “list of the potential sources of significant contamination contained within the zone of critical concern or zone of peripheral concern as provided by the Bureau for Public Health, working in conjunction with the department and the Division of Homeland Security and Emergency Management may only be disclosed to the extent consistent with the protection of trade secrets, confidential business information and information designated by the Division of Homeland Security and Emergency Management. . . .”  W. Va. Code § 22-30-14(b).  In addition, “[t]he exact location of the contaminants within the zone of critical concern or zone of peripheral concern is not subject to public disclosure in response to a Freedom of Information Act request. . . .” Id. “However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern or zone of peripheral concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility.” Id.

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M. Hospital reports

"An individual's medical records are classically a private interest," Child Protection Group v. Cline, 350 S.E.2d at 545 (1986) 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 and Cline 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 are confidential information. Such confidential information includes 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 uncoded information from which there is no possible means to identify a client or patient.

West Virginia Code section 27-3-1 provides for disclosure of confidential information in five 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;

(4) To provide notice to the federal National Instant Criminal Background Check System, established pursuant to section 103(d) of the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922;

(5) Without the patient's consent,  as provided for under the Privacy Rule of the federal Health Insurance Portability and Accountability Act of 1996, 45 C.F.R. § 164.506, for thirty days from the date of admission to a mental health facility if:

(i) The provider makes a good faith effort to obtain consent from the patient or legal representative prior to disclosure;

(ii) the minimum information necessary is released for a specifically stated purpose; and

(iii) prompt notice of the disclosure, the recipient of the information and the purpose of the disclosure is given to the patient or legal representative.

W. Va. Code § 27-3-1. 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 as to whether its provisions would constitute a blanket exemption for psychiatric records in the custody of a public body. Although the court in Child Protection Group v. Cline 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. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).

Records concerning a public hospital institution, rather than individuals, normally will be subject to disclosure. Queen v. WVU Hospitals, 179 W. Va. 95, 365 S.E.2d 375 (1987). West Virginia Code section 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." W. Va. Code § 16-5C-16. 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 required to furnish "such information as he may have concerning admissions, discharges, deaths and other matters. the director of health, must he 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 may not be made 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 health care 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.

However, in Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986), the state Supreme Court upheld the general validity of this provision. However, the court also ruled that  if the West Virginia Board of Medicine makes a preliminary determination that probable cause exists to substantiate charges of disciplinary disqualification, all proceedings on such charges must be open to the public. Moreover, the public must be provided access to all peer reviews, other reports, records, and nondeliberative materials introduced at hearing on the charges.

In Thompson v. W. Va. Board of Osteopathy, 191 W. Va. 15442 S.E.2d 712 (1994), 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.

Also deemed confidential and exempt from the West Virginia Freedom of Information Act are healthcare providers’ “[r]eports, recommendations or opinions, findings or advice received or made by the division for the purpose of determining whether a person is qualified to be licensed to drive.”  W. Va. Code § 17B-3-13. These records “may only be admitted in proceedings to either suspend, revoke or impose limitations on the use of a driver's license . . . or to reinstate the driver's license.” Id.

“[A]ll information, records and reports received by or developed by a state or regional long-term care ombudsman which relate to a resident of a facility, including written material identifying a resident, are confidential and are not subject to the [West Virginia Freedom of Information Act], and shall not be disclosed or released by the long-term care ombudsman.” W. Va. Code § 16-5L-15(b).  While information relating to investigations under the long-term care ombudsman program is confidential, there are four exceptions to this rule:

(1) Where disclosure is authorized in writing by the complainant, or resident or the guardian, committee, attorney in fact or representative of the resident;

(2) Where disclosure is necessary to the office of adult protective services of the department of health and human resources in order for such office to determine the appropriateness of initiating an investigation regarding potential abuse, neglect or emergency circumstances as defined in article six, chapter nine of this code;

(3) Where disclosure is necessary to the office of health facility licensure and certification of the department of health and human resources in order for such office to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure and/or certification; or

(4) Upon order of any appropriate county circuit court after the judge in term or vacation thereof has conducted a hearing following adequate notice to all parties and rendered a determination as the interests of justice may require.

Id.

Under the West Virginia Health Care Provider Professional Liability Insurance Availability Act, “[a]ny specific claim reserve information is exempt from public disclosure under the freedom of information act.” W. Va. Code § 29-12B-12.

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N. Personnel records

Personnel records, including information contained in an individual's application and disciplinary records, generally would be subject to the balancing test required for disclosure of personal information under FOIA Exemption 2, discussed above. Facts — such as an individual's name and residential address — which "are not 'personal' or 'private' facts but are public in nature in that they constitute information normally shared with strangers and are ascertainable by reference to publicly obtainable books and records" are disclosable even without the balancing test required for more intimate information. See generally, In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008)(recognizing, in dicta, that such records should be available to the public upon FOIA request). See also, Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013)(West Virginia State Police records regarding an internal investigation or inquiry stemming from either a complaint of misconduct by a state police officer in connection with the officer’s official duties is subject to release in some circumstances). Syl. Pt. 8, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). Public bodies have routinely disclosed information regarding public employees' salaries.

A 2016 FOIA amendment excluded from disclosure personal information relating to law-enforcement officers that is maintained by a public body in the ordinary course of an employer-employee relationship. § 29B-1-4 (a)(21). As used in this exemption, “personal information” includes the officer's social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the law-enforcement officer's spouse, parents and children.

Some personnel records are made specifically subject to, or exempt from, disclosure by other statutes. West Virginia Code section 29-6-16 provides that records of the state civil service commission, "except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection." W. Va. Code § 29-6-16. West Virginia Code section 18-29-3 regulates grievance proceedings for education employees and West Virginia Code section 29-6A-3 regulates grievance proceedings for public employees. These provisions mandate that "[a]ll grievance forms and reports shall be kept in a file separate from the personnel file of the employee and shall not become a part of such personnel file, but shall remain confidential except by mutual agreement of the parties." Id.

West Virginia Code section 8-14-10 requires the Policemen's Civil Service Commission to "[k]eep minutes of its own proceedings, and records of its examinations and other official actions. All recommendations of applicants for office, received by the said commission or by any officer having authority to make appointments to office, shall be kept and preserved for a period of ten years, and all such records, recommendations of former employees excepted, and all written causes of removal, filed with it, shall, subject to reasonable regulation, be open to public inspection." W. Va. Code § 8-14-10.

Records identifying specific individuals by name are not per se exempt from disclosure unless the record falls within one of the exemptions of FOIA or are otherwise rendered specifically exempt from disclosure pursuant to the provisions of another statute.

Expense reports of government employees or contractors do not fall within any FOIA exemption and should be disclosed upon request.

Under the Government Employees Deferred Compensation Plans Act, “[a]ll information . . . that would tend to disclose the identity of a participating employee, including, without limitation, social security number, account number, address, telephone number, e-mail address, amounts invested, selected investments, returns and medical or disability information, are confidential and exempt from disclosure under [FOIA].” W. Va. Code § 5-10B-2.

Under the Public Records Management and Preservation Act, personal information of state officers, employees or retirees, such as their home addresses, social security numbers, credit or debit card numbers, driver’s license identification numbers, and marital status or maiden names, which are maintained by West Virginia’s executive, legislative or judicial branch agencies, are confidential and exempt from disclosure to non-governmental entities under the West Virginia Freedom of Information Act.  W. Va. Code § 5A-8-21(a). The legislature recognized, “It is the policy of the state of West Virginia that the information enumerated in subsection (a) of this section is personal and confidential and should only be released to non-governmental entities for such purposes as are authorized by federal law or regulation, a provision of this code or a legislative rule promulgated pursuant to [FOIA].” W. Va. Code § 5A-8-21(b).

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1. Salary

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

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2. Disciplinary records

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

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3. Applications

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

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4. Personally identifying information

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

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5. Expense reports

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

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

The scope of the FOIA exemption for records of law enforcement agencies is discussed in the preceding section. In general, the exemption applies only to (1) "information compiled as part of an inquiry into specific suspected violations of the law" and (2) internal records which reveal "confidential investigative techniques and procedures." Syl. pts. 11, 12, Hechler v. Casey,  175 W. Va. 434, 333 S.E.2d 799, 802 (1985).  Items such as mug shots, police blotters and 911 tapes normally would not meet these prerequisites for confidentiality, and thus should be subject to disclosure.

Records which are "generated pursuant to 'routine administration, surveillance or oversight'" are not exempt, and "[t]he fact that information . . . may form a basis for further investigation . . . or may alert the administrator to a possible violation of law . . . does not make that [information] an investigatory record created pursuant to an investigation." Hechler v. Casey, 333 S.E.2d at 813 (citation omitted) (emphasis in original).  Similarly, although the protection of confidential police techniques and procedures was identified in Hechler as one of the primary reasons for the law enforcement exemption, this protection does not extend to "ordinary manuals or procedures unless they include confidential details of law enforcement programs." Id.

Again, various statutes contain more specific provisions governing access to certain types of law enforcement records. Accident reports that are filed by law enforcement officers with the state Department of Motor Vehicles are available for public inspection at DMV (W. Va. Code § 17A-2-14; 51 Op. Att'y Gen. 556 (1965)), and also should be available under the FOIA from the officers directly.

Active investigatory records are exempt from disclosure, W. Va. Code § 29B-1-4(4). However, since the primary purpose of the exemption is "'to prevent premature disclosure of investigatory materials which might be used in a law enforcement action,'" Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 812 (1985)(citation omitted)(emphasis added), the exemption should no longer apply once the "detection and investigation" has concluded. See Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50, 52 (1984) ("We have no evidence of what interests are intended to be protected by nondisclosure in this particular case, especially after the investigation has ceased and no charges have been filed. We have been admonished to make decisions in favor of disclosure."); Op. Att'y Gen., April 18, 1986, at 112 (information revealed in Legal Services Corporation audit is exempt from disclosure while in custody of prosecutors investigating possible criminal violations but reverts to public status once investigation is concluded).

Arrest records and compilations of criminal histories maintained by the Criminal Investigation Bureau of the state police are exempt from disclosure under the provisions of West Virginia Code section 15-2-24. That statute denies public access to "fingerprints, photographs, records or other information" maintained by the CIB.

There is no specific provision in the FOIA regarding access to such information as confessions, or the identities of victims and informants. The general test is whether the information was "compiled as part of an inquiry into specific suspected violations of the law" or reveals "confidential investigative techniques and procedures" — will determine whether such records are open to public inspection. This test does not apply to information concerning alleged crimes reported to security or other officials at colleges and universities.

West Virginia Code section 15-12 entitled the Sex Offender Registration Act authorizes the electronic release of information regarding certain sex offenders required to register under West Virginia Law. A database registry of sex offenders is available via the West Virginia State Police website: https://apps.wv.gov/StatePolice/SexOffender/Disclaimer?continueToUrl=http%3A%2F%2Fapps.wv.gov%2FStatePolice%2FSexOffender%2F.

Emergency medical services records of state or local government funded emergency services providers should be available to FOIA requesters. A public body holding such records may assert claims of exemption pursuant to FOIA exemption 2. That exemption relates to “information of a personal nature such as that kept in a personal, medical or similar file.” W. Va. Code § 29B-1-4(a)(2). To the extent that such records reflect medical treatment or the medical condition of a person who has received emergency medical services, it is likely that courts would hold such information exempt under exemption 2. However, the fact of provision of emergency services to an individual as well as the time and circumstances arguably should be disclosed if requested under the FOIA.

The West Virginia State Police Laboratory receives and maintains DNA a database of records and samples in the course of the police work done by the State Police. These records and materials are exempt from disclosure under the FOIA pursuant to W. Va. Code §15-2B-12 (d).

Inmates of West Virginia correctional institutions are subject to monitoring and recording of all telephone calls they make to persons outside the facility where they are imprisoned.  Inmate's telephone conversations are exempt from disclosure as law enforcement records under exemption 4 of FOIA, W. Va. Code § 25-1-17. See W. Va. Code  § 29B-1-4 (a)(4)(A).

The West Virginia Legislature established a West Virginia controlled substances monitoring act for the purpose of requiring the recordation and retention in a single repository of information regarding the prescribing, dispensing and consumption of certain controlled substances. W. Va. Code § 60A-9-2.  The information required by this article to be kept by the West Virginia Board of Pharmacy is declared confidential and not subject to disclosure under the FOIA. § 60A-9-5(a)(1).

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1. Accident reports

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

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2. Police blotter

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

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3. 911 tapes

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

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4. Investigatory records

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

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5. Arrest records

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

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6. Compilations of criminal histories

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

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7. Victims

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

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8. Confessions

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

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9. Confidential informants

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

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10. Police techniques

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

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11. Mugshots

In practice, most public bodies disclose mugs shots upon FOIA request.

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12. Sex offender records

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

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13. Emergency medical services records

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

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

The FOIA has no specific exemption for prison, parole and probation reports. However, the West Virginia Parole Board has promulgated a regulation exempting some information in Parole Board possession. In Shrout v. Murphy, the Parole Board had denied a prisoner parole because the Board rated community and official sentiment with regard to petitioner’s possible release “extremely negative” and because the petitioner failed to complete “recommended programming.” 2015 WL 424901, No. 14–0491 (W. Va. Sup. Ct. Jan. 30, 2015).

The prisoner asked the Board all documents it had relied on in determining community and official sentiment. The Board refused to disclose the documents because such disclosure would invade the privacy of the persons who commented and “would interfere with the sentiment process.” In per curium opinion, the West Virginia Supreme Court upheld a trial court order blocking disclosure based on the Board’s regulations that provided:

Any inmate or interested party may make a request for records of the Parole Board pertaining to consideration of an offender for release on parole; rescission or revocation of parole or discharge of a parolee from supervision provided such records are subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B–1–1 et seq. Examples of documents not to be disclosed include but are not limited to the following: official, judicial, or community sentiment of any form.

92 W. Va. C.S.R. § 1–10.1 (Emphasis added.)

Thus, unless the particular materials requested fall with the regulation’s exception or any of the exemptions discussed above for personal information or law enforcement records, they would be available for public inspection.

The disclosure of presentence reports prepared by a court's probation office is discretionary with the court, under Rule 32 of the W. Va. Rules of Criminal Procedure. The Supreme Court has ruled that even the defendant has no absolute right to full disclosure of his presentence report. State v. Godfrey, 170 W. Va. 25, 289 S.E.2d 660 (1981). Probation revocation proceedings are conducted in open court, and public access is guaranteed as for any court proceeding.

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Q. Professional licensing records

Applicants for licenses to practice certain professions are required to submit to criminal background checks. Those professions include medicine and surgery, podiatrists, physician assistants, dentists, pharmacists, professional and practical nurses, optometrists, veterinarians, osteopathic physicians and surgeons, psychologists and school psychologists. W. Va. Code § 30-1D-1(c)(5) declares that criminal history and related records from these background checks are not “public records” as defined by FOIA. Id.

Reports prepared by physicians and other healthcare providers diagnosing sexual transmitted diseases that are filed with municipal officers and the state director of health are confidential and not subject to the disclosure provisions of the West Virginia Freedom of Information Act. W. Va. Code § 16-4-6(c).  These reports, however, are “open to inspection by the director of the division of health, and by local health officers, or officers whose duties are connected with executing the laws against these diseases[.]” Id. “[A]ny person who knowingly and willfully divulges or discloses any information” about these reports may be subject to fines and criminal prosecution. Id.

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R. Public utility records

Public utility records in the possession of any public body such as the Public Service Commission would be subject to disclosure unless the particular information sought is one of the sixteen exempt categories discussed in the previous section.  As discussed above, the Supreme Court has ruled that information contained in the annual reports submitted by public utilities to the Public Service Commission are public, unless the utility establishes by clear and convincing evidence that the information constitutes a trade secret or comes within one of the other exemptions. AT&T Communications v. Public Service Comm’n, 188 W. Va. 250, 423 S.E.2d 859 (1992).

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S. Real estate appraisals, negotiations

The only specific state FOIA exemption for real estate appraisals or negotiation material is the provision of FOIA Exemption 6 that protects the "location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites." W. Va. Code § 29b-1-4(6).

In Veltri v. Charleston Urban Renewal Authority, 178 W. Va. 669, 363 S.E.2d 746 (1987), the Kanawha County Circuit Court ordered the Authority to release all appraisals it had obtained on a parcel of real estate it had purchased.

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1. Appraisals

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

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2. Negotiations

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

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3. Transactions

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

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4. Deeds, liens, foreclosures, title history

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

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5. Zoning records

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

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T. School and university records

There is no specific FOIA exemption for school or university records. However, confidentiality of West Virginia public school records is required by several laws and policies. The West Virginia Student Data Accessibility, Transparency and Accountability Act, provides protection for a wide range of "Confidential student information" that is defined as:

"data relating to a person's Social Security number, or other identification number issued by a state or federal agency, except for the state-assigned student identifier as defined in this section, religious affiliation, whether the person or a member of their household owns or possesses a firearm, whether the person or their family are or were recipients of financial assistance from a state or federal agency, medical, psychological or behavioral diagnoses, criminal history, criminal history of parents, siblings or any members of the person's household, vehicle registration number, driver's license number, biometric information, handwriting sample, credit card numbers, consumer credit history, credit score, or genetic information."

W. Va. Code § 18-2-5h. See also, West Virginia Bd. of Educ. Procedural Rules, W. Va. R. § 126-94-1 et seq., which is applicable to all state educational agencies and institutions. (procedures "set forth the conditions governing the protection and privacy and access of parents and students as it relates to the collection, maintenance, disclosure and destruction of education records by agencies and institutions under the supervision of the West Virginia Board of Education"). See http://statelaws.findlaw.com/west-virginia-law/west-virginia-privacy-of-school-records-laws.html - sthash.0NxNV0Nw.dpuf

However, individual students' and personnel records generally would be subject to the balancing test applicable to personal information. Information concerning the institution, including trustee records, should be available for public inspection. A specific statute requires colleges and universities in the state to provide information to the public regarding alleged crimes occurring on campus and reported to the school's security or other officials. W. Va. Code § 18B-4-5a.

It should be noted, however, that many student records of state colleges and universities are exempt from disclosure pursuant to federal law. The Family Educational Rights and Privacy Act,  (“FERPA”) (20 U.S.C. § 1232g; 34 CFR Part 99) the Individuals with Disabilities Education Act (IDEA), the Protection of Pupil Rights Amendment (PPRA), and the National School Lunch Act (NSLA), are federal laws that provide various levels of confidentiality for student education records. FERPA applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Information relating to FERPA is available at the United States Department of Education website: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

Corporations created under the Higher Education Act are exempt from the provisions of the Open Government Proceedings Act and the West Virginia Freedom of Information Act. W. Va. Code § 18B-1F-4(a)(4).

All information relating to a reported incident of harassment, intimidation or bullying in schools is confidential, and exempt from disclosure under the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 18-2C-3(b)(10).

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1. Athletic records

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

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2. Trustee records

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

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3. Student records

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

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

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

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U. State guard records

There are no West Virginia statutes relating to accessibility of State guard records other than FOIA.

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V. Tax records

Except when required as part of a Tax Commissioner investigation or court proceeding in which the Commissioner is a party, it is unlawful for any state, county, municipal, or government subdivision officer, employee or agent to divulge any information in, or relating to, an individual, firm or corporate tax return. Similarly, it is unlawful to disclose any information in, or relating to, any tax report, investigation, taxpayer return, audit, declaration, or investigation under the state tax code concerning the personal affairs of any individual or the business of any single firm or corporation. W. Va. Code § 11-10-5d(a).

Also subject to the above confidentiality and disclosure restrictions are tax returns and return information obtained from the Tax Commissioner as part of an exchange of information agreement or pursuant to subsections (d) through (n) of West Virginia Code section 11-10-5d that is in the possession of any official officer, employee, agent or representative of a local or municipal government entity.

Unlawful disclosure of such tax related information is punishable as misdemeanor and subject to a fine of not more than one thousand dollars or one-year imprisonment, or both. W. Va. Code, § 11-10-5d(c).

There are a several exceptions to the above confidentiality requirements of West Virginia Code section 11-10-5d that are relevant to the public's right of access to tax records. The Tax Commissioner may release statistics that do not allow identification of particular returns and items contained therein.

Administrative decisions or summaries thereof of the Tax Commissioner are required to be released to the public with any identifying characteristics or facts about the taxpayer omitted or modified so as to not disclose the name or identity of the taxpayer. However, if the taxpayer appeals the administrative decision to a circuit court or waives in writing his/her right to confidentiality those identifying characteristics may be disclosed to the public.

Importantly, West Virginia Code section 11-10-5d (l) provides, "if the Tax Commissioner believes that enforcement of the tax laws administered under this article will be facilitated and enhanced thereby, he or she shall disclose, upon request, the names and address of persons who:

  • have a current business registration certificate;
  • are licensed employment agencies;
  • are licensed collection agencies;
  • are licensed to sell drug paraphernalia;
  • are distributors of gasoline or special fuel;
  • are contractors;
  • are transient vendors;
  • are authorized by law to issue a sales or use tax exemption certificate;
  • are required by law to collect sales or use taxes;
  • have been convicted of a criminal violation of this state's tax laws.
  • are foreign vendors authorized to collect use tax; or
  • whose business registration certificate has been suspended or canceled or not renewed by the Tax Commissioner;
  • against whom a tax lien has been recorded under section twelve of this article (including any particulars stated in the recorded lien);
  • against whom criminal warrants have been issued for a criminal violation of this state's tax laws.

In Hurlbert v. Matkovich, 233 W. Va. 583, 760 S.E.2d 152 (2014), the court addressed vendor's FOIA request for Computer–Assisted Mass Appraisal (“CAMA”) files relating to county tax assessor assessment for real property. As part of the real property assessment process, the county assessor is charged with “mak[ing] out the land books” which contain the tax ticket number, taxpayer name, map, parcel, deed book/page, property description, assessed value, and tax for each parcel of property in the county.” W. Va. Code §§ 11–4–1 et seq. This information is publicly available in the county offices; county assessors transmit this information to the State Tax Department for inclusion in the department's statewide Computer–Assisted Mass Appraisal.

The court also held that in determining whether the real property tax assessment information fell within the confidentiality provisions of the state tax code, West Virginia Code § 11–1A–23, as confidential “returns and return information” exempt from disclosure or are part of the non-confidential “itemized description,” in the statute, it was necessary "to resort to our well-established canons of statutory construction." 233 W. Va. at 592, 760 S.E.2d at 161.

The Tax department also argued, "the Legislature intended to make all of the data collected and/or utilized by the assessor for property appraisal purposes confidential, with the exception of the scant description of real property in the land books." The court found that "the language of the statute belies such a position." Id.  The court observed that "[i]f the entire universe of information collected by the assessor were intended by the Legislature to be confidential save the land book description, it would have been unnecessary for the Legislature to make . . . specific additional exemption[s] for burglar alarms and security systems as such information would fall within the broad-sweeping confidentiality urged by respondents. "[A] cardinal rule of statutory construction, said the court, "is that significance and effect must, if possible, be given to every section, clause, word or part of the statute,” concluding that the CAMA data is not categorically exempted from disclosure pursuant to West Virginia Code § 11–1A–23(a). 233 W. Va. at 593, 760 S.E.2d at 162. Thus, the court held that the circuit court had erred in ruling that the CAMA data was subject to a wholesale exemption from disclosure because it includes some of these more narrowly defined exemptions. To the extent that the information requested falls within specific tax code exemptions, it may not be disclosed in response to a FOIA request. Id.

The court also rejected the Tax Departments argument that the CAMA data is categorically exempt from disclosure under FOIA’s exemption for information of a personal nature. W. Va. Code § 29B–1–4[a](2). The lower court had held all of the CAMA data exempt "based upon a few generally referenced categories of “personal” information presumably contained within the CAMA files and the inclusion of “return” information and burglar alarms/security systems." On remand, the Supreme Court directed the trial court to require submission of a Vaughn index containing the specific exemptions claimed by respondents as to the specific fields of data in the CAMA files, whereupon the circuit court is to evaluate the specific categories of information sought in accordance with the exemptions delineated in West Virginia Code sections 11–1A–23(a) and 29B–1–4.

Information provided to the secretary of revenue or to an employee in the office of the secretary. is exempt from disclosure under FOIA. W. Va. Code § 11B-1-6 (a).  Moreover, information that by statute is confidential in the possession of any division, agency, board, commission or office of the department of revenue may be disclosed to the secretary, or an employee in the office of the secretary. That information is exempt under FOIA. W. Va. Code § 11B-1-6 (b).

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W. Vital Statistics

Birth and death certificates are governed by West Virginia Code section 16-5-27 (b), which provides that:

[I]t shall be unlawful for any person to permit inspection of, or to disclose, confidential information contained in vital records or reports, or to copy or issue a copy of all or part of any vital record or report unless authorized by this article, by legislative rule or by order of a court of competent jurisdiction: Provided, That nothing in this article prohibits the release of information or data that would not identify any person named in a vital record or report.

Legislative rules of the West Virginia Department of Health narrowly circumscribe vital statistics information that may be disclosed to the public. See, W. Va. R. § 64-32-14 (Disclosure and Protection of Integrity of Vital Records). The State Registrar is prohibited from "providing listings of names or addresses from vital records to the general public for private use or distribution or commercial firms or agencies for commercial or business use." Id. at § 64-32-14.1.g. The rules provide for disclosure of some information that does not identify individuals; a written request must be made therefore that complies with the requirements of W. Va. R. § 64-32-14.2. The rules may be accessed online at: http://apps.sos.wv.gov/adlaw/csr/ruleview.aspx?document=2770

Documentation of marriages and divorces do not fall within any exemption and should be disclosed upon request.

No West Virginia statutory law mentions limits the disclosure of records relating to infectious disease and health epidemics. However, exemption 2 of FOIA---  section 29B-1-4(a)(2), relating to information of a personal nature such as that kept in a personal, medical or similar file” --- could be asserted by government bodies in an effort to withhold information relating to infectious disease and health epidemics. Exemption 2 would apply only to medical records naming specific individuals. Arguably such records should be disclosed after redaction of information identifying individuals suffering from an epidemic-related disease. If an infectious disease or health epidemic was caused by terrorist activity, records relating to such an event may be claimed exempt under exemptions 11 through 16,  section 29B-1-4(a)(11)-(16) and/or  section 29B-1-4(c). Those exemptions have not been the subject of any public discussion or litigation since their enactment in response to the September 11, 2001 terrorist attacks on the World Trade Center in New York City and the Pentagon in Virginia.

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1. Birth certificates

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

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2. Marriage and divorce

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

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3. Death certificates

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

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4. Infectious disease and health epidemics

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

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IV. Procedure for obtaining records

This section addresses the most frequently asked question under the Freedom of Information Act: "How do I file an FOIA request?"

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A. How to start

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

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1. Who receives a request?

The Freedom of Information Act requires that requests for access to records be made to the person in charge of the government body:

“A request to inspect or copy any public record of a public body shall be made directly to the custodian of such public record.”

W. Va. Code § 29B-1-3(b). “Custodian” means the elected or appointed official charged with administering a public body. W. Va. Code § 29B-1-2(1).

In  Hurlbert v. Matkovich, 233 W. Va. 583, 760 S.E.2d 152 (2014), the West Virginia Supreme Court held that its "jurisprudence . . . clearly demonstrates a liberal construction of “custodian” and not only countenances disclosures if the requested records are, at a minimum, in possession of the public entity, but has been extended to require disclosure of documents over which the public body does not possess, but merely exercises control. See Syl. Pt. 3, Daily Gazette Co., Inc. v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986), superseded by statute on other grounds, Daily Gazette Co., Inc. v. W. Va. Dev. Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (holding that “lack of possession” not determinative where the writing is “subject to the control of the public body” (emphasis added)); see also Kissinger v. Reporters Comm., 445 U.S. 136, 151, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (“[A]gency possession or control is prerequisite to triggering any duties under the FOIA.” (emphasis added)). But see Affiliated Construction Trades Foundation v. Regional Jail and Correctional Authority, 200 W. Va. 621, 490 S.E.2d 708 (1997) (Where public body has unexercised right to obtain copy of writing relating to the conduct of the public's business which was prepared and retained by private party, that fact alone does not mean the writing is "public record" under FOIA).

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2. Does the law cover oral requests?

The FOIA requires a denial of a request for access to records to be in writing. It is possible that an oral request might be honored by a public body, but it is highly recommended that the request be made in writing because it is important to trigger the beginning of the agency's statutory response time as well as establish and document the specific parameters of the request should it be denied and judicial review be sought. Thus, a written request should be the rule; oral requests should be avoided unless time constraints make reduction of the request to writing infeasible.

The "custodian" of public records is required, upon FOIA request, to "furnish proper and reasonable opportunities for inspection and examination of the records in his office and reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them." W. Va. Code § 29B-1-3(3). The statute does permit public bodies to "make reasonable rules and regulations necessary for the protection of the records and to prevent interference with the regular discharge of his duties . . . but in no circumstances may these limitations be used so as to prevent a person from access to the records." Richardson v. Town of Kimball, 176 W. Va. 24, 340 S.E.2d 582 (W. Va. 1986). An internet search should reveal whether a particular agency has adopted regulations governing inspection procedures. See also http://apps.sos.wv.gov/adlaw/csr/

Although the FOIA has no requirement that advance arrangements be made for inspection or copying of records, an agency might require this by regulation. Moreover, if locating the records will be at all time consuming, advance arrangements obviously would be desirable and is recommended.

If an oral request is made and denied, the agency should be asked to provide the denial in writing, as required by the Freedom of Information Act. If this request is refused, or if the denial does not specifically and correctly describe what records were requested, a written record of what was requested should be made together with the reasons given for the denial. If a clerk, or someone other than the actual "custodian" of the records made the denial, it is essential that a formal written request be directed to the custodian.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

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

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1. Statutory, regulatory or court-set time limits for agency response

West Virginia Code section 29B-1-3(d) mandates:

"The custodian, upon demand for records made under this statute, shall as soon as practicable but within a maximum of five days not including Saturdays, Sundays or legal holidays:

(a) Furnish copies of the requested information;

(b) Advise the person making the request of the time and place at which he may inspect and copy the materials; or

(c) Deny the request stating in writing the reasons for such denial."

(Emphasis supplied).

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2. Informal telephone inquiry as to status

Unless the agency has clearly indicated its intention to refuse the request, however, one option is for the requester to make an informal telephone inquiry regarding the status of the request is advisable if the response is not received within the time limit. More importantly, if there is any chance that the requester may choose to seek judicial review if the agency fails to respond to her FOIA request, contacts with the custodian of records should be made in writing. The written follow-up request for a timely response can be attached as exhibits to a FOIA complaint filed in court.

If the initial request was oral or was made to someone other than the official "custodian" of the records, a formal written FOIA request letter must be sent to the custodian — including a reminder that you will seek reimbursement for attorneys' fees if the agency's failure to respond necessitates legal action.

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3. Is delay recognized as a denial for appeal purposes?

The FOIA does not specifically specify the consequences of a public body's failure to respond within the five-day limit. However, the courts routinely have treated such lack of response, for purposes of judicial review, as a denial of the request. Failure of a custodian  to provide a timely response to a FOIA request is considered a violation of the statutory mandate. The Federal FOIA explicitly allows a requester to file suit in court if an agency fails to respond to the request.  5 U.S.C § 552 (4)(C)(i) (“Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph”).

Requesters should be cautioned that in many cases when the public body has not responded to a FOIA request within the time mandated by the five working days limit, it is inadvisable to immediately file a lawsuit asking a court to order release of responsive documents. Rather, if the exigency of the moment allows, the requester should send a letter (preferably by certified mail, return receipt requested), documenting that the time for response is over and asking for an immediate response. One might consider sending an additional letter or letters creating a paper trail that can be attached to a court complaint if a response isn’t forthcoming. A court is not likely to look with favor on a public body’s failure to respond, when it asks for an unreasonable extension of time to respond or refuses to give the requester a fair estimate of the time beyond 5 working days that it will take to respond to a request. This advisability of taking this approach to an untimely response, or no response from a public body, depends upon how important is a very quick response.

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4. Any other recourse to encourage a response

Typical approaches to encourage a response would include seeking the assistance of the press or an influential person whether within or without the public body. Another, method of informally encouraging a response is through the agency's legal advisor. The state Attorney General's office represents most state agencies and some agencies have their own "in-house counsel." Counties and political subdivisions usually obtain legal advice from the county prosecuting attorney or city attorney. If a public body's refusal seems to be clearly erroneous under the statute, and it is not based upon the advice of the public body's attorney, it may be worthwhile to ask the agency to consult with its lawyer. In some cases, a requester may want to contact the lawyer directly and seek his/her intervention on your behalf. In many cases, the agency's lawyer will be the Attorney General's office that may advise an agency (and a court reviewing the agency's action) that it considered the agency's refusal unjustified. A note of caution, the Office of the Attorney General at the time of publication of this edition of this Guide (2018) has not been as supportive of citizen and media rights of access to public records under the FOIA as have past occupants of the Office.

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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 elected or appointed official charged with administering a public body," W. Va. Code § 29B-1-3(2) — there usually is no avenue for formal or informal administrative appeals of a request denial. As noted above, it is important to develop a “paper trail” of the requester’s efforts to obtain a response to a FOIA request. If the requester is a journalist, it may be advisable to write and publish stories about the public body’s failure to comply with its legal duties under FOIA.

Some agencies, such as professional licensing boards, may have an administrator who is not actually a decisionmaker. In these cases, a denial by the "custodian" may not reflect agency policy, and an informal appeal to the governing board might be considered. Also, in the case of refusals by local agencies that are under the indirect supervision of a state agency, an informal appeal to the state agency may be worthwhile. (W. Va. Code § 16-5-27 (c) provides for such an administrative appeal in one instance: denials of access to local vital statistics records are appealable to the state health department.)

Because there is no formalized procedure for such appeals, ordinarily one must depend on the administrator's cooperation to present the request to the governing body and to obtain a prompt decision. If this approach is pursued, it is important to provide a clear description of the records or portions of records that were denied and of the reasons given for such denial (or of the relevant facts if you are raising another issue such as excessive fees or delays). The requester should state why the administrator's decision wrong: if possible, the specific portion of the statute or case that makes the error clear should be referenced. Remember, if the issue is not clear, it is unlikely that the administrator's decision will be overruled except by a court. It is often advisable for the requester to indicate that if a failure to disclose the requested information is successfully challenged in court, the agency may be required to pay the attorney fees of the requester.

There is no time limit established either for making an informal appeal, or for receiving a decision. An appeal letter should specify the time limit within which you desire a response and should state that a failure to respond within this period will be considered a denial. Be reasonable in setting this time limit: since there are no established procedures for such appeals, an expeditious decision is unlikely. If an informal appeal is directed to a part-time governing board, a greater delay in receiving a response must be expected. It should be understood that an informal appeal from a record custodian’s denial of a FOIA request is an option that can delay resolution of the matter and is unlikely to be successful in many cases. Generally, public bodies will not overturn a record custodian’s denial of a FOIA request, notwithstanding whether the denial was lawful or not.  If a requester needs the requested materials promptly, the only truly effective avenue of appeal is to a circuit court.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

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

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3. Fee issues

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

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4. Contents of appeal

5. Waiting for a response

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

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6. Subsequent remedies

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

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Just as "any person" may request access to records under the Freedom of Information Act, "any person denied the right to inspect the public record of a public body" may sue to enforce that right. W. Va. Code § 29B-1-5(1).

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2. Priority

The FOIA confers priority on cases involving the denial of access to public records: "Except as to causes the court considers of greater importance, proceedings arising under [the FOIA] shall be assigned for hearing and trial at the earliest practicable date." W. Va. Code §  29B-1-5(3). Such a "priority" however, is left to the discretion of the trial court, which often may consider other matters to be of greater importance.

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3. Pro se

There is no requirement that an attorney file a FOIA suit. In fact, one court decision ordering public bodies to provide access to records was the result of suits filed pro se by individuals, representing themselves. Veltri v. Charleston Urban Renewal Authority, 178 W. Va. 669, 363 S.E.2d 746 (1987). However, seeking relief in court without the aid of an attorney is problematic and should be the subject of careful consideration of the temperament of the court toward the press and the identity and expertise of possible opposing counsel. Successful pro se FOIA litigants are entitled to an award of court costs, but because they have not been represented by an attorney, they are not eligible for an award of attorney fees. Smith v. Bradley, 223 W. Va. 286, at 293, 673 S.E.2d 500, at 507 (2007).

In all Freedom of Information Act cases, the "burden is on the public body to sustain its action," W. Va. Code § 29B-1-5, and in a simple case one may be able to rely solely upon the agency' s inability to justify its denial. As a general rule, the more complicated or important the issue or the less time one has available to learn the basics of judicial procedures, the more one needs an attorney. The old adage that “he who represents himself has a fool for a client “should be considered before one proceeds pro se.

Remember that, if an attorney is retained to obtain records and a court finds that the information requested was withheld wrongfully under the statute, the requester is entitled Court ordered  attorney fees that must be paid by the agency that withheld the information. Some attorneys may agree to represent a requester with the understanding that the requester will pay costs and that the attorney will be compensated for his or her work only if the suit causes withheld documents to be disclosed, thus triggering a judicial award of attorney fees. This was the arrangement between the newspaper and its attorneys in Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”).

If your issue is an important one, other news organizations might be willing to join your case and share expenses. For example, in the suit which opened the West Virginia Board of Medicine's records and proceedings to the public, the two Charleston newspapers existing at the time — normally competitors — joined forces as plaintiffs to pursue an issue of great interest to both of them. See Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986).

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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 can establish patterns for future access. During the course of the litigation, depending on the plaintiff’s claims, the court will determine whether there has been a denial of access to records or the fees demanded by the public body are within the scope permitted by the law, whether any claim of exemption is valid, and the scope and application of an exemption if relevant to the requested information.

The court may choose to review withheld documents in camera (without counsel or parties present) or require the appointment of a special master to accomplish this task. See e.g., Daily Gazette Co. Inc. v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette II”).

Other provisions of the Freedom of Information Act may be alleged to have been violated by a public body, such as the limitations on fees charged for copying, time limits for responding to requests, and a determination of whether the petitioner is entitled to an award of attorneys' fees, may also be addressed in a FOIA request for judicial review.

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a. Denial

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

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b. Fees for records

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

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c. Delays

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

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d. Patterns for future access (declaratory judgment)

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

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5. Pleading format

The complaint need only contain a “a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the FOIA plaintiff seeks. Relief in the alternative or of several types may be demanded. Every such pleading shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals. W. Va. R. Civ. P. 8.

If the complaint seeks injunctive relief, it must be verified. The complaint must describe the contents of the FOIA request and state when and to whom the request was made. The reasons (if any) given for the denial of the FOIA request must be set forth. It is advisable to invoke the FOIA in the complaint, as well as the state constitution and common law, if applicable, as the legal basis for the claim. If either the request or the denial is in writing, a copy should be attached to the complaint as an exhibit. Moreover, it may be advisable to attach other documents including letters and email communications that reveal a course of conduct by a public body to support the complaint allegation that it has violated the FOIA. It is important to clearly identify the information to which access was denied.

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6. Time limit for filing suit

The FOIA does not have a time limit for filing suit. As a practical matter, however, a new request to the agency would be advisable if there has been a long delay between the date of denial and the date a requester files suit or, if there is reason to believe that circumstances prompting the initial denial might have changed. When an agency fails to respond to a request for information within the five "working days" time period allocated by the FOIA, such inaction will likely be treated by West Virginia courts as a judicially reviewable denial of disclosure.

Requesters should be cautious about immediately rushing to court, however, without developing a more extensive written record. It is advisable to send at least one or more follow-up letter(s) to the non-responding public body emphasizing that it has failed to meet the statutory deadline for a response and warning that, should the body fail to respond promptly, the requester may seek a court order, thus exposing the public body to an award of attorneys’ fees and costs. One caveat to this suggestion applies when there is an urgent need to review documents in an expeditious fashion. When time is of the essence, one may be justified in going directly to court without further contacts. Such action should be the exception and not the rule.

Finally, it should be noted that, in some instances, a plaintiff in "certain civil actions" must give thirty-day prior notice to the West Virginia Attorney General of an intent to sue a state government agency. W. Va. Code § 55-17-3. However, the best interpretation of this statutory requirement is that it is only applicable to "litigation that may have significant consequences that can only be addressed by subsequent legislative action" and that FOIA lawsuits do not fall within this category. This is so because FOIA actions do not seek the expenditure of public funds as a remedy and because FOIA itself makes prompt agency and judicial responses a core goal of the statute.

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7. What court?

Suits seeking access to records under the Freedom of Information Act ordinarily must be brought "in the circuit court in the county where the public record is kept." W. Va. Code § 29B-1-3(4). However, an exception to this provision, according to a recent state Supreme Court decision, is that FOIA complaints in which the defendant public body is a state agency may be brought only in the Circuit Court of Kanawha County. W. Va. Code § 14-2-2; State ex rel. Fairmont State Univ. Bd. of Governors v. Wilson, 806 S.E.2d 794, 239 W. Va. 870 (2017).

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

Reasonable attorney fees may be awarded to successful FOIA plaintiffs. Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”). West Virginia Code section 29B-1-7 provides:

“Any person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to section five of this article shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records.+

W. Va. Code § 29B-1-7. In Smith v. Bradley, the Court outlined the rules relating to eligibility and entitlement for an award of statutory attorney fees:

Under § 29B-1-7 the successful FOIA Plaintiff need not have prevailed on every argument he/she advanced during the FOIA proceedings or have received the full and complete disclosure of every public record he/she wished to inspect or examine. An award of attorney's fees is proper even when some of the requested records are ordered to be disclosed while others are found to be exempt from disclosure or are released in redacted form. In the final analysis, a successful FOIA action, such as would warrant an award of attorney's fees as authorized by W. Va. Code § 29B-1-7, is one which has contributed to the defendant's disclosure, whether voluntary or by order of court, of the public records originally denied the plaintiff.

Smith v. Bradley, 223 W. Va. 286, 292, 673 S.E.2d 500, 506 (2007) (citing Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”)).

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b. Court and litigation costs

Court costs may be awarded to successful FOIA plaintiffs. Smith v. Bradley, 223 W. Va. at 293, 673 S.E.2d at 507.

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

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.

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2. Time limits for filing appeals

The losing party has four months from the entry of the circuit court's ruling to appeal to the state Supreme Court. W. Va. Code § 58-5-4. However, the trial court judge may, prior to the expiration of such period of four months, enter an order to extend and re-extend the appeal period for up to two months, for good cause shown, if a request for preparation of a trial transcript was made by the appellant within thirty days of the entry of such judgment, decree or order. Id.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press has a substantial interest in reporters' rights of access to government information and frequently files friend-of-the-court briefs for open records issues when they are being considered at the highest appeal level in the state. Other news organizations and associations within the state also may want to support a FOIA requester’s suit  by filing amicus briefs, since a decision in the  case may affect them all. The West Virginia Supreme Court of Appeals generally welcomes amicus briefs from interested parties and appears to give them full consideration.

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G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

Generally speaking, the coverage provisions of the Act are written in broad terms consistent with the Legislature's intent to give all members of the public as much access as possible to meetings held by their governmental representatives. To provide this expansive coverage, the Legislature has chosen general language as opposed to specific language naming each public agency subject to the provisions of the Open Meetings Act.

The general term "public agency," for example, is used to cover practically any governmental agency or council. Therefore, in the following discussion concerning the Act's application, the conclusions reached usually are based upon the fact the particular agency, person, or level of government falls within the broad language of the statute. Where a specific provision in the Open Meetings Act addresses a particular situation, it will be noted.

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A. Who may attend?

Any member of the public may attend a meeting subject to the Open Meetings Act.

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B. What governments are subject to the law?

All levels of government, ranging from a city council to the State Legislature, fall within the general term "public body" used in the Act. The requirements of the statute apply to "this state or any political subdivision." W. Va. Code § 6-9A-2(6). Courts and family law masters are specifically excluded.

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1. State

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

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2. County

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

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3. Local or municipal

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

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C. What bodies are covered by the law?

The Open Meetings Act applies to the meetings of every "governing body" of "any public agency." W. Va. Code § 6-9 A-2 (3). The 1999 amendments to the Open Meetings Act replaced the term "public body" with "public agency." A public agency is defined as follows:

[A]ny administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power. The term "public agency" does not include courts created by article eight of the West Virginia constitution or the system of family law masters created by article four [§§ 48A-4-1 et seq., repealed], chapter forty-eight-a of this code.

W. Va. Code § 6-9A-2(6). (The 1978 amendment to this statute removed "any political party executive committee" from the definition of "public body.") See Hamrick v. Charleston Area Medical Center, Inc., 220 W. Va. 495, 499, 648 S.E.2d 1, 5 (W. Va. 2007). In Hamrick, the West Virginia Court stated that the “1999 changes to the definitional section of the Open Government Act changed the term “public body” to “public agency;” this change does not seem to have made any substantive difference.”  Id.

A "governing body" consists of "the members of any public agency having the authority to make decisions for or recommendations to a public agency on policy or administration, the membership of a governing body consists of two or more members." W. Va. Code § 6-9A-2(3).

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1. Executive branch agencies

Since the Open Meetings Act applies only to proceedings of the "governing body" of a public agency, defined as entities with two or more members, individual executives such as a governor or mayor are not covered by the statute. This conclusion simply means a governor can meet with his staff without being required to open such a meeting to the public. However, where the mayor is acting in connection with a city council meeting, he becomes part of a public agency and the meeting would be covered by the Open Meetings Act.

No executive branch agencies are specifically excluded from the statute's coverage.

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a. What officials are covered?

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

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b. Are certain executive functions covered?

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

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c. Are only certain agencies subject to the act?

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

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2. Legislative bodies

The Act applies to all legislative bodies, including the State Legislature or a city council. W. Va. Code § 6-9A-2(4). A 1993 amendment to the statute provides that "a governing body of the Legislature is any standing, select or special committee, except the commission on special investigations, as determined by the rules of the respective houses of the legislature." Id.

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3. Courts

The Open Meetings Act excludes courts from its coverage. In its definition of “public agency,” it is stated that the term does not include courts created by article eight of the West Virginia Constitution or the system of family law masters created by article four, chapter forty-eight-a of this code." [§§ 48A-4-1 et seq., repealed], chapter forty-eight-a of this code." This exclusion from the Act’s definition does not mean courts may meet in secret. Courts are required by Article III, Section 17 of the West Virginia Constitution to be open to the public.

The public's right of access to judicial proceedings — civil and criminal, trial and pretrial — under the state constitution is even greater than the access rights provided by the federal constitution. See e.g., State ex rel. Herald Mail Company v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980). The state Supreme Court's decisions in Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986). As discussed in the Foreword and below, constitutional access requirements have been extended to all public bodies exercising quasi-judicial powers.

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4. Nongovernmental bodies receiving public funds or benefits

As noted in the previous sections, the Open Meetings Act's coverage depends upon whether a "governing body" of a "public agency" is involved. Public agencies include "[A]ny administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power." W. Va. Code § 6-9A-2(7).

Nongovernmental bodies with no connection or agency relationship with government, by definition, are not public agencies and therefore not subject to the Act. However, it could be argued that public funding creates an agency relationship between the nongovernmental body and government sufficient to make it subject to the statute, particularly if the organization is performing a public function. Any conclusion concerning whether a nongovernmental body which receives public funds is subject to the Open Meetings Act would have to be based upon the facts of the particular case.

It should be noted that even though a particular agency or committee may not fall within the definition of public agency, the Legislature, through additional legislation, could mandate that a nonpublic body be required to abide by the Act. For example, the Legislature has required that “all meetings of a governing body of a hospital shall be open to the public.” W. Va. Code § 16-5G-3 (1982). This openness requirement is based primarily on the fact these hospitals receive either public funds or special benefits under state tax laws, and that there is an obvious and significant public interest in their operations.

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5. Nongovernmental groups whose members include governmental officials

The question regarding the applicability of the Open Meetings Act to a nongovernmental group whose members include governmental officials is simply whether the inclusion of these governmental officials is sufficient to make the group an agency of government. The argument for coverage would be stronger if the governmental officials are acting within this nongovernmental group in their official, rather than private, capacities. Again, any conclusion regarding the coverage of the Open Meetings Act in this situation would have to be based on the facts of the particular case.

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6. Multi-state or regional bodies

Where a multistate or regional body holds a meeting in this state, the threshold question is whether it is a "public agency" under the Open Meetings Act. The statute's definition of public agency is limited to agencies of government in this state, whether it be on the local, county, or state level of government. The fact that the membership of these two bodies is not limited to this state, but includes other states, seems to preclude the Act from being applied to the entire multistate or regional body. However, to the extent a multistate or regional body consists in part of state representatives who form a public agency within the larger organization, this West Virginia public agency would be subject to the Act.

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7. Advisory boards and commissions, quasi-governmental entities

The Open Meetings Act's definition of a "public agency" — as "[A]ny administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power." W. Va. Code § 6-9A-2(7). In addition, the statute's definition of "governing body" specifically includes entities whose function is "to make decisions for or recommendations to a public agency on policy or administration." Id. § 6-9A-2(4).

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8. Other bodies to which governmental or public functions are delegated

The public agency definition also is broad enough to cover other bodies to which governmental or public functions are delegated. As with most of these categories, any conclusion concerning the applicability of the Open Meetings Act depends upon the particular facts.

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9. Appointed as well as elected bodies

Whether an agency is appointed or elected makes no difference under the Open Meetings Act as long as it is a public agency.

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D. What constitutes a meeting subject to the law

What constitutes a meeting was extensively addressed by the West Virginia Supreme Court of Appeals in McComas v. Fayette County Board of Education, 197 W. Va. 88, 475 S.E.2d 280 (1996). In that case, persons opposed to a county plan for school consolidations challenged a gathering of four of the five members of the county board of education. In holding it was a meeting and thus subject to the state's Open Meetings Act, the court was not persuaded that those attending did not plan on the others showing up, that no formalities were followed, that no votes were taken or resolutions adopted, or that no one voiced an opinion on the proposed plans.

The 1999 amendments to the Open Meetings Act, however, modified the statutory definition. The amendment of that definition was prompted, in part, by adverse reaction to the court's holding in McComas. The amendment provides:

"Meeting," means the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter that results in an official action. Meetings may be held by telephone conference or other electronic means. The term meeting does not include:

(A) Any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding;

(B) Any on-site inspection of any project or program;

(C) Any political party caucus;

(D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or

(E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting.

W. Va. Code § 6-9A-2 (4).

The 1999 amendments to the Act added subsection (4) (D) to the list of activities that do not fall within the definition of "meeting." Moreover, those amendments added a definition of the term "official action" which bears on the meaning of subsection (4) (D). "'Official action' means action taken by virtue of power granted by law, ordinance, policy, rule, or by virtue of the office held."

While the amended definition of "meeting" and the new definition of "official action" offer explicit additional legislative guidance as to the scope of the term, the extent to which the amendment modifies the court's holding in McComas is not at all clear. It seems obvious, at least, that the new definition narrows the potential breadth of the court ruling insofar as it relates to application of the Act to discussions between public officials in informal settings. There has not yet been a judicial opinion interpreting the amended term.

In Foundation for Living v. The Cabell-Huntington Board of Health, 214 W. Va. 818, 591 S.E.2d 744 (2003) a lower court finding of fact that a meeting held by the Cabell-Huntington Board of Health to discuss a proposed non-smoking ordinance was for educational purposes and did not violate the open meetings act was upheld by the Supreme Court. The meeting at issue fell within the exception for "general discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned . . . educational, training . . . or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to official action . . . " W. Va. Code § 6-9A-2(4)(D).

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1. Number that must be present

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

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a. Must a minimum number be present to constitute a "meeting"?

A meeting is defined as "the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in official action." The term "meeting” does not include:

(A) Any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding;

(B) Any on-site inspection of any project or program;

(C) Any political party caucus;

(D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or

(E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting."

W. Va. Code § 6-9A-2(4). Subsections (D) and (E) were added by the 1999 amendments.

"Quorum" is defined as "a simple majority of the constituent membership of a governing body." W. Va. Code § 6-9A-2(7). In Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979), the West Virginia Supreme Court interpreted these two provisions to mean a meeting is subject to the Open Meetings Act only if the convening is for the purpose of making a decision or deliberating toward a decision, and if some statute or rule requires a quorum as a prerequisite to convening. However, while the court's opinion in McComas clearly broadened the definition of "meeting," the continued viability of McComas' interpretation of the breadth of the term "meeting" is questionable. The new definition most certainly narrows the scope of the term from that identified in McComas, 197 W. Va. 88, 475 S.E.2d 280 (1996).

Also, the quorum requirement need not be explicit. In Common Cause v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), the court reviewed the state Legislature's process of preparing an annual "budget digest," which by statute must be "prepared at the direction of and approved by members of the conferees committee on the budget." The court held the statute "contemplates preparation of the Budget Digest by the entire Conferees Committee on the Budget (or a quorum thereof)," and that the process therefore must comply with the Open Meetings Act. Id.

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b. What effect does absence of a quorum have?

The absence of a quorum at a meeting has the effect of preventing the public agency from either deliberating toward or making a decision but does not affect whether the provisions of the Open Meetings Act apply.

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2. Nature of business subject to the law

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

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a. "Information gathering" and "fact-finding" sessions

There is no specific provision in the Act excluding meetings involving information gathering or fact-finding. However, in defining the word "meetings," the statute specifically excludes

"(A) any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding, (B) any on-site inspection of any project or program, (C) any political party caucus," (D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or (E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting.

W. Va. Code § 6-9A-2(4).

Whether these exemptions would apply would depend on the facts. McComas indicates that information gathering and fact-finding are important precursors to decision making, and such meetings may be subject to the Open Meetings Act. McComas, 197 W. Va. 88, 475 S.E.2d 280 (1996). Even in the case of an adjudicatory hearing conducted by quasi-judicial agencies, under the State Bar and Board of Medicine decisions there is a constitutional right of access to "all reports, records, and non-deliberative materials introduced at such hearings, including the record of the final action taken." Daily Gazette v. W. Va. Board of Medicine, 352 S.E.2d at 70, quoting Daily Gazette v. W. Va. State Bar, Syl. Pt. 5, 176 W. Va. 550, 326 S.E.2d 705 (1984).

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b. Deliberation toward decisions

The Open Meetings Act does not mention deliberations toward decisions. Before McComas, the West Virginia Supreme Court had held that deliberations toward decisions constitute an adjudicatory session, exempt from the Act under W. Va. Code § 6-9A-2(4), Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979), and deliberations seemed to be exempt from the public's constitutional right of access to adjudicatory proceedings under the State Bar and Board of Medicine decisions. Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986).

However, the Supreme Court was moving toward interpreting the Open Meetings Act to require public scrutiny of some of the deliberative processes of government in Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991). There, the court ruled that the process by which the Legislature's Conferees Committee on the Budget prepares an informal but influential budget "digest" setting forth its view of the specific purposes for which general appropriations should be used, must comply with the Open Meetings Act. The court noted that the contents of the digest are the result of "various compromises and agreements [which] emerge from myriad negotiations" by legislators and ruled that this process of negotiation and compromise must be open to public view. Not only must the digest be approved in public meetings, the court held, but the Conferees Committee must create and maintain for public inspection "memoranda of the negotiations, compromises and agreements or audio recordings of committee or subcommittee meetings where votes were taken or discussions had that substantiate the material which is organized and memorialized in the Budget Digest." Syl. Pt. 5. Common Cause of W. Va. v. Tomlin, 186 W. Va. 537, 413 S.E.2d 358 (1996). This suggests such meetings may be subject to the Open Meetings Act.

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3. Electronic meetings

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

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a. Conference calls and video/Internet conferencing

A 1999 amendment to the Open Meetings Act definition of "meeting" explicitly states, "meetings may be held by telephone conference or other electronic means." W. Va. Code § 6-9A-2(4) Most state agencies provide a conference call number to facilitate participation in the meeting by its members and electronic attendance by members of the public. The 800-access number is often printed in the state register.

If a government body meeting were held via electronic means such as email, text or instant messaging, social media, or online discussion boards it would be subject to the requirements of the Open Meetings Law.

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b. E-mail

There have been no reported meetings conducted via computer, whether by way of an online chat or through e-mail.

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c. Text messages

There have been no reported meetings conducted using text messaging.

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d. Instant messaging

There have been no reported meetings conducted via instant messaging.

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e. Social media and online discussion boards

There have been no reported meetings conducted using social media or online discussion boards.

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E. Categories of meetings subject to the law

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

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1. Regular meetings

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

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a. Definition

As noted previously, a meeting is "the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in an official action. The term does not include (A) any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding, (B) any on-site inspection of any project or program, (C) any political party caucus, (D) General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action; or (E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting." W. Va. Code § 6-9A-2(4).

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b. Notice

The Open Meetings Act requires that, except in emergencies, state executive agencies must give notice of their meetings "at least five days prior to the date of the meeting":

Each governing body of the executive branch of the state shall file a notice of any meeting with the secretary of state for publication in the state register. Each notice shall state the date, time, place and purpose of the meeting. Each notice shall be filed in a manner to allow each notice to appear in the state register at least five days prior to the date of the meeting.

W. Va. Code § 6-9A-3. In the event of "an emergency requiring immediate official action," these executive agencies "may file an emergency meeting notice at any time prior to the meeting." Id.

The Act does not prescribe any particular time limit for giving notice of the meetings of other public bodies. Instead, the applicable time limit is established by each such agency, whose governing body is required to promulgate rules providing for notice of meetings to be made "in advance . . . except in the event of an emergency requiring immediate official action." W. Va. Code § 6-9A-3. In the cases of state agencies, these regulations must be filed in the office of the Secretary of State and published in the state register.

For most public bodies, the Act simply states that advance notice of a meeting must be given "to the public and news media." W. Va. Code § 6-9A-3. Again, the statute requires the governing body of each public agency to promulgate rules establishing specific notice provisions. However, as noted above, the Act provides a special rule for the governing bodies of the executive branch of the state, which are required to "file a notice of any meeting with the secretary of state for publication in the state register." Id.

Except for the requirement that state executive agencies file notice of their meetings with the secretary of state for publication in the state register, the statute does not state where notice of meetings must be posted. The Attorney General has advised that posting a notice on the courthouse door will fulfill the requirements of the statute for county commission meetings, Op. Att'y Gen., June 23, 1978, and that all state agencies should, at a minimum, file notice with the Secretary of State. Op. Att'y Gen., (Nov. 20, 1978).

There are no provisions in the Open Meetings Act specifying agenda items that must be included in the notice of a public agency's regular meetings. However, the notice of any special meeting must include the purpose of the meeting. W. Va. Code § 6-9A-3.

The contents of the notice are left up to the governing body to determine when it promulgates its notice regulations. At a minimum, the Act requires the notice to state the date, time, place and agenda of regular meetings, and the time, place and purpose of special meetings. Every notice given by the governing bodies of the executive branch of the state must include the time, place and purpose of the meeting. Notice of the agenda of a meeting is required of all governing bodies; when the governing body of the state government's executive branch is required to file a notice of a meeting with the secretary of state including the date, time, place and the "purpose" of the meeting rather than its agenda.

In Capriotti v. Jefferson Cnty Planning Comm’n, No. 13-1243 (W. Va. Supreme Court, February 26, 2015) (memorandum decision), the court held that a generic notice that “Reports from Legal Counsel and legal advice to [Planning Commission]” . . . “was not adequate to inform the Petitioners, and other members of the public, that it planned to discuss the FAF litigation or a proposed settlement thereof.” The agenda’s “generic reference to ‘legal advice’ provided no indication whatsoever that the ongoing FAF proceedings would be a topic of discussion at the Planning Commission’s . . . meeting” and thus violated West Virginia Code § 6–9A–3.

The Open Meetings Act includes a very specific penalty for the failure to provide adequate notice in accordance with the statute. Where an "adversely affected party" files a petition challenging the public agency's action, any court of competent jurisdiction "may invalidate any action taken at any meeting for which notice did not comply" with the notice requirements of the Act. W. Va. Code § 6-9A-3.

The impact of this provision can be significant. In Wetzel County Solid Waste Authority v. W. Va. Division of Natural Resources, 184 W. Va. 482, 401 S.E.2d 227 (1990), a landfill company's permit to dispose of large quantities of waste material was invalidated. After years of litigation, the permit issue was decided on the basis of a circuit judge's ruling that the county commission's approval of the permit at a meeting was invalid because the commission had failed to give adequate notice that the permit would be considered, as required by the Open Meetings Act.

However, the West Virginia Court has emphasized that “[a] finding that a violation [of the Open Governmental Proceedings Act] occurred ... does not necessarily require invalidation of all actions taken during or following from the wrongfully held ... meeting.” McComas v. Bd. of Educ. of Fayette Cnty., 197 W. Va. at 201, 475 S.E.2d at 293 (1996).

Further, it is a criminal misdemeanor offense for any member of a public or governmental body to willfully and knowingly violate the provisions of the act. Upon conviction, the offender may be required to pay a fine of not less than one hundred dollars nor more than five hundred dollars. W. Va. Code § 6-9A-7.

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c. Minutes

Every public agency is required to maintain minutes of its meetings, which must include at least: (a) the date, time and place of the meeting; (b) the name of each member of the governing body present and absent; (c) all motions, proposals, resolutions, orders, ordinances and measures proposed, the name of the person proposing the same and their disposition; and (d) the results of all votes and, upon the request of a member, the vote of each member, by name. W. Va. Code § 6-9A-5.

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, 178 W. Va. 669, 363 S.E.2d 746 (1987).

Public bodies must record in their minutes any court order which compels compliance or enjoins non-compliance with the Open Meetings Act, or which annuls a decision made in violation of the Act. W. Va. Code § 6-9A-6.

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2. Special or emergency meetings

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

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a. Definition

An emergency meeting is defined simply as a meeting required to be held because "immediate official action" is required.

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b. Notice requirements

In the event of an emergency requiring immediate official action, governing bodies of the executive branch of the state "may file an emergency meeting notice at any time prior to the meeting." W. Va. Code § 6-9A-3. The time limit for giving notice of an emergency meeting is not stated with regard to other public bodies, which must promulgate and abide by their own notice rules. Id.

The Open Meetings Act does not state to whom notice of an emergency meeting is to be given. The governing bodies of the executive branch of the state presumably would file the notice of an emergency meeting with the Secretary of State.

The posting of an emergency notice for most public bodies would depend upon their own rules. It is not clear where the notice of an emergency meeting, filed by a governing body of an executive branch of the state, would be posted since there probably would not be time for such notice to be published in the state register.

In the case of emergency meetings held by executive agencies of state government, the notice must include the purpose of the meeting. There is nothing in the Act specifying the agenda items that must be included in the emergency meeting notices of other public bodies, but the provision that notice of all "special" meetings include the purpose presumably would apply to emergency meetings also.

For most public bodies, there is no particular information required to be included in the notice of an emergency meeting. The notice of an emergency meeting filed by the governing bodies of the executive branch of the state must include "the date, time, place and purpose of the meeting and the facts and circumstances of the emergency."

The penalties and remedies described above in reference to general notice requirements of the Open Meetings Act also apply to emergency meetings.

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c. Minutes

Emergency meetings are subject to the same requirements as any other meetings with respect to maintaining and granting public access to minutes.

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3. Closed meetings or executive sessions

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

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a. Definition

An executive session is "any meeting or part of a meeting of a governing body which is closed to the public." W. Va. Code § 6-9A-2(2). The Act specifies twelve topics that may be considered in a closed session, and these are discussed later in this outline. No decision may be made in an executive session. W. Va. Code § 6-9A-4 (a).

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b. Notice requirements

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.

The presiding officer is required to announce to the other members of the governing body and the general public that the public agency is going to go into executive session and state the authority for doing so. Moreover, there is no requirement for posting the notice of an executive session. Under the statute, the presiding officer simply can give notice orally during the course of the meeting.

There is no requirement for particular public agenda items to be included in the presiding officer's request to go into executive session. However, since the request must specify the justification for a closed session, it necessarily must give some description of the items to be discussed. There is no other information required in the request for an executive session.

The Open Meetings Act does not provide any penalties for failing to follow the rules set out for going into executive session. The Act does provide that the public agency cannot make any decision in executive session; therefore, any decision reached in such a closed meeting would be voidable.

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c. Minutes

The Act's 1999 amendments appear to exempt minutes of executive sessions from public disclosure; the amendment appears to presume that such minutes will be prepared. Provision is made for the later disclosure of that portion of executive session minutes when they contain reference to confidential settlement and other matters that are later rendered non-confidential by subsequent action.

The official minutes of the executive session need not be made available to the public. W. Va. Code § 6-9A-5. If an agency makes an informal written record of a discussion held in a closed executive session, those notes also may be exempt from the Freedom of Information Act. Op. Att'y Gen., July 17, 1986.

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d. Requirement to meet in public before closing meeting

An initial public session, during which the presiding officer presents the justification for closure and the body votes on the issue, is a prerequisite to any executive session. W. Va. Code § 6-9A-4.

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e. Requirement to state statutory authority for closing meetings before closure

The presiding officer of a governing body must publicly state the authority under the Act for requesting the governing body go into executive session. W. Va. Code § 6-9A-4.

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f. Tape recording requirements

The Open Meetings Act does not require a public agency to tape record either the regular meeting or meetings held in executive session. However, if such a tape is made at an open meeting, it would constitute a public record under the Freedom of Information Act. Veltri v. Charleston Urban Renewal Auth., 178 W. Va. 669, 363 S.E.2d 746 (1987).

A tape recording of discussions of a public body during an executive session from which the public was excluded may nevertheless be discoverable in civil litigation that does not involve Open Meeting Act claims.

In State ex rel. Marshall County Commission v. Carter, 225 W. Va. 68, 689 S.E.2d 796 (2010), the West Virginia Court held that “the provision of the Open Governmental Proceedings Act, W. Va. Code §§ 6–9A–1 to 6–9A–12, which recognizes in specific and limited circumstances the right of governing bodies to meet in an executive session which is closed to the public is not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which are not otherwise privileged.” Id. at 76, 689 S.E.2d at 804.

In Carter, the plaintiff sought to discover a tape of an executive session to examine it for evidence that he had been discriminated against because of his disability in violation of the State Human Rights Act.  In holding that the ALJ could order the county to produce the recording, the court stated, “We simply reaffirm the rights of a litigant in a civil action to discover potentially relevant evidence of unlawful conduct arising from an executive session of a government body.” Id. at 76, 689 S.E.2d at 804.

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F. Recording/broadcast of meetings

The Open Meetings Act includes a provision on the allowance of radio and television recordings:

(a) Except as otherwise provided in this section, any radio or television station is entitled to broadcast all or any part of a meeting required to be open.

(b) A public agency may regulate the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting, so as to prevent undue interference with the meeting. The public agency shall allow the equipment to be placed within the meeting room in such a way as to permit its intended use, and the ordinary use of the equipment may not be declared to constitute undue interference: Provided, that if the public agency, in good faith, determines that the size of the meeting room is such that all the members of the public present and the equipment and personnel necessary for broadcasting, photographing, filming and tape-recording the meeting cannot be accommodated in the meeting room without unduly interfering with the meeting and an adequate alternative meeting room is not readily available, then the public agency, acting in good faith and consistent with the purposes of this article, may require the pooling of the equipment and the personnel operating it.

W. Va. Code § 6-9A-9. Given that the amendment allows video and sound recordings to be made by radio and television stations at meetings, it would arguably be arbitrary and capricious to deny reporters and other members of the public the right to make such recordings so long as their recordings as long as they do not unduly interfere with the meeting.

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1. Sound recordings allowed

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

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2. Photographic recordings allowed

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

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G. Access to meeting materials, reports and agendas

The Open Governmental Proceedings Act requires that “minutes of all meetings except minutes of executive sessions, if any are taken, shall be available to the public within a reasonable time after the meeting.” Moreover, it is the duty of the attorney general to compile the statutory and case law pertaining to the Open Meetings law and to prepare appropriate summaries and interpretations for the purpose of informing public officials subject of the requirements of this article. The secretary of state, the clerks of the county commissions, joint clerks of the county commissions and circuit courts, and the city clerks or recorders of state municipalities must provide a copy of the material compiled by the attorney general to all elected and appointed public officials within their respective jurisdictions. W. Va. Code § 6-9A-12.

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H. 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. W. Va. Code § 6-9A-7(a).

Subsection (b) provides that a public agency, whose governing body is found in a civil action to have conducted a meeting in violation the Act may be liable to a prevailing party for fees and other expenses incurred by the plaintiff in connection with litigating the issue of whether the governing body violated the statute. The subsection contains a caveat that exempts the public agency from paying attorney fees and costs if the court finds that the position of the public agency was substantially justified or that special circumstances make an award of fees and other expenses unjust. W. Va. Code § 6-9A-7(b).

Subsection (c) of W. Va. Code § 6-9A-7 permits a court denying relief in a civil action brought under the Act, may require the complaining person to pay the governing body's necessary attorney fees and expenses, if and only if, the court further finds that the action was frivolous or commenced with the primary intent of harassing the governing body or any member thereof or, in the absence of good faith, of delaying any meetings or decisions of the governing body.

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A. Exemptions in the open meetings statute

1. Character of exemptions

The Open Meetings Act does not permit the closing of a meeting simply because the public agency believes closure would serve the public interest. To the contrary, the statute mandates that "except as expressly and specifically otherwise provided by law . . . all meetings of any governing body shall be open to the public." W. Va. Code § 6-9A-3 (emphasis added).

Unfortunately, many of the exemptions (called "exceptions") specified in the Open Meetings Act are so broad that they are subject to abuse and, even though a public agency cannot make a decision while in executive session, it is possible that everything but the actual decision will be made in an executive session and the reasons behind the decision will not be disclosed. The recent decisions of Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), and McComas Fayette County Board of Education, 197 W. Va. 88, 475 S.E.2d 280 (1996), may offer some protection against this practice.

There is no general exception to the Open Meetings Act, but there are nine specific exceptions that are deemed reasons for which a governing body may go into "executive session." These exceptions merely authorize a closed session at the discretion of the governing body; a majority vote is required to invoke the provisions that permit executive sessions. Note that in the case of the five exemptions directed toward protecting individual privacy, the individual involved may demand a public meeting.

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2. Description of each exemption

The Open Meetings Act, as amended in 1999, specifically exempts twelve categories of information from its provisions. These exceptions, which are stated in much broader language than the exemptions under the Freedom of Information Act, permit public bodies to meet in closed executive session to discuss the following items:

(a) The governing body of a public agency may hold an executive session during a regular, special or emergency meeting, in accordance with the provisions of this section. During the open portion of the meeting, prior to convening an executive session, the presiding officer of the governing body shall identify the authorization under this section for holding the executive session and present it to the governing body and to the general public, but no decision may be made in the executive session.

(b) An executive session may be held only upon a majority affirmative vote of the members present of the governing body of a public agency. A public agency may hold an executive session and exclude the public only when a closed session is required for any of the following actions:

(1) To consider acts of war, threatened attack from a foreign power, civil insurrection or riot;

(2) To consider:

(A) Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee, or prospective public officer or employee unless the public officer or employee or prospective public officer or employee requests an open meeting; or

(B) For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting;

(3) To decide upon disciplining, suspension or expulsion of any student in any public school or public college or university, unless the student requests an open meeting;

(4) To issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision, unless the person seeking the license, certificate or registration or whose license, certificate or registration was denied, suspended or revoked requests an open meeting;

(5) To consider the physical or mental health of any person, unless the person requests an open meeting;

(6) To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances;

(7) To plan or consider an official investigation or matter relating to crime prevention or law enforcement;

(8) To develop security personnel or devices;

(9) To consider matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving commercial competition, which if made public, might adversely affect the financial or other interest of the state or any political subdivision: Provided, That information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed: Provided, However, that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session;

(10) To avoid the premature disclosure of an honorary degree, scholarship, prize or similar award;

(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded;

(12) To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one [§ § 29B-1-1 et seq.], chapter twenty-nine-b of this code.

W. Va. Code § 6-9A-4. There are no decisions of the West Virginia Supreme Court of Appeals interpreting any of these exceptions to the Act. It is certain, however, that all of these exceptions --- particularly numbers two and four --- are limited by the constitutional requirement, discussed below, that quasi-judicial proceedings of public bodies be open to the public.

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B. Any other statutory requirements for closed or open meetings

A few specific statutes mandate certain proceedings be open or closed to the public. As in the case of public record statutes, discussed in the preceding section of this outline, these provisions may create a greater right of public access to particular proceedings.

Several statutes require "all meetings" of particular agencies to be open to the public. These include the Public Energy Authority (W. Va. Code § 5D-1-21), the Community Infrastructure Authority (W. Va. Code § 31-19-19), the Railroad Maintenance Authority (W. Va. Code §  29-18-23), and the Water Development Authority (W. Va. Code § 20-5C-21). Except for the Railroad Maintenance Authority Act, all of these statutes require the public agency to maintain the confidentiality of any "information relating to secret processes or secret methods of manufacture or production" and presumably these agencies could close portions of their meetings if necessary to comply with this mandate. However, the other exceptions in the Open Meetings Act apparently are not available to these bodies.

Most statutes that mandate confidentiality of particular proceedings are confined to judicial or adjudicatory proceedings, which, in any event, would not be subject to the Open Meetings Act. These statutes preclude public access to actions for divorce, W. Va. Code § 48-2-27, or adoption, W. Va. Code § 48-4-10, as well as juvenile proceedings, W. Va. Code § 14-2A-17, § 49-5-17. Additionally, grievance proceedings for employees of boards of education (W. Va. Code § 18-29-3) and for public employees (W. Va. Code § 29-6A-3), and meetings of medical peer review proceedings (W. Va. Code § 30-3C-3) are required by statute to be closed to the public, unless the involved individuals request a public proceeding.

In 1999, the West Virginia Legislature enacted amendments to the West Virginia Open Hospital Proceedings Act. Prior to the amendments, the statute simply provided that the public non-profit hospital boards were subject to the same requirements as other governing bodies covered by the Open Meetings Act, (W. Va. Code §§ 16-5G-1et seq.) The amendments provide comprehensive guidance relating to such hospital meetings, displacing its former reliance upon the Open Meetings Act. In many respects the new provisions of the amended hospital act adopt provisions of the Open Meetings Act as it was constituted prior to its 1999 amendments. Thus, one interested in issues relating to meetings of public non-profit hospital boards must look to the Open Hospital Proceedings Act rather than the generally applicable Open Meetings Act for guidance. See, e.g., Hamrick v. Charleston Area Medical Center, Inc., 648 S.E.2d 1 (W. Va. 2007) (“The definition of ‘governing body’ that was added to the Hospital Act in 1999 closely tracks the definition used in the 1982 Open Meetings Act, with the word ‘hospital’ substituted for the words ‘public body.’ ”)

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C. Court mandated opening, closing

As discussed previously, the open courts mandate of the state constitution provides a broad right of public access to judicial and quasi-judicial proceedings.

The state Supreme Court has held that this provision creates a "fundamental constitutional right of access" to civil and criminal judicial proceedings, as well as to the records and proceedings of quasi-judicial agencies. The court has relied on this provision to rule that disciplinary hearings held by the licensing bodies for attorneys and physicians, based upon charges of professional misconduct or incompetence, must be open to the public. The public also must be given access to "all reports, records, and nondeliberative materials introduced at such hearings, including the record of the final action taken." Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66, 70 (1986). These rulings apply to all agencies exercising quasi-judicial powers.

In addition, the state constitution provides greater public access to actual judicial proceedings than does the federal constitution. In State ex rel. the Herald Mail Company v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980), the Supreme Court of Appeals held the state constitution "confers an independent right on the public to attend civil and criminal trials, and not simply a right in favor of the litigants to demand a public proceeding." 267 S.E.2d at 548 (citations omitted). And in its State Bar decision, the court outlined the scope of the open courts mandate:

This fundamental constitutional right of access is not limited to formal trials but extends to other types of judicial and quasi-judicial proceedings. For example, in Hamilton, 267 S.E.2d at 551, this court recognized a public right of access to pretrial hearings in criminal cases. See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (first amendment right of access to pretrial voir dire); Sentinel Star Co. v. Edwards, 387 So. 2d 367 (Fla. App. 1980) (common law right of access to post-trial hearing concerning juror interview); Herald Co. v. Weisenberg, 89 A.D.2d 224, 455 N.Y.S.2d 413 (1982), aff'd, 59 N.Y.2d 378, 465 N.Y.S.2d 862, 452 N.E.2d 1190 (1983) (right of access to unemployment compensation hearing); In re Estate of O'Connell, 90 Misc. 2d 555, 394 N.Y.S.2d 816 (1977) ("open courts" statute requires examination of witness in will contest in surrogate's court to be public proceeding); In re Petition of Daily Item, 310 Pa. Super. 222, 456 A.2d 580 (1983) (right of access to preliminary hearings based upon "open courts" provision); Cohen v. Everette City Council, 85 Wash. 2d 385, 535 P. 2d 801 (1975) ("open courts" provision held to preclude sealing of transcript of city council's license revocation proceeding by court that reviewed transcript on appeal); State ex rel. La Crosse Tribune v. Circuit Court, 340 N.W.2d 460 (Wis. 1983) ("open courts" statute applied to voir dire proceedings).

Daily Gazette v. W. Va. State Bar, 326 S.E.2d at 710 n. 9.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Adjudicatory hearings by state or municipal bodies fall within the Open Meeting Act definition of "meeting." However, in defining the word "meeting," the Legislature excepted "any meeting for the purpose of making an adjudicatory decision in any quasi-judicial, administrative or court of claims proceeding." W. Va. Code §  6-9A-2(6). The exemption thus exempts meetings of such bodies in which the members discuss among themselves decisions that they must make in the course of an adjudication.

The West Virginia Supreme Court in Appalachian Power held that deliberations toward a decision regarding a utility rate increase fell within this adjudicatory exception. Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979).  This broad exception may not prevail under McComas, 197 W. Va. 188, 475 S.E.2d 280, 289 (1996), to the extent that deliberations in the nature of fact-finding meetings may be required to be conducted openly so that the public can learn the facts behind a given decision, but McComas clearly did not involve an adjudicatory decision.

Therefore, the nature and scope of this exception is unclear. In a more recent case involving a decision made by a town zoning board of appeals, the Court held that “while the Open Governmental Proceedings Act ... applies generally to [m]unicipal Boards of Zoning Appeals, the provisions of . . . the Act do not apply to ... ‘any meeting for the purpose of making an adjudicatory decision in a quasi-judicial administrative or court of claims proceeding,’” citing, W. Va. Code § 6–9A–2(4)(A). The court emphasized that “a quasi-judicial body is not required to conduct its deliberations for an adjudicatory decision in public view.” Sayers v. Bd. of Zoning Appeals of Town of Wardensville, No. 14-0087, 2014 WL 6607510 (W. Va. Supreme Court, Nov. 24, 2014) (mem. decision).

Again, it is important to remember that although quasi-judicial proceedings are exempt from the requirements of the Open Meetings Act, they are covered by the open courts mandate of the state constitution, as in Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705 (1984).

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1. Deliberations closed, but not fact-finding

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

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2. Only certain adjudications closed, i.e. under certain statutes

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

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B. Budget sessions

The statute does not permit budget sessions to be closed to the public. As discussed earlier, the state Supreme Court held in Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), that the process of preparing the Budget Digest must be conducted in conformance with the Open Meetings Act.

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C. Business and industry relations

The Open Meetings Act permits executive sessions to be held to discuss "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision." W. Va. Code § 6-9A-4(9). This broad exception probably would extend to many discussions for attracting business to the state, especially considering the confidentiality accorded economic development under W. Va. Code § 5B-2-1, as amended in 1997. There is a proviso added in the 1999 amendments that requires later disclosure of the content of closed meetings in certain circumstances:

(11) [I]nformation relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed: Provided, However, that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session.

(W. Va. Code § 6-9A-4(11)).

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D. Federal programs

Meetings involving federal programs are not exempted from the requirements that they be open to the public.

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E. Financial data of public bodies

Unless it comes within the scope of exemption nine — "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision" (W. Va. Code § 6-9A-4(9)) — there is no specific exception allowing meetings concerned with financial data of public bodies to be closed.

West Virginia Code § 6-9A-4 (b) (12) allows executive sessions involving discussions of "any matters which, by express provision of federal law, state statute or rule of court . . . or which is not considered a public record within the meaning of the freedom of information act" is "rendered confidential."

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

The ninth exception covers "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision" (W. Va. Code §  6-9A-4(9)). That section includes the following proviso: "information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings only until the commercial competition has been finalized and completed." Id.

A second proviso states: "that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session." Furthermore, exception 12 states that an executive session may be held to "discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one chapter twenty-nine-b [§§ 29B-1-1 et seq.] of this code." W. Va. Code § 6-9A-(4) (12).

The West Virginia Freedom of Information Act exempts from disclosure documents which constitute "trade secrets," is defined as including but not limited to:

"any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors."

W. Va. Code § 29B-1-4 (a)(10). Thus, while there is no specific exception allowing closed meetings to consider financial data, trade secrets or proprietary data of private corporations and individuals, the second proviso of subsection (9) seems to require that, if documents relating to such private data or trade secrets are discussed in executive session, the documents need not be disclosed under the first proviso that requires disclosure after "the commercial competition has been finalized and completed." There are not any reported cases construing these provisos.

Finally, in the FOIA case, Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the court held the state tax code — which prohibits "any officer or employee of the state . . . to disclose information concerning the personal affairs of any individual or the business of any single firm or corporation . . . or any particulars set forth" in any tax forms required to be filed with the state tax commissioner — also prohibited officials of a town from disclosing Business & Occupation Tax returns filed with the town. Although the court ruled the tax code's confidentiality provisions did not apply to a list of the names of businesses filing B&O tax returns, it required the list to be "treated as any confidential material and not leave [the circuit judge's] chambers." Id. at 515, 425 S.E. 2d at 186. It is possible that a court interpreting the Open Meetings Act may be persuaded by this decision to hold that meetings discussing such information must be kept confidential.

It should also be noted that a number of other statutes require particular agencies to maintain the confidentiality of information relating to secret processes or secret methods of manufacture or production. See, e.g., the Public Energy Authority (W. Va. Code § 5D-1-21), the Community Infrastructure Authority (W. Va. Code § 31-19-19), and the Water Development Authority (W. Va. Code § 20-5C-21).

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G. Gifts, trusts and honorary degrees

The 1999 amendments to the Open Meetings Act permit executive sessions to "avoid the premature disclosure of an honorary degree, scholarship, prize or similar award." W. Va. Code § 6-9A-4(10).

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H. Grand jury testimony by public employees

The statute authorizes closed sessions for the discussion of "[a]ny official investigation or matters relating to crime prevention or law enforcement." W. Va. Code § 6-9A-4(7). Moreover, Rule 6 of the West Virginia Rules of Criminal Procedure mandates the confidentiality of all grand jury testimony — regardless of whether the witness is a public employee.

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I. Licensing examinations

Subject to the access requirements of the open courts provision of the state constitution, discussed previously, the Open Meetings Act permits public bodies to meet in executive session to "issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision." W. Va. Code § 6-9A-4(4). The person seeking such license may request an open meeting.

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J. Litigation, pending litigation or other attorney-client privileges

The Open Meetings Act does not specifically exempt discussions of pending litigation, or any other attorney-client communications:

(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded.

W. Va. Code § 6-9A-4(b)(11). It is mandatory that non-confidential settlements must be attached to the minutes of the meeting “within in a reasonable time” and that the failure to do so, or to disclose the settlement in a different manner violates the clear language of the sub-section. Capriotti v. Jefferson Cnty. Planning Comm’n, No. 13-1243 (W. Va. Supreme Court, February 26, 2015) (memorandum decision). The Court explained:

This statutory language very simply and explicitly requires that “the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded.” This statutory language does not contemplate the disclosure of settlement terms in any other type of document, be it a meeting agenda, press release, or compilation of papers considered at the disclosure meeting. Rather, the statute expressly requires that the public body “enter [the settlement terms] into its minutes.

Id. (emphasis in original).

West Virginia. Code section 6-9A-4(b)(12) provides:

To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one [§§ 29B-1-1 et seq.], chapter twenty-nine-b of this code.

Exemption 12 would appear to exclude discussions of attorney work product and attorney-client communications at meetings because they fall within exemption 8 of the West Virginia FOIA, as interpreted in Daily Gazette Co. Inc. v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”).

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K. Negotiations and collective bargaining of public employees

There is no exemption for collective bargaining negotiations or discussions. [Public employees in West Virginia are not authorized to engage in collective bargaining].

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1. Any sessions regarding collective bargaining

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

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2. Only those between the public employees and the public body

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

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L. Parole board meetings, or meetings involving parole board decisions

The Open Meetings Act does not specifically authorize the closure of parole board meetings. Although parole board proceedings might arguably fall within W. Va. Code § 6-9A-4(7), it is more likely that the courts would not apply that exception in such circumstances. Moreover, the state Supreme Court narrowed the scope of a similar exemption under the Freedom of Information Act in Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). Further, to the extent that the parole board exercises quasi-judicial functions, its proceedings are subject to the constitutional open courts mandate.

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M. Patients, discussions on individual patients

The Open Meetings Act permits closed sessions to discuss the "physical or mental health of any person, unless such person requests an open meeting." W. Va. Code § 6-9A-4(b)(5). Moreover, a number of specific statutes, discussed in the Freedom of Information Act section of this outline, provide for confidentiality for mental health, hospital and nursing home records concerning individual patients.

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N. Personnel matters

The statute contains an exceptionally broad exemption for discussions of personnel matters, including "[t]he appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of any public officer or employee, or other personnel matters, or for the purpose of conducting a hearing on a complaint against a public officer or employee." W. Va. Code § 6-9A-4(2). Moreover, subsection (2) further provides that an executive session may be held only when a closed session is required "for the purpose of conducting a hearing on a complaint, charge, or grievance against a public officer or employee, unless [he] requests an open meeting." W. Va. Code § 6-9A-4(b) (2) (B). However, under the State Bar and Board of Medicine decisions, it is doubtful whether an adjudicatory hearing on a complaint against a public officer or employee may be conducted in a closed session.

The Act also explicitly prohibits of executive sessions to discuss or consider "general personnel policy issues" and mandates that "final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting." W. Va. Code § 6-9A-4 (b)(2)(B).

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1. Interviews for public employment

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

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2. Disciplinary matters, performance or ethics of public employees

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

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3. Dismissal, considering dismissal of public employees

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

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O. Real estate negotiations

"Matters involving or affecting the purchase, sale or lease of property" may be discussed in executive session. W. Va. Code § 6-9A-4(9).

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P. Security, national and/or state, of buildings, personnel or other

The statute permits closed meetings to discuss "[m]atters of war, threatened attack from a foreign power, civil insurrection or riot," W. Va. Code § 6-9A-4(l), as well as the "development of security personnel or devices." W. Va. Code § 6-9A-4(8).

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Q. Students, discussions on individual students

Another broad exemption under the Act authorizes executive sessions to discuss the "disciplining, suspension or expulsion of any student in any public school or public college or university, unless such student requests an open meeting." W. Va. Code § 6-9A-4(b)(3).

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IV. Procedure for asserting right of access

W. Va. Code § 6-9A-4(b)(6) provides that executive session is appropriate:

To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances.

No court decisions have interpreted or applied this provision.

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A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Open Meetings Act does not provide for any particular expedited procedure for reviewing a request to attend upcoming meetings, although it does authorize the issuance of an injunction to enforce the statute's provisions. W. Va. Code § 6-9A-6. Any citizen of the state may bring an action in circuit court under the statute. Ordinarily no bond will be required unless it appears to the court that the petition was filed solely to harass or delay the governing body. Id.

Alternatively, the right of access to a pending meeting could be asserted through a petition for a writ of mandamus or prohibition, in circuit court or the Supreme Court of Appeals. Such an action would likely be given expedited treatment.

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2. When barred from attending

Section 3 of the Open Meetings Act specifically authorizes the enforcement of the right to attend an open meeting through a civil action filed in the circuit court where the public agency regularly meets. The suit must be brought within 120 days "after the action complained of was taken or the decision complained of was made. W. Va. Code § 6-9A-3. No bond need be posted as a prerequisite to injunctive relief" unless the petition appears to be without merit or made with the sole intent of harassing or delaying or avoiding return by the governing body. Circuit courts are authorized to "compel compliance or enjoin noncompliance" and "annul a decision made in violation of this article." W. Va. Code § 6-9A-6.

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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.

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4. For ruling on future meetings

Courts can grant prospective relief enjoining a governing body of a public agency from proceeding as it has in the past and ordering the public agency to conduct its future meetings in conformity with the Open Meetings Act. W. Va. Code § 6-9A-6.

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5. Other

The Open Meetings Act provides a practical limitation on challenges made to bond issues. If notice of the meeting at which the bond issue was finally considered was given at least ten days prior to the meeting by a Class I legal advertisement in a qualified newspaper having general circulation in the geographical area, then the bond issue will not be rendered void in a challenge by a citizen. W. Va. Code § 6-9A-6.

It should also be noted that the Act provides for a process by which "any governing body or member thereof . . . may seek advice, information from the executive director of the West Virginia ethics commission" or "an advisory opinion from the West Virginia ethics commission committee on open governmental meetings" for purposes of determining whether "an action or proposed action violates the provisions" of the Act. W. Va. Code § 6-9A-11. The West Virginia ethics commission committee on open governmental meetings was created by the 1999 amendments. W. Va. Code § 6-9A-10. All written advisory opinions of the committee are available from Office of the West Virginia Secretary of State (304-558-6000) and online: https://ethics.wv.gov/advisoryopinion/Pages/default.aspx . These opinions may provide additional clarification that may help one determine whether court action is advisable.

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B. How to start

1. Where to ask for ruling

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

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a. Administrative forum

The Open Meetings Act does not provide for an administrative challenge to a public agency's actions. However, it is possible that some agencies may have promulgated regulations that provide such an administrative forum. In that case, provisions regarding time limits for requesting or receiving a ruling or subsequent administrative remedies should also be contained in the agency's regulations. With few exceptions, such regulations must be filed with the office of the Secretary of State and can be obtained by visiting the West Virginia Secretary of State’s Website, https://sos.wv.gov/administrative-law/Pages/Rules.aspx , or from the agency involved.

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b. State attorney general

The Open Meetings Act does not provide for any appeal to the state Attorney General, and that office generally will issue a written opinion only upon the request of state department heads, prosecuting attorneys, or certain other public officials. In the case of an impending egregious violation of the Open Meetings Act, it might be possible to obtain an informal ruling from the Attorney General's office or from the public agency's other legal advisor, thereby averting such action.

West Virginia Code section 6-9A-12 provides:

It is the duty of the attorney general to compile the statutory and case law pertaining to this article and to prepare appropriate summaries and interpretations for the purpose of informing all public officials subject to this article of the requirements of this article. It is the duty of the secretary of state, the clerks of the county commissions, joint clerks of the county commissions and circuit courts, if any, and the city clerks or recorders of the municipalities of the state to provide a copy of the material compiled by the attorney general to all elected public officials within their respective jurisdictions. The clerks or recorders will make the material available to appointed public officials. Likewise, it is their respective duties to provide a copy or summary to any newly appointed or elected person within thirty days of the elected or appointed official taking the oath of office or an appointed person's start of term.

Copies of the Office of Attorney General's compilation of the statutory and case law as well as the required summaries and interpretations should be available upon request by that office. (304-558-2021). Moreover, specific duties are imposed on the Attorney General to assist state and municipal government bodies and officials in achieving compliance with that statute. W. Va. Code § 6-9A-12. The Web site of the Office of the Attorney General provides access to  a summary of the requirements of the Open Meetings Act: https://ago.wv.gov/publicresources/Documents/2017-3-10%20Open%20Meetings%20Booklet%20(Q0236711xD6D48).pdf.

West Virginia Code section 6-9A-11 requires the West Virginia Ethics Commission to rule on requests for advisory opinions regarding interpretations of that statute. Any person subject to the provisions of the Act may request an opinion concerning his or her own conduct. This includes an elected or appointed public official or a public employee of State, county or local government. An individual may inquire as to whether she or he is subject to the Ethics Act. The Commission will not respond to requests for written advice on the propriety of someone else’s conduct. Moreover, the identity of the requester will not be disclosed in the Commission’s written opinion.

Information relating to such advisory opinions are available online at: http://www.ethics.wv.gov/advisoryopinion/Pages/default.aspx. Any governing body or member thereof subject to the law may seek advice and information from the executive director of the West Virginia ethics commission or request in writing an advisory opinion from the West Virginia Ethics Commission Committee on Open Governmental Meetings as to whether an action or proposed action violates the law. Requests for a formal advisory opinion must be submitted to the West Virginia Ethics Commission in writing at 210 Brooks St., Charleston, WV 25301, Phone (304) 558-0664, WV Toll Free 1-866-558-0664, Fax (304) 558-2169. The letter should contain a complete statement of the facts, including your name, your official position, a brief description of the powers of your agency, commission or office and the nature of the issue.

The members of the Commission will review your letter, but their deliberations and written response will not disclose your name or the identity of your specific public entity.

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c. Court

The only statutory procedure for asserting a right of access under the Open Meetings Act is a petition filed in circuit court pursuant to W. Va. Code §§ 6-9A-3 and 6. It is also possible that one may assert a right of access in a common law mandamus or prohibition proceeding.

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2. Applicable time limits

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

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3. Contents of request for ruling

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

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4. How long should you wait for a response

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

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5. Are subsequent or concurrent measures (formal or informal) available?

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

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C. Court review of administrative decision

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

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1. Who may sue?

Any "citizen" of this state may file a petition challenging the action of a public agency under the Open Meetings Act. W. Va. Code §§ 6-9A-3 and 6. Only a person "adversely affected" by a decision may have the decision invalidated solely on the grounds the body gave improper notice of the meeting. W. Va. Code § 6-9A-3.

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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.

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3. Pro se possibility, advisability

It is possible for such a petition to be filed pro se (without the assistance of a lawyer), although the Act does not address this situation in particular. Whether filing a petition pro se is advisable depends upon the complexity of the facts involved and the knowledge of the person filing the petition. The advisability of proceeding without a lawyer is discussed in more detail in the section on the Freedom of Information Act. Suffice it to say that, in most cases, representation by an attorney is to be preferred.

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4. What issues will the court address?

In a judicial proceeding under the Open Meetings Act, the court will address any issue arising under the statute, including a request for an order in a particular pending meeting be open, establishing general rules concerning access to future meetings, and invalidating decisions made at illegal meetings. McComas v. Fayette Cnty. Bd. of Educ., 197 W. Va. 188, 475 S.E.2d 280, 289 (1996).  Additional issues that a court may address would be whether "a governing body or member thereof has acted in good faith reliance upon an advisory opinion of the West Virginia ethics commission committee on open governmental meetings.” If a court finds such reliance provides that it shall constitute an "absolute defense to any civil suit or criminal prosecution." W. Va. Code § 6-9A-11.

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a. Open the meeting

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

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b. Invalidate the decision

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

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c. Order future meetings open

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

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5. Pleading format

There is no established pleading format. The petition should contain a short and plain statement of the facts entitling the petitioner to relief and a description of the relief sought. If injunctive relief is sought, the petition must be verified, although generally no bond would be required. The form of the pleading will depend on the nature of the relief sought. It may be a petition for writ of mandamus, a writ of prohibition, a declaratory judgment action, or a complaint seeking injunctive relief.

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6. Time limit for filing suit

Circuit courts have jurisdiction to enforce the Act only if the action was commenced "within one hundred twenty days after the action complained of was taken or the decision complained of was made." W. Va. Code § 6-9A-6 (1993).

W. Va. Code § 6-9A-6 (i) allows “any adversely affected party” to petition any court of competent jurisdiction to “invalidate any action taken at any meeting for which notice did not comply with the requirements of this section.” Although it is not clear whether the time limit established in Section 6 also applies to actions brought under Section 3, the one hundred twenty-day time limit should not apply if the petitioner was unaware of the agency's actions because of its failure to give the required notice of its meeting. W. Va. Code § 6-9A-3.

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7. What court?

A petition under the Open Meetings Act must be filed in "the circuit court in the county where the public agency regularly meets." W. Va. Code § 6-9A-6. However, in State ex rel. Fairmont State Univ. Bd. of Gov. v. Wilson, the Supreme Court of Appeals held that Kanawha and not Marion County was the proper venue for action against Fairmont State University and the West Virginia Higher Education Policy Commission (HEPC) that was filed by Fairmont State faculty members alleging violations of the Open Meetings Act. 239 W. Va. 870, 806 S.E.2d 794 (2017). The court found the venue to lie in Kanawha County, even though the Open Meetings Act granted jurisdiction to the circuit court in the county where the public agency regularly met.

The court further held, “[w]hen a state agency that is made a defendant in a lawsuit filed outside of Kanawha County fails to object to venue, and thereby waives its objection to venue, the circuit court in which the lawsuit was filed has subject matter jurisdiction to enforce the West Virginia Open Meetings Act under W. Va. Code § 6-9A-6. 239 W. Va. 875, 806 S.E.2d at 799. Fairmont State and the HEPC moved to dismiss the Open Meetings action on the basis that Marion County was an improper venue, thus not waiving their objection to venue. Thus, the Marion County circuit court erred by relying upon section 6-9A-6 to find that Marion County was a proper venue for this lawsuit. The Court emphasized that there the terms “venue” and “jurisdiction” are not synonymous.  239 W. Va. at 875-76, 806 S.E.2d at 799-800.

In extraordinary cases, a petition could be filed in the state Supreme Court, seeking a writ of mandamus or prohibition, but that court generally disfavors such an action, preferring to have litigation originate in the circuit court.

See the preceding section, on the Freedom of Information Act, for a more detailed discussion of the availability of this remedy.

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8. Judicial remedies available

The Open Meetings Act specifically authorizes injunctive relief, as well as the judicial annulment of official actions taken in violation of the statute. W. Va. Code § 6-9A-6.  There is one exception to the court's power to annul any decision made in violation of the statute: no bond issue that was passed or approved by any public agency may be annulled for noncompliance with the Act "if notice of the meeting at which such bond issue was finally considered was given at least ten days prior to such meeting by a Class I legal advertisement" published in a newspaper circulated within the public agency's geographical area. Id.

A court also could enter a declaratory judgment determining the public's access rights in a given situation, as well as any other remedy the court deems appropriate.

W. Va. Code § 6-9A-6 requires that any order which compels compliance or enjoins non-compliance with the provisions of the statute, or which annuls a decision made in violation of the Act, "shall include findings of fact and conclusions of law and shall be recorded in the minutes of the governing body."

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9. Availability of court costs and attorney's fees

The Open Meetings Act permits courts to order a 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).

Conversely if the court denies the relief sought by the plaintiff in an Open Meetings Act suit, West Virginia Code section 6-9A-7(c) permits the court to require the plaintiff to pay the public agency's necessary attorney fees and expenses, if the court finds "that the action was frivolous or commenced with the primary intent of harassing the governing body or any member thereof or, in the absence of good faith, of delaying any meetings or decisions of the governing body." Id.

West Virginia Code section 6-9A-11 provides that when "a governing body or member thereof has acted in good faith reliance upon an advisory opinion of the West Virginia ethics commission committee on open governmental meetings . . . it shall constitute an absolute defense to any civil suit or criminal prosecution." While that section seems to provide that a court may not overturn an advisory opinion of the committee on open governmental meetings, such an interpretation would seem to violate the constitutional separation of powers doctrine by prohibiting judicial review or erroneous interpretations of law by an administrative agency. It is unlikely that such a result was intended by the legislature; it is more likely that the advisory opinion provides an "absolute defense" to that portion of a lawsuit seeking attorneys' fees and costs when a litigant successfully argues that the Open Meetings Act has been violated. Thus, while a court may issue a declaratory judgment or an injunction in a suit brought under the Act, the court would be barred from awarding costs and fees to the successful litigant. No judicial decisions have yet addressed this issue.

Even prior to amendments authorizing the award of attorneys' fees under the Freedom of Information and Open Meetings Acts, the Supreme Court had ruled that a willful disregard of law by an agency in denying access to public documents is sufficient to support an award of attorneys' fees. In Richardson v. Town of Kimball, 176 W. Va. 24, 26, 340 S.E.2d 582, 584 (1986), the court allowed recovery of reasonable attorneys' fees against the town for "deliberate disregard" of the mandatory provisions of the open court records statute. In Daily Gazette v. Withrow, the court held a trial court could award attorney fees to a person prevailing in an action under the Freedom of Information Act if "the evidence before the trial court . . . show[s] bad faith, vexatious, wanton or oppressive conduct on the part of the custodian of the public record(s)." Syl. Pt. 6, 177 W. Va. 110, 112, 350 S.E.2d 738, 740 (1986),

The Withrow Court emphasized that entitlement to attorneys' fees is "ordinarily, a question of fact, which requires development before the trial court." Withrow, 177 W. Va. at 119, 350 S.E.2d at 748. The same rule probably will apply to awards of attorney fees under Section 6 of the Open Meetings Act. It is extremely important, therefore, that the record developed in the circuit court include evidence concerning the agency's conduct. See also, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”).

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10. Fines

Section 7 of the Open Meetings Act provides that a knowing and willful violation of the Open Meetings Act by a member of a public or governmental body constitutes a misdemeanor. The Act provides for a fine of not less than $100 nor more than $500. For second and subsequent offenses a fine of not less than $100 nor more than $1000 may be levied. W. Va. Code § 6-9A-7.

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11. Other penalties

Prior to the 1999 amendments, the Act required that upon conviction of the misdemeanor offense of willfully and knowingly violating the provisions of the Open Meetings Act, a member of a public or governmental body may be imprisoned in the county jail for not more than ten days, in addition to the fine. W. Va. Code § 6-9A-6. That provision was removed from the Act in 1999.

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D. Appealing initial court decisions

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

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1. Appeal routes

The only appeal route from a circuit court decision is to the West Virginia Supreme Court of Appeals.

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2. Time limits for filing appeals

An appeal to the state Supreme Court must be filed within four months after the challenged order was issued by the circuit court.

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3. Contact of interested amici

Any person wishing to file an amicus brief in the West Virginia Supreme Court must file a motion making the request. Generally speaking, the current Supreme Court routinely grants such motions.

The Reporters Committee for Freedom of the Press has a substantial interest in reporters' rights of access to government information and frequently files friend-of-the-court briefs for open meetings issues when they are being considered at the highest appeal level in the state. Other news organizations and associations within the state also may want to support your position by filing amicus briefs, and you should contact such potential supporters as soon as possible.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

The Open Meetings Act does not address the issue of the public's right to comment at public meetings. Section 6-9A-3 provides that "persons who desire to address the governing body may not be required to register more than fifteen minutes prior to [the] time the scheduled meeting is to commence." The statute does not explicitly provide a public right to comment and there are no West Virginia cases addressing this issue. However, as a general matter, when a public agency allows public comment at a meeting, it cannot arbitrarily allow some persons to speak while excluding others similarly situated from so doing.

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B. Must a commenter give notice of intentions to comment?

As noted above, a governing body may require those persons who wish to speak to register no more than fifteen minutes prior to the start of a scheduled meeting.

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C. Can a public body limit comment?

A governing body "may make and enforce reasonable rules for attendance and presentation at any meeting," but this power is limited to "any meeting where there is not enough room for all members of the public who wish to attend." W. Va. Code § 6-9A-3.

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D. How can a participant assert rights to comment?

A participant in a meeting subject to the Act may request to speak before the session begins. If a person is not permitted to comment at a meeting that is subject to the Act, while others are allowed to speak, with no comments by the public are permitted, the governing body may be in violation of the act and subject to a suit for declaratory indoor injunctive relief. W. Va. Code § 6-9A-6.

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E. Are there sanctions for unapproved comment?

If a person is not permitted to comment, or if no comments of members of the public are permitted, the governing body may be in violation of the statute and subject to a suit for declaratory and or injunctive relief. W. Va. Code § 6-9A-6.

The Act provides that "this article does not prohibit the removal from a meeting of any member of the public who is disrupting the meeting to the extent that orderly conduct of the meeting is compromised." Of course, the power to remove a member of the public from a meeting on the basis of “disruptive” conduct may not be exercised arbitrarily.

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Appendix

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

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