Child Protection Group v. Cline, 17296

• Court: Supreme Court of West Virginia
• Writing for the Court: BROTHERTON
• Citation: 177 W.Va. 29,350 S.E.2d 541
• Parties: , 35 Ed. Law Rep. 1260 CHILD PROTECTION GROUP, an unincorporated association; Goldie Goodrich, in her capacity as president of the Child Protection Group; Veronica McCune, in her capacity as vice president of the Child Protection Group; Carolyn Miller, in her capacity as secretary of the Child Protection Group; and Rita Cottrill, in her capacity as treasurer of the Child Protection Group, v. Danny O. CLINE, in his capacity as Judge in the 14th Judicial Circuit of the State of West Virginia; the Board of Education of Gilmer County, West Virginia, a statutory corporation of the State of West Virginia; Robert H. Hardman, in his capacity as superintendent of the Gilmer County Board of Education and in his capacity as secretary and custodian of the public records for the Gilmer County Board of Education; and Jeanne Kennedy, in her capacity as president of the Gilmer County Board of Education.
• Docket Number: No. 17296,17296
• Decision Date: 12 November 1986

Page 541

350 S.E.2d 541 177 W.Va. 29, 35 Ed. Law Rep. 1260 CHILD PROTECTION GROUP, an unincorporated association;
Goldie Goodrich, in her capacity as president of the Child
Protection Group; Veronica McCune, in her capacity as vice
president of the Child Protection Group; Carolyn Miller, in
her capacity as secretary of the Child Protection Group;
and Rita Cottrill, in her capacity as treasurer of the Child
Protection Group,
v.
Danny O. CLINE, in his capacity as Judge in the 14th
Judicial Circuit of the State of West Virginia; the Board
of Education of Gilmer County, West Virginia, a statutory
corporation of the State of West Virginia; Robert H.
Hardman, in his capacity as superintendent of the Gilmer
County Board of Education and in his capacity as secretary
and custodian of the public records for the Gilmer County
Board of Education; and Jeanne Kennedy, in her capacity as
president of the Gilmer County Board of Education. No. 17296. Supreme Court of Appeals of
West Virginia. Submitted Sept. 9, 1986.
Decided Nov. 12, 1986.

Page 542

Syllabus by the Court

1. "Under W.Va.Code 29B-1-4(2) [1977], a court must balance or weigh the individual's right of privacy against the public's right to know." Syl. pt. 7, Hechler v. Casey, --- W.Va. ---, 333 S.E.2d 799 (1985).

2. In deciding whether the public disclosure of information of a personal nature under W.Va.Code § 29B-1-4(2) (1980) would constitute an unreasonable invasion of privacy, this Court will look to five factors:

1. Whether disclosure would result in a substantial invasion of privacy and, if so, how serious.

2. The extent or value of the public interest, and the purpose or object of the individuals seeking disclosure.

3. Whether the information is available from other sources.

[177 W.Va. 31] 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.

Michael Farber, Sutton, for appellants.

No appearance for appellees.

BROTHERTON, Justice:

This is an original action in mandamus by the petitioners, Child Protection Group, an unincorporated association made up of parents whose children ride a school bus driven by Garland Roberts, against the respondents, Gilmer County Board of Education. The petitioners are seeking the release of the medical records of Garland Roberts, which are in the possession of the school board, under the West Virginia Freedom of Information Act, W.Va.Code §§ 29B-1-1 to 6 (1980). We hold for the petitioners and grant a restricted access to the records.

This action is a result of an incident which occurred during the course of a school bus run in January of 1986. According to the eyewitness accounts of the children on the bus, Garland Roberts unexpectedly stopped the vehicle while en route with a full load of children, whose ages ranged from six to eighteen, and began to lecture the children on religion. For approximately fifteen minutes, Mr. Roberts made statements such as: "the world was coming to an end;" "the Easter bunny was Satan;" and that the children were "bound for hell." Also of concern to the petitioners was that before the children had boarded the bus that day, Mr. Roberts was observed "fooling around" with the brakes on the school bus. Mr. Roberts also assured the children that in the event of an emergency he would "protect them from any harm."

As a result of the above-related events, Mr. Roberts was immediately suspended from his job by the Board of Education and was advised to seek medical treatment.

In May of 1986, Mr. Roberts was reinstated by the Board of Education to his former position. At that time, the Superintendent of Gilmer County Schools sent a letter to the parents of school children assuring that Mr. Roberts was capable of providing a safe means of transportation for the students. Also included in the letter were quotes from various physicians regarding Mr. Roberts' ability to return to work. The quotes were somewhat ambiguous and less than totally reassuring to the parents. For example, one quote stated: "As long as Mr. Roberts complies with the recommended medical regimen, it is not likely that his disorder will interfere with his work performance." With language such as "[a]s long as" and "not likely," it is easy to see the petitioning parents' concern.

The petitioners, acting as a newly formed parents group, refused to place their children on the school bus operated by Mr. Roberts.

On June 11, 1986, after repeated attempts to gain additional information from the Board, the petitioners initiated this proceeding under the West Virginia Freedom of Information Act for the stated purpose

Page 543

of confirming the nature of Mr. Roberts' mental problems.

I.

The Freedom of Information Act, Chapter 29B of the West Virginia Code, provides for the release of all public records unless the case falls into an exception. The clause which would control this case is W.Va.Code § 29B-1-4(2) (1980):

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....

As the last sentence shows, a court, in deciding whether to release an individual's medical records, must balance the public's need to know against the individual's right [177 W.Va. 32] to privacy. ¹ See syl. pt. 7, Hechler v. Casey, --- W.Va. ---, 333 S.E.2d 799 (1985).

II.

In deciding whether the public disclosure of information of a personal nature would constitute an unreasonable invasion of privacy, this Court now adopts a five factor test:

1. Whether disclosure would result in a substantial invasion of privacy and, if so, how serious? See, e.g., Tennessean Newspapers, Inc. v. Levi, 403 F.Supp. 1318, 1320-21 (M.D.Tenn.1975).

2. The extent or value of the public interest, and the purpose or object of the individuals seeking disclosure. See, e.g., Campbell v. United States Civil Service Comm'n, 539 F.2d 58, 61 (10th Cir.1976).

3. Whether the information is available from other sources. See e.g., Wooster Republican Printing Co. v. City of Wooster, 10 O.O.3d 312, 56 Ohio St.2d 126, 135, 383 N.E.2d 124, 129 (1978).

4. Whether the information was given with an expectation of confidentiality. See e.g., Judiciary Committee v. Freedom of Information Commission, 39 Conn.Sup. 176, 473 A.2d 1248, 1254 (1983).

5. Whether it is possible to mould relief so as to limit the invasion of individual privacy. See generally Rural Housing Alliance v. United States Dept. of Agriculture, 498 F.2d 73, 78 (D.C. Cir.1974).

The importance of these five factors requires a deeper understanding than is provided by their simple enunciation. We, therefore, expound on each factor individually.

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 which affects or belongs to private individuals as distinct from the public generally. See Black's Law Dictionary 1076 (5th ed. 1979). The invasion into the private information must be substantial. Information of a non-intimate or public nature may be disclosed. See generally, Hechler v. Casey, --- W.Va. ---, 333 S.E.2d 799, 810 (1985).

If there is a substantial invasion of privacy involved, the court must measure the seriousness of the invasion. The right of privacy is relative to the customs of the time and place, and is determined by the norm of the ordinary man. See Restatement (Second) of Torts § 652D, Comment C (1977). Therefore, weighing 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. Unfortunately, courts have found this to be a particularly difficult test which has eluded attempts to be nailed down specifically. Courts have tried lists of "private" matters and other tests to attempt to separate the

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