Appalachian Mountain Advocates v. W.Va. Univ.
| Decision Date | 18 June 2020 |
| Docket Number | No. 19-0266,19-0266 |
| Court | West Virginia Supreme Court |
| Parties | Appalachian Mountain Advocates, Plaintiff Below, Petitioner v. West Virginia University, Defendant Below, Respondent |
Petitioner Appalachian Mountain Advocates, by counsel Evan D. Johns, appeals the Circuit Court of Monongalia County's February 22, 2019, order granting respondent's motion to dismiss petitioner's complaint for declaratory and injunctive relief. Respondent West Virginia University, by counsel Seth P. Hayes and Zachary H. Warder, filed a response. Petitioner filed a reply.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
On November 9, 2017, the West Virginia Department of Commerce ("Department of Commerce") announced that China Energy Investment Corporation ("China Energy") planned to invest $83.7 billion in shale gas and chemical projects in West Virginia. See Press Release, West Virginia Department of Commerce, China Energy and West Virginia Announce Framework to Invest $83 Billion in Shale Gas and Chemical Manufacturing Projects (Nov. 9, 2017). The then-West Virginia Secretary of Commerce H. Wood Thrasher ("Commerce Secretary Thrasher") and a representative from China Energy signed a Memorandum of Understanding ("MOU"), and Commerce Secretary Thrasher stated that West Virginia sought this foreign investment to "strengthen and diversify" the state's economy. Id. Commerce Secretary Thrasher also detailed that the West Virginia Development Office ("Development Office") had worked "to ensure this unparalleled economic development opportunity was realized for the [S]tate of West Virginia." Id.
In response to parts (1) and (2), respondent stated that it construed those "to be requests for the memorandum of understanding between China Energy Investment Corporation and the West Virginia Department of Commerce and projects that may be identified in such agreement," which it claimed were exempt from disclosure "to the extent that such agreement and documents contain proprietary trade secrets and/or information relating to economic development." With respect to parts (3) and (4), respondent claimed that the requests were too broad and disclosure of the requested documents would be too burdensome, as a preliminary search "yielded more than 15,000 potentially responsive e[-]mails."
On June 21, 2018, petitioner filed a "Complaint for Declaratory and Injunctive Relief" alleging that respondent unlawfully refused to provide public records responsive to a lawful FOIA request. Respondent moved to dismiss the complaint under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure for failure to state a claim upon which relief could be granted.
In moving to dismiss, respondent recounted the circumstances surrounding execution of the MOU, appended a press release documenting the event, and cited precedent permitting courts to take judicial notice of current events of a public nature. Respondent also explained that petitioner directed its FOIA request to it rather than to the Department of Commerce or the Development Office because its Energy Institute employed Dr. Quingyun Sun. In addition to his employment with respondent's Energy Institute, Dr. Sun served as the Governor's Assistant for China Affairs at the Development Office. Although Dr. Sun did not sign the MOU, respondent averred that he was the point of contact for China Energy's investment in West Virginia at the Development Office, which office "orchestrated" the investment and MOU, and that any documents responsive to parts (1) and (2) of petitioner's FOIA request "were obtained through Dr. Sun's work with" the Development Office. Accordingly, respondent argued, documents responsive to parts (1) and (2) were exempt from disclosure under the "economic development exemption" found in West Virginia Code § 5B-2-1, quoted below.
Respondent also argued that parts (3) and (4) of petitioner's FOIA request failed to state with reasonable specificity the information sought and were overly broad and unduly burdensome. As earlier indicated, respondent had identified more than 15,000 potentially responsive e-mails, and claimed that reviewing and, where necessary, redacting or segregating the e-mails would impose an unreasonably high burden and expense.
The circuit court held a hearing on the motion on November 19, 2018, at which it took the motion under advisement and directed the parties to meet and confer in an attempt to narrow the search terms specified in parts (3) and (4) of the request. Several months later, on February 22, 2019, the court granted respondent's motion to dismiss, concluding that "the request seeks documents that are statutorily protected by the economic development [exemption] and the request is unduly burdensome." Petitioner now appeals.
"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. Pt. 1, Barber v. Camden Clark Mem'l Hosp. Corp., 240 W. Va. 663, 815 S.E.2d 474 (2018) (citation omitted).
Petitioner raises four assignments of error on appeal. Petitioner's first two claimed errors relate to the circuit court's finding that the documents requested in parts (1) and (2) of the FOIA request are protected under the economic development exemption.1 Petitioner argues that applicability of the exemption was not properly resolved by a motion to dismiss; rather, because respondent was required to substantiate the applicability of that exemption, the matter was more appropriate for summary judgment. Petitioner also argues that, in any event, the bare assertions in respondent's legal memoranda were insufficient to demonstrate applicability of the exemption, and that the circuit court went "beyond [petitioner's] complaint and judicially noticeable facts" in sustaining respondent's claim.
Under the FOIA, "[e]very person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by section four of this article." W. Va. Code § 29B-1-3(a). One such express exemption from disclosure is "[i]nformation specifically exempted from disclosure by statute[.]" Id., § 29B-1-4(a)(5). West Virginia Code § 5B-2-1, in turn, sets forth the economic development exemption:
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 article one [§§ 29B-1-1 et seq.], chapter twenty-nine-b of this code: Provided, That 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.
The MOU and related documents sought in parts (1) and (2) of petitioner's request fall squarely within this exemption as "documentary material, data or other writing made or received by the [Development Office] or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new . . . business."2 See id.
Petitioner disputes that it pled facts in its complaint sufficient for the circuit court to make such a determination without resorting to matters outside of the complaint. But a circuit court may adjudicate an affirmative defense on a motion to dismiss for failure to state a claim where the facts that establish the defense are ascertainable from, among other things, "matters of which the court may take judicial notice." Forshey v. Jackson, 222 W. Va. 743, 746 n.8, 671 S.E.2d 748, 751 n.8 (2008). In addition, we have previously stated that courts "may, and should, take notice . . . of current events of a public nature."3 State ex rel. City of Charleston v. Sims, 132 W. Va. 826, 847, 54 S.E.2d 729, 741 (1949). While courts will not take judicial notice of every current event, "we are not required to close our eyes to things which are in plain view, especially in matters which concern the government of the State, of which we are a part." Id. Though the parties submit that the circuit court did not, in fact, take judicial...
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