Associated Press v. Canterbury

• Decision Date: 12 November 2009
• Docket Number: No. 34768.,34768.
• Citation: 688 S.E.2d 317
• Court: West Virginia Supreme Court
• Parties: The ASSOCIATED PRESS, Plaintiff Below, Appellant, v. Steven D. CANTERBURY, Administrative Director of the West Virginia Supreme Court of Appeals, Defendant Below, Appellee.

688 S.E.2d 317

The ASSOCIATED PRESS, Plaintiff Below, Appellant, v. Steven D. CANTERBURY, Administrative Director of the West Virginia Supreme Court of Appeals, Defendant Below, Appellee.

No. 34768.

Supreme Court of Appeals of West Virginia.

Submitted October 7, 2009.

Decided November 12, 2009.

Concurring and Dissenting Opinion of Justice Workman November 18, 2009.

Syllabus by the Court

1. In a proceeding seeking disclosure of public records under the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et seq., a trial court may sua sponte order the production of the records withheld and hold an in camera review of the records in order to decide whether any of the records are subject to disclosure under the Act. W. Va.Code § 29B-1-5(2) (1977) (Repl. Vol. 2007).

2. The definition of a "writing" contained in W. Va.Code § 29B-1-2(5) (1977) (Repl. Vol. 2007) of the West Virginia Freedom of Information Act includes an e-mail communication.

3. A "public record" under the West Virginia Freedom of Information Act (FOIA) is defined as "includ[ing] 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) (1977) (Repl. Vol. 2007). Under the clear language of the "public record" definition, a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public's business, is not a public record subject to disclosure under FOIA.

4. A trial court's determination of whether personal e-mail communication by a public official or employee is a public record, subject to disclosure under the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et seq. is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record.

Rudolph L. DiTrapano, Sean P. McGinley, DiTrapano, Barrett & DiPiero, Charleston, WV, Patrick C. McGinley, Law Office of Patrick C. McGinley, Morgantown, WV, for Appellant.

Carte P. Goodwin, Goodwin & Goodwin, Charleston, WV, for Amicus, WV Judicial Assoc.

Terris S. Baur, ACLU of West Virginia Foundation, Charleston, WV, for the Amici, The Reporters Committee for Freedom of the Press, ACLU of WV, Assoc. of Capitol Reports & Editors, The Radio & Television News Directors Assoc., The Society of Professional Journalists and WV Press Assoc.

Ancil G. Ramey, William D. Wilmoth, Steptoe & Johnson, Charleston & Robert P. Fitzsimmons, Fitzsimmons Law Offices, Wheeling, WV, Daniel J. Guida, Law Office of Daniel J. Guida, Weirton, WV, for Appellee.

DAVIS, Justice:

The Associated Press, plaintiff below (hereinafter referred to as "the AP"), appeals from an order of the Circuit Court of Kanawha County denying part of the AP's request for injunctive relief against Steven D. Canterbury, Administrative Director of the West Virginia Supreme Court of Appeals, defendant below (hereinafter referred to as "Mr. Canterbury"). Specifically, the AP alleges the circuit court committed error in ordering Mr. Canterbury to turn over only five of thirteen e-mail communications it sought under the West Virginia Freedom of Information Act (hereinafter referred to as "FOIA").¹ Mr. Canterbury has filed a cross-appeal alleging that the circuit court committed error in finding that five of the thirteen e-mails were subject to disclosure under FOIA. After a thorough review of the briefs and record, and having listened to the arguments of the parties, we affirm that part of the circuit court's order which denied disclosure of eight of the e-mails. Additionally, we reverse that part of the order which required disclosure of the remaining five e-mails.² Finally, we remand this case to the trial court for further disposition consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of this case are rather simple and straightforward. On February 29, 2008, the AP submitted a FOIA request to Mr. Canterbury.³ The FOIA request sought all records reflecting communication between Justice Elliot E. Maynard⁴ and Donald L. Blankenship⁵ during the period beginning January 1, 2006, through February 2008.⁶ Mr. Canterbury denied the AP's request on the ground that any such communication was not subject to disclosure under FOIA. Thereafter, on April 29, 2008, the AP filed a complaint in circuit court seeking declaratory and injunctive relief.⁷

In June of 2008, the circuit court held an evidentiary hearing. During the hearing, Mr. Canterbury testified to the existence of the electronic mail (hereinafter referred to as "e-mail") communications that covered the period under the AP's FOIA request. The circuit court ordered the e-mails be produced for an in camera review. Subsequent to its in camera review of the e-mails, the circuit court entered a final order on September 16, 2008. In that order, the circuit court found that five of the e-mails involved "Justice Maynard's campaign for re-election [and] are public records subject to disclosure under FOIA." However, the order further held "that the remaining [eight] e-mail communications are not public records as defined by FOIA. In no way do these [eight] e-mails contain information related to the `affairs of government', Justice Maynard's `official acts' as a state officer, or the conduct of the public's business." Accordingly, the circuit court ordered Mr. Canterbury to disclose to the AP only the five e-mails which involved Justice Maynard's campaign for re-election. From this order, the parties filed their appeals.

II. STANDARD OF REVIEW

In the case sub judice, we are called upon to review a final order by the circuit court that granted, in part, and denied, in part, the AP's request for injunctive relief.⁸ As a general matter we have recognized that,

[u]nless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.

Syl. pt. 1, G Corp, Inc. v. MackJo, Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995) (quoting Syl. pt. 11, Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956)). More specifically, we have held that,

[i]n reviewing the exceptions to the findings of fact and conclusions of law supporting the granting [or denial] of [an] . . . injunction, we will apply a three-pronged deferential standard of review. We review the final order granting [or denying] the . . . injunction and the ultimate disposition under an abuse of discretion standard, we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo.

Syl. pt. 1, State v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792 (1996). Accord Weaver v. Ritchie, 197 W.Va. 690, 693, 478 S.E.2d 363, 366 (1996). With these standards in mind, we turn to the merits of this case.

III. DISCUSSION

This case presents the issue of whether thirteen e-mail communications sent by Justice Maynard to Mr. Blankenship are subject to disclosure as public records under FOIA.⁹ In addition to this substantive issue, this case presents an important procedural issue under FOIA concerning the circuit court's in camera review of the thirteen e-mails. Insofar as both the substantive and procedural issues require an examination of specific language under FOIA, we must provide the framework for our statutory analysis.

This Court has long held that "`[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.'" Huffman v. Goals Coal Co., 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)). On the other hand, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). Additionally, as a general matter, "the words of a statute are to be given their ordinary and familiar significance and meaning[.]" Amick v. C & T Dev. Co., Inc., 187 W.Va. 115, 118, 416 S.E.2d 73, 76 (1992). "It is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).

A. In Camera Review Under FOIA

As we indicated earlier in this opinion, the trial court required Mr. Canterbury to produce the thirteen e-mails for an in camera review. This Court has not previously addressed the issue of producing documents for an in camera review in a FOIA proceeding. Prior FOIA decisions of this Court approved of requiring a government entity to produce a Vaughn index:

When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va.Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must produce a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). 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...