Daily Gazette Co. v. DEVELOPMENT OFFICE, No. 25437.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice
Citation521 S.E.2d 543,206 W.Va. 51
PartiesThe DAILY GAZETTE COMPANY, INC., a West Virginia Corporation, Plaintiff Below, Appellee, v. The WEST VIRGINIA DEVELOPMENT OFFICE and its Director, Thomas C. Burns, Defendants Below, Appellants.
Docket NumberNo. 25437.
Decision Date19 May 1999

521 S.E.2d 543
206 W.Va.
51

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

No. 25437.

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1999.

Decided May 19, 1999.


521 S.E.2d 547
Darrell V. McGraw, Jr., Attorney General, Donald L. Darling, Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellants

Robert M. Bastress, West Virginia University College of Law, Morgantown, West Virginia, Sean P. McGinley, DiTrapano, Barrett & DiPiero, Charleston, West Virginia, Patrick C. McGinley, Suzanne M. Weise, Morgantown, West Virginia, Attorneys for the Appellee.

521 S.E.2d 544
521 S.E.2d 545

521 S.E.2d 546
DAVIS, Justice

The appellants herein and defendants below, the West Virginia Development Office and its director, Thomas C. Burns [hereinafter collectively referred to as "the Development Office"], appeal from an order entered January 29, 1998, by the Circuit Court of Kanawha County in an underlying action brought pursuant to the West Virginia Freedom of Information Act [hereinafter "FOIA"], W. Va.Code § 29B-1-1, et seq. In its order, the circuit court awarded attorney's fees to the appellee herein and plaintiff below, the Daily Gazette Company, Inc. [hereinafter "the Gazette"], finding that the Gazette had been successful in its action against the Development Office to obtain the disclosure of numerous public records which the Development Office claimed were protected from FOIA disclosure. On appeal to this Court, the Development Office contends that the circuit court erred in awarding the full amount of attorney's fees requested by the Gazette based upon the Gazette's alleged limited success in its FOIA action against the Development Office and this Court's announcement of new points of law in a prior appeal of this matter. Having reviewed the arguments of the parties, the record presented for our consideration on appeal, and the pertinent authorities, we find that the circuit court did not err in awarding the Gazette the full amount of attorney's fees requested in this case. W. Va.Code § 29B-1-7 (1992) (Repl.Vol.1998) specifically mandates the award of attorney's fees to parties who have been successful in bringing lawsuits to enforce the provisions of the FOIA. Moreover, we conclude that the attorney's fees authorized by W. Va.Code § 29B-1-7 are not subject to reduction if the successful party fails to win every argument advanced in the FOIA proceedings or if the governing court announces a new point of law in its decision of the controversy. Accordingly, we affirm the decision of the Circuit Court of Kanawha County.

I.

FACTUAL AND PROCEDURAL HISTORY

This appeal arises from an underlying action involving the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et seq. In 1995, the Daily Gazette Company, Inc., requested of the West Virginia Development Office the disclosure of various public records, as permitted by the FOIA, concerning a proposed pulp and paper mill to be constructed in Mason County, West Virginia. Although the Development Office permitted the Gazette to access some of the requested documents, it refused to release the remaining documents, claiming they were exempted from disclosure as "[i]nternal memoranda or letters received or prepared by any public body," W. Va.Code § 29B-1-4(8) (1977) (Repl.Vol.1998). As a result of the Development Office's denial of these requests, the Gazette filed a civil action against it, in May, 1995, in order to force the public disclosure of the withheld materials. Following numerous proceedings had in the Circuit Court of

521 S.E.2d 548
Kanawha County, the court entered an order, on December 14, 1995, requiring the Development Office to release some documents in full and to release other documents in redacted form. The court also determined that still other documents were exempt from FOIA disclosure.

The Gazette appealed the circuit court's decision to this Court, arguing that it was entitled to inspect the redacted documents in their unredacted state and that it should be permitted to review the documents found by the circuit court to be exempt from disclosure.1 On December 13, 1996, this Court remanded the case to the circuit court for further evaluation of several of the disputed documents to determine whether they should be disclosed or exempted from disclosure under the FOIA. See Daily Gazette Co., Inc. v. West Virginia Dev. Office, 198 W.Va. 563, 575, 482 S.E.2d 180, 192 (1996) [hereinafter "Gazette 1"]. Further proceedings in the circuit court resulted in the Development Office's concession and voluntary disclosure of several documents that previously had been released in redacted form or labeled as exempt from disclosure. With respect to the remaining documents, the circuit court adopted the Development Office's argument that such documents contained sensitive tax information that W. Va.Code § 11-10-5d (1995) (Repl.Vol.1995) prohibited the Development Office from disclosing.

Following the proceedings on remand to the circuit court, the Gazette petitioned that court for attorney's fees, as permitted by W. Va.Code § 29B-1-7 (1992) (Repl.Vol.1998).2 By order entered January 29, 1998, the circuit court found the amount of attorney's fees requested by the Gazette to be reasonable, both in hourly cost and in total amount of time claimed to have been spent preparing and prosecuting this action. Thus, the court order[ed] the Development Office to pay attorney's fees in the amount of $62,205.00 for the 319 hours expended by Mr. Patrick C. McGinley, Esquire, at a rate of $195.00, and the amount of $32,825.00 for the 262.2 hours expended by Suzanne M. Weise, Esquire, at the rate of $125.00 per hour.

From this ruling, the Development Office appeals to this Court.

II.

STANDARD OF REVIEW

The issues presented for resolution in this appeal are two-fold. First, we are asked to ascertain the meaning and effect of the statute authorizing awards of attorney's fees in successful FOIA cases, i.e., W. Va.Code § 29B-1-7. This question requires us to interpret W. Va.Code § 29B-1-7 and to settle purely legal questions as to the intent and scope of this legislative enactment. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.").

Second, we are asked to evaluate the amount of attorney's fees actually awarded by the circuit court as permitted by W. Va.Code § 29B-1-7. More specifically, the questions presented for our resolution in this regard inquire whether an award of attorney's fees pursuant to W. Va.Code § 29B-1-7 may be reduced (1) by amounts attributable to those portions of the lawsuit over which the successful plaintiff did not prevail or (2) where the resolution of the FOIA litigation results in this Court's recognition of

521 S.E.2d 549
new principles of law. Typically, we have reviewed the reasonableness of the amount of an award of attorney's fees for an abuse of discretion.

"`[T]he trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, [sic] and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion.' Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959)." Syl. Pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982) [ (per curiam) ].

Syl. pt. 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993). Having enunciated the applicable standards of review, we now proceed to consider the parties' contentions.

III.

DISCUSSION

On appeal to this Court, the Development Office complains that the circuit court erred by awarding the full amount of attorney's fees requested by the Gazette. In this regard, the Development Office contends that the award of attorney's fees should be reduced because (1) the Gazette allegedly achieved only limited success in its FOIA action as it did not prevail on every argument it asserted during the course of this litigation and (2) this Court created new principles of law, which factor should be considered when granting an award of attorney's fees.

A. West Virginia Freedom of Information Act and Award of Attorney's Fees in Successful FOIA Actions

Before we can reach the merits of the parties' arguments, it is first necessary to examine generally the purpose of the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et seq., and to consider specifically the statutory provision that requires an award of attorney's fees in successful FOIA actions, W. Va.Code § 29B-1-7. The express purpose of the West Virginia Freedom of Information Act is, briefly stated, to enable persons to access public records held by governmental agencies. See W. Va.Code §§ 29B-1-1 (1977) (Repl.Vol.1998); 29B-1-3 (1992) (Repl.Vol.1998). The more detailed statement of purpose announced by the Legislature provides that

it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist
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61 practice notes
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • 25 November 2014
    ...a court may consider these circumstances and apportion the attorney's fees accordingly.”); Daily Gazette Co. v. W. Va. Dev. Office, 206 W.Va. 51, 64, 521 S.E.2d 543, 556 (1999) (quoting syllabus point 5 of Highlands Conservancy ). Where counsel has devoted time and resources to an unwinnabl......
  • Findley v. State Farm Mut. Auto. Ins. Co., No. 30842.
    • United States
    • Supreme Court of West Virginia
    • 6 December 2002
    ...253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992)). See also Syl. pt. 4, Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999) ("`"A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interp......
  • W. Va. Dep't of Transp. v. Newton, No. 16-0325
    • United States
    • Supreme Court of West Virginia
    • 7 March 2017
    ...point 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993). Syl. pt. [2], Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).' Syl. Pt. 3......
  • Farley v. Worley, No. 31629.
    • United States
    • Supreme Court of West Virginia
    • 23 June 2004
    ...agree that our interpretation of this provision as contained in Syllabus point 7 of Daily Gazette Co. v. West Virginia Development Office, 206 W.Va. 51, 521 S.E.2d 543 (1999) (hereinafter "Daily Gazette II"), is controlling here. In Syllabus point 7 of Daily Gazette II, we For a person to h......
  • Request a trial to view additional results
61 cases
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • 25 November 2014
    ...a court may consider these circumstances and apportion the attorney's fees accordingly.”); Daily Gazette Co. v. W. Va. Dev. Office, 206 W.Va. 51, 64, 521 S.E.2d 543, 556 (1999) (quoting syllabus point 5 of Highlands Conservancy ). Where counsel has devoted time and resources to an unwinnabl......
  • Findley v. State Farm Mut. Auto. Ins. Co., No. 30842.
    • United States
    • Supreme Court of West Virginia
    • 6 December 2002
    ...253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992)). See also Syl. pt. 4, Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999) ("`"A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interp......
  • W. Va. Dep't of Transp. v. Newton, No. 16-0325
    • United States
    • Supreme Court of West Virginia
    • 7 March 2017
    ...point 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993). Syl. pt. [2], Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).' Syl. Pt. 3......
  • Farley v. Worley, No. 31629.
    • United States
    • Supreme Court of West Virginia
    • 23 June 2004
    ...agree that our interpretation of this provision as contained in Syllabus point 7 of Daily Gazette Co. v. West Virginia Development Office, 206 W.Va. 51, 521 S.E.2d 543 (1999) (hereinafter "Daily Gazette II"), is controlling here. In Syllabus point 7 of Daily Gazette II, we For a person to h......
  • Request a trial to view additional results

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