FOREWORD

There have been several important court decisions interpreting West Virginia's Freedom of Information Act (FOIA) since the Fifth Edition of this guide was published in 2006 and three exemptions to the Act added by amendment. 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 an open 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 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. Attempts to revise the state's FOIA and Open Meetings Acts during the 1996 and 1997 legislative session, however, proved too controversial. However, 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 W.Va. Code §  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 have 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 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. Development 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). But see, State v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003), where the court  held that FOIA could not be used by state prison inmates to obtain court records for the purpose of filing habeas corpus petitions and Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009), in which the court held that only the content and not the context of emails sent by a public body through a government operated internet server could be considered in determining whether such communications were public records under the Act.

Similarly, in  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. Board of Education of Fayette County, 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 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;) Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009) (court held that only the content and not the context of emails sent by a public body through a government operated internet server could be considered in determining whether such communications were public records under the Act).

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 Association 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 "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 the FOIA. In Richardson v. Town of Kimball, 176 W. Va. 24, 340 S.E.2d 582 (1986), for example, the court ruled a statute which mandates most court records be open to the public creates an absolute right of access to those records. In Maclay v Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000), 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.

In some of its most 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. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986); Thompson v. W. Va. Board 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 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 generally in  attempts to obtain  information regarding the functions of government.

Open Meetings Act.

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., sometimes 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.

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 decsionmaking.

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) & 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.

The court in Appalachian Power Co. v. Public Service Commission, 162 W. Va. 839, 253 S.E.2d 377 (1979), 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.

Id. at 385 n.6. 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 County Board Of Education, 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. Board of Education, 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).

Other than the statement of purpose,  there is no legislative history available recording what initially prompted the Legislature to enact  the Open Meetings Act in 1975. The statute has been amended four times — in 1978, 1987, 1993 and 1999 — 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 whatsoever. 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.)

Although the Secretary of State has no enforcement powers under the Open Meetings Act, under some administrations the office has   strongly supported  of 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 and in the case of regulations, also in the Code of State Regulations. The Register is a weekly publication that is available by subscription. The Code of State Regulations represents the codification of all final state agency rules and regulations. State agency open meeting regulations must be published in the Code of State Regulations. This information may be accessed via the Secretary’s website (http://www.sos.wv.gov/administrative-law/register/Pages/openmeetings.aspx) that

provides information on all rules promulgated by West Virginia State agencies and incorporated into the Code of State Regulations as well as rules proposed for public comment. Final and proposed rules may be located through the Secretary's homepage found at: www.wvsos.com/main.htm.

State agency notices of meetings, as well as proposed and final regulations, must be filed with the Secretary of State's office Notices of meetings 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) that lists agencies that have failed to comply. (http://blogs.wvgazette.com/watchdog/ ). A list of current, future or historical meetings may be found at http://apps.sos.wv.gov/meeting-notices/default.aspx

That site also contains a general discussion of when prior public notice must be given as required by the Open Meetings Law: www.wvsos.com/adlaw/register/aboutmeetingnotices.htm. A telephone inquiry to the Secretary of State's office (304/558-6000) should reveal whether a particular agency has 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.

In the 1990s, the Office of the Attorney General of West Virginia (304/558-2021) also emerged as a leading supporter of the public's right of access to governmental information. The Attorney General has invited inquiries from all state boards and commissions concerning the state's FOIA and for advice or assistance regarding compliance with these acts or in responding to FOIA requests. Moreover, the 1999 amendments to the Open Meetings Act impose specific duties upon 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 an excellent summary of the requirements of the Open Meetings Act: http://www.wvago.gov/pdf/OpenMeetingsHandbook2006.pdf

The 1999 amendments to the Open Meeting Law §  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. The identity of the requester will not be disclosed in the Commission’s written opinion.

Information relating to such advisory opinions is 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.

   General information concerning the Open Meetings Act is available on the Ethics Commission website: http://www.ethics.wv.gov/openmeetings/Pages/default.aspx

The executive director of the Ethics Commission may render oral advice and information upon request. 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. The Ethics Commission’s advisory opinions are available at: http://www.ethics.wv.gov/advisoryopinion/Pages/OpenMeetingsOpinions.aspx . The same section provides that 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. Section 6-9A-11 does not appear to provide for members of the public to request such an advisory opinion.

(c) The committee and commission may take appropriate action to protect from disclosure information which is properly shielded by an exception provided for in section four [§  6-9A-4] of this article. (1999, c. 208.)

This edition of the West Virginia Open Government Guide expands upon and amends earlier initial editions the work of authored by attorneys Rudy diTrapano, D.L. Hamilton, and Rebecca Baitty; their excellent work is acknowledged with appreciation.