Daily Gazette Co., Inc. v. Withrow
| Decision Date | 20 November 1986 |
| Docket Number | No. 16642,16642 |
| Citation | 350 S.E.2d 738,177 W.Va. 110 |
| Parties | , 14 Media L. Rep. 1447 The DAILY GAZETTE COMPANY, INC. a West Virginia Corporation v. Carl WITHROW, as Sheriff of Kanawha County, West Virginia. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "The disclosure provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended, are to be liberally construed, ... W.Va.Code, 29B-1-1 [1977]." Syl. pt. 4 (in part), Hechler v. Casey, --- W.Va. ----, 333 S.E.2d 799 (1985).
2. A release or other litigation settlement document in which one of the parties is a public body, involving an act or omission of the public body in the public body's official capacity, is a "public record" within the meaning of a freedom of information statute, such as W.Va.Code, 29B-1-2(4), as amended, defining a "public record" as a writing which contains information "relating to the conduct of the public's business[.]"
3. Lack 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), as amended, which defines a "public record" as a writing "retained by a public body." The writing is "retained" if it is subject to the control of the public body.
4. Assurances of confidentiality do not justify withholding public information from the public; such assurances by their own force do not transform a public record into a private record for the purpose of the State's Freedom of Information Act.
5. A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity.
6. For a person prevailing in an action under the State's Freedom of Information Act to recover reasonable attorney's fees, the evidence before the trial court must show bad faith, vexatious, wanton or oppressive conduct on the part of the custodian of the public record(s).
Rudolph L. Di Trapano, Rebecca A. Baitty, Charleston, for appellant.
Arthur T. Ciccarello, Charleston, for Withrow.
George Sharp, Kay, Casto & Chaney, Charleston, for bonding company.
This action is before this Court upon appeal by the appellant, The Daily Gazette Company, Inc., a West Virginia corporation, from two final orders entered by the Circuit Court of Kanawha County, West Virginia (the trial court). The first order denied the appellant's request for certain injunctive relief against the appellee, Carl Withrow, as Sheriff of Kanawha County, under the provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 [1977], et seq. The trial court's second order denied certain declaratory relief. This Court has before us the petition for appeal, all matters of record and the brief and oral argument of counsel for the appellant.
A former deputy sheriff of Kanawha County, West Virginia, brought a federal civil rights action against the appellee herein, Carl Withrow, then Sheriff of Kanawha County. 1 The complaint in the civil rights action alleged that Withrow, acting "individually" and as sheriff, had wrongfully discharged the former deputy sheriff from his job. The allegation was that Withrow had discharged the deputy to prevent him "from [pursuing] his official duties in the investigation of a crime and to punish and discourage [him] in the exercise of his right of free speech as guaranteed him under the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983."
This federal civil rights action and Withrow's counterclaim were dismissed as the result of a settlement between the parties. In its dismissal order the United States District Court for the Southern District of West Virginia noted that the parties and their counsel had agreed not to disclose the terms of the settlement. By an earlier order that court had determined that the file of the action was to be unsealed, with some exceptions not relevant to the present case before this Court.
The Daily Gazette Company ("the Gazette"), the appellant herein, requested in writing, pursuant to the provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 [1977], et seq., that Withrow, as custodian of the records in the sheriff's office, make copies of, or allow inspection and copying of, any documents reflecting the terms of the settlement discussed above, as well as copies of any documents reflecting the terms of an earlier "confidential" settlement of a federal civil rights action against two sheriff's deputies employed by Withrow, involving a claim that those two deputies had beaten a county jail inmate.
Withrow responded to this request by a letter stating that there were no documents in his office relating to any lawsuit settlements from 1981 (when he took office) to the present. The Gazette thereafter requested in writing that the sheriff obtain copies of any such lawsuit settlement documents from the insurer, attorney or any other person having possession of the same.
By letter from counsel, Withrow refused to comply with the Gazette's second request. Withrow's counsel was of the opinion that the lawsuit settlement documents were not required by law to be maintained in the sheriff's records where no public funds had been expended as a result of the settlements. He also was of the opinion that such documents were not "public records" under this State's Freedom of Information Act where the documents were prepared by counsel for the sheriff or his deputies in their individual capacities.
The Gazette, pursuant to W.Va.Code, 29B-1-5 [1977], brought an action against Withrow, as custodian of the sheriff's records, requesting the following relief:
(1) an order enjoining the sheriff from withholding the requested records and ordering production of the same;
(2) a declaratory judgment that the sheriff is required at common law to maintain such records in his office for public inspection; and
(3) recovery of costs and reasonable attorney's fees.
The trial court conducted an evidentiary hearing. At the hearing the following facts were stipulated:
(1) in the federal civil rights action, the sheriff had been represented by two attorneys. One attorney had been employed by the sheriff "as an individual" and had not received any public funds for his legal services. Another attorney had been retained by the county's liability insurer to represent the sheriff "in his official capacity as Sheriff." For reasons not expressed, only the attorney representing the sheriff "as an individual" signed the sheriff's answer and counterclaim in the civil rights action;
(2) the settlement agreement was "proposed" by the attorney for the county's liability insurer "and also to some extent" by the attorney representing the sheriff individually; the agreement released the sheriff in his individual capacity and official capacity, and released the county's insurer from all claims by the plaintiff in the civil rights action;
(3) on the date of the hearing before the trial court, the written release was located in the office of the attorney representing the sheriff in his individual capacity;
(4) the sheriff did not retain in his own office any documents relating to any lawsuit settlement documents;
(5) the County Commission of Kanawha County had used public funds for payment of premiums for liability insurance which covered the sheriff as well as other county officials.
By one order, the trial court denied the Gazette's request for injunctive relief. The court ruled that the release in the federal civil rights action against the sheriff had been "prepared by counsel retained by [Withrow] to represent him as an individual upon claims asserted against him in his individual capacity[,]" and was, therefore, "not a 'public document' which was 'prepared, owned and retained by a public body' within the meaning of W.Va.Code, 29B-1-2(4)." 2 The court also ruled that the release in the federal civil rights action against the two sheriff's deputies had been prepared by counsel for the county's insurer and was never in the possession of the sheriff's office; accordingly, the release in that case was held not to be a "public document" within the meaning of W.Va.Code, 29B-1-2(4) [1977].
By a subsequent order, the trial court denied, without explanation on the record, the Gazette's request for a declaratory judgment recognizing a common law duty of the sheriff to maintain in his office a record of the settlement terms of any lawsuits brought against the sheriff or his employees in their official capacity, so that those documents would be available for public inspection and copying.
The primary question in this case is whether releases or other litigation settlement documents in the possession of a public body's attorney or the public body's insurer's attorney are "public records" within the meaning of W.Va.Code, 29B-1-2(4) [1977] when such documents relate to the conduct of the public's business. The resolution of this question requires interpretation of this statutory provision, which is one of the disclosure, not exemption, provisions of this State's Freedom of Information Act [hereinafter "the State FOIA"]. In syllabus point 4 of Hechler v. Casey, --- W.Va. ----, 333 S.E.2d 799 (1985), this Court held that "[t]he disclosure provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended, are to be liberally construed, ... W.Va.Code, 29B-1-1 [1977]." 3
W.Va.Code, 29B-1-2(4) [1977] 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,"...
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