Daily Gazette Co., Inc. v. West Virginia Development Office

• Decision Date: 13 December 1996
• Docket Number: No. 23560,23560
• Citation: 198 W.Va. 563,482 S.E.2d 180
• Court: West Virginia Supreme Court
• Parties: , 25 Media L. Rep. 1961 The DAILY GAZETTE COMPANY, INC., a West Virginia Corporation, Plaintiff Below, Appellant, v. The WEST VIRGINIA DEVELOPMENT OFFICE and its Director, Thomas C. Burns, Defendants Below, Appellees.

Page 180

482 S.E.2d 180

198 W.Va. 563, 25 Media L. Rep. 1961

The DAILY GAZETTE COMPANY, INC., a West Virginia Corporation, Plaintiff Below, Appellant, v. The WEST VIRGINIA DEVELOPMENT OFFICE and its Director Thomas C. Burns, Defendants Below, Appellees.

No. 23560.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 1996.

Decided Dec. 13, 1996.

Syllabus by the Court

1. " 'The disclosure provision of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended, are to be liberally construed, and the exemptions to such Act are to be strictly construed. W.Va.Code, 29B-1-1.' Syl. Pt. 4, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985)." Syl. pt. 5, Queen v. West Virginia University Hospitals, Inc., 179 W.Va. 95, 365 S.E.2d 375 (1987).

2. "The party claiming exemption from the general disclosure requirement under West Virginia Code § 29B-1-4 has the burden of showing the express applicability of such exemption to the material requested." Syl. pt. 7, Queen v. West Virginia University Hospitals, Inc., 179 W.Va. 95, 365 S.E.2d 375 (1987).

3. When a public body asserts that certain documents in its possession are exempt from disclosure under W. Va.Code, 29B-1-4(8) [1977], on the ground that those documents are "internal memoranda or letters received or prepared by any public body," 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 reasons why W. Va.Code, 29B-1-4(8) [1977] 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 privilege claimed. The public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt.

4. W.Va.Code, 29B-1-4(8) [1977], which exempts from disclosure "internal memoranda or letters received or prepared by any public body" specifically exempts from disclosure only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body's deliberative, decision-making process; written advice, opinions and recommendations from one public body to another; and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body's deliberative, decision-making process. W. Va.Code, 29B-1-4(8) [1977] does not exempt from disclosure written communications between a public body and private persons or entities where such communications do not consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body's deliberative, decision-making process.

Suzanne M. Weise, Patrick C. McGinley, Morgantown, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Donald L. Darling, Senior Deputy Attorney General, Charleston, for Appellees.

McHUGH, Chief Justice:

The Daily Gazette Company, Inc. (hereinafter "Gazette") instituted this action under the West Virginia Freedom of Information Act, W. Va.Code, 29B-1-1, et seq., to obtain certain documents in the possession of the West Virginia Development Office. Though the Circuit Court of Kanawha County released certain documents to the Gazette in their entirety, it also withheld certain other documents, either in whole or in part, pursuant to W. Va.Code, 29B-1-4(8) [1977], which exempts from public disclosure "[i]nternal memoranda or letters received or prepared by any public body."

This Court ¹ has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons discussed below, this case is remanded with directions.

I.

By letters dated February 9, 1995, March 8, 1995 and March 24, 1995, the Gazette, the appellant herein, made requests of the appellees, the West Virginia Development Office and its director, Thomas C. Burns (hereinafter collectively referred to as "Development Office"), under the West Virginia Freedom of Information Act, W.Va.Code, 29B-1-1, et seq. (hereinafter "WVFOIA"), seeking access to information regarding a pulp mill proposed for construction in Mason County, West Virginia, by Apple Grove Pulp & Paper Co. and its parent company, Parsons and Whittemore. In response to the Gazette's WVFOIA requests, the Development Office released some documents but withheld others, on the ground that the withheld documents were "[i]nternal memoranda or letters received or prepared by any public body[,]" W. Va.Code, 29B-1-4(8) [1977], and were, therefore, specifically exempt from disclosure under WVFOIA.

In May of 1995, the Gazette filed a complaint in Kanawha County Circuit Court in an effort to, inter alia, compel disclosure of the withheld documents. See W. Va.Code, 29B-1-3(4) [1992] and 29B-1-5 [1977]. Following a July 7, 1995 hearing on the matter, the circuit court entered an order on July 12, 1995 which, inter alia, indicated that the Development Office had failed to meet its burden of showing that the withheld documents were, in fact, exempt under W. Va.Code, 29B-1-4(8) [1977]. See W. Va.Code, 29B-1-5(2) [1977]("[T]he burden is on the public body to sustain its action." Id., in relevant part).

Also in its July 12, 1995 order, the circuit court, notwithstanding its finding that the Development Office had failed to show that the withheld documents were exempt from disclosure under W. Va.Code, 29B-1-4(8) [1977], appointed a special master to review the withheld documents in camera and to determine whether they were exempt from disclosure under W. Va.Code, 29B-1-4(8) [1977]. Finally, the July 12, 1995 order directed the Development Office to prepare a Vaughn index, ² which was to include the general description and date of each withheld document. In addition, the Development Office was "invited" to submit detailed affidavits containing specific reasons as to why each withheld document was claimed exempt. ³

The Vaughn index subsequently submitted by the Development Office revealed that the Development Office was withholding from disclosure approximately 155 documents. ⁴ An affidavit dated July 24, 1995 and submitted under seal by the Development Office set forth the reasons the documents were withheld. ⁵

In his report filed September 11, 1995, the special master, previously appointed by the circuit court to review each of the withheld documents, recommended disclosure of certain documents in their entirety, disclosure of certain other documents after specific information therein, deemed exempt from disclosure under W. Va.Code, 29B-1-4(8) [1977], was redacted, and the withholding of certain documents in their entirety, also pursuant to W. Va.Code, 29B-1-4(8) [1977]. The circuit court subsequently adopted the special master's report. ⁶

On October 5, 1995, the circuit court conducted another hearing, during which the Development Office was provided the opportunity to show that the withheld documents were exempt from disclosure under W. Va.Code, 29B-1-4(8) [1977]. On November 21, 1995, the circuit court issued a memorandum letter opinion indicating, inter alia, that "[c]ertain of these documents are entitled to partial exemption under [WVFOIA], after redaction, and certain of these must be disclosed to the [Gazette]. Copies of the documents in each category are retained in [the circuit court's] office for inspection by [the Development Office]." The circuit court's opinion letter also set a final hearing for December 13, 1995 and ordered the Development Office's July 24, 1995 affidavit unsealed "to enable [the Gazette] to participate in the adversarial process[.]" ⁷

In its final order entered December 14, 1995, ⁸ the circuit court ordered approximately 86 of the documents to be disclosed to the Gazette in their entirety; approximately 42 of the documents to be disclosed after exempt portions thereof were redacted; and approximately 25 documents to be completely withheld from disclosure, as such documents were exempt under W. Va.Code, 29B-1-4(8) [1977].

The Development Office subsequently made an oral motion seeking a thirty-day stay of the circuit court's December 14, 1995 order so that it could file a petition for appeal with this Court. The circuit court denied the Development Office's motion but, over the Gazette's objection, stayed its order until December 22, 1995.

The Development Office immediately filed with this Court an application for stay of the circuit court's order to allow it reasonable time to file a petition for appeal. This Court granted a stay of the circuit court's order, but only until January 3, 1996, pending a hearing by the circuit court regarding whether a further stay should be granted or denied. This Court ordered the circuit court "to make findings on the issue of balancing the benefit of the information to the public as opposed to protecting the government's interest in keeping the documents which are the subject of the proceedings below confidential."

A hearing was conducted on December 28, 1995 and the circuit court's ruling was rendered orally, on the record, on December 29, 1995. The circuit court ultimately concluded that release of the documents previously ordered disclosed under WVFOIA would not harm either the Development Office or the State of West Virginia. ⁹ By order of January 11, 1996, this Court denied the Development Office's motion for an extension of the stay of the circuit court's December 14, 1995 order.

The Gazette appeals the December 14, 1995 order only insofar as it allows the Development Office to withhold portions of seven enumerated documents and ten documents in their entirety, under W.Va.Code, 29B-1-4(8) [1977]. ¹⁰

II.

The Gazette seeks access,...