Farley v. Worley

• Decision Date: 23 June 2004
• Docket Number: No. 31629.,31629.
• Citation: 599 S.E.2d 835,215 W.Va. 412
• Court: West Virginia Supreme Court
• Parties: Jeff FARLEY, Appellant, Plaintiff below, v. Mayor Harold WORLEY, in His Official Capacity as Mayor for the City of Mullens, and the City of Mullens, Appellees, Defendants below.

599 S.E.2d 835

215 W.Va. 412

Jeff FARLEY, Appellant, Plaintiff below, v. Mayor Harold WORLEY, in His Official Capacity as Mayor for the City of Mullens, and the City of Mullens, Appellees, Defendants below.

No. 31629.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 2004.

Decided June 23, 2004.

Concurring and Dissenting Opinion of Justice Starcher June 25, 2004.

Jason E. Huber, Foreman & Huber, Charleston, West Virginia, Attorney for the Appellant.

W. Richard Staton, Moler & Staton, L.C., Jessica L. Toler, Mullens, West Virginia, Attorneys for the Appellees.

DAVIS, Justice:

Jeff Farley (hereinafter "Mr. Farley") appeals a denial of attorneys fees in a Freedom of Information Act (hereinafter "FOIA") case he filed against the City of Mullens and its Mayor, Harold Worley (hereinafter collectively referred to as "the City"). Having read the briefs, reviewed the record, examined the authorities, and heard argument, we reverse the circuit court's decision and remand this case for an award of an appropriate amount of attorney's fees.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Farley sent a letter to the City on July 24, 2002, requesting a list of the names of the businesses and individuals who owed delinquent Business and Occupation Taxes (hereinafter "B & O Taxes") to the City and the amount each owed. He also sought a list of the names of businesses and individuals who owed delinquent garbage and sewage bills and the amount they owed. The City replied on July 25, 2002, that the City had a policy to deal with tax delinquencies while protecting the privacy rights of individuals "who may for many different reasons have to be slow in making payments."

On August 12, 2002, Mr. Farley sent another letter to the City referencing his July 24 letter. The August 12 letter also specifically cited FOIA and referenced the opinion in Town of Burnsville v. Cline, 188 W.Va. 510, 425 S.E.2d 186 (1992), holding that it would not violate the privacy of taxpayers to permit a review of the roll of B & O taxpayers. It also cited our opinion in Daily Gazette Co. v. West Virginia Development Office, 198 W.Va. 563, 482 S.E.2d 180 (1996), discussing the Vaughn index.¹

The City replied to the August 12 letter on the same day. The City's response denied the July 22 request because "B & O Tax information is confidential and is exempt from disclosure pursuant to the Freedom of Information Act." The letter also detailed that "citizens have a legitimate expectation of privacy of the information provided to the city government." The City's response also stated that "[o]ur attorney is aware of the cases you cited in your letter."

Mr. Farley then sued alleging the City violated FOIA because: 1) it did not disclose the requested documents; 2) it did not provide a redacted version of the documents; or, 3) it did not provide an index which specifically identified each document and the exemption which the City relied upon in denying disclosure. The City filed an answer and a motion to dismiss alleging that tax information is confidential and exempt from disclosure under FOIA. After some discovery, Mr. Farley filed a motion for summary judgment.

On December 17, 2002, the circuit court heard arguments on the motion to dismiss and the motion for summary judgment.² After this hearing, but before the circuit court entered any order, Mr. Farley sought attorney's fees pursuant to FOIA's fee-shifting section, W.Va.Code § 29B-1-7. He requested $262.48 for costs and $6,060.00 in attorney's fees for 30.3 hours his counsel expended at $200.00 an hour.

On March 11, 2003, the circuit court, properly recognizing that it was reviewing the City's motion to dismiss by looking beyond the pleadings, construed the motion to dismiss as one for summary judgment. It granted the City summary judgment and denied Mr. Farley attorney's fees.

In its order, the circuit court found that, at the hearing, Mr. Farley for the first time offered a compromise and that the litigation likely may have been avoidable if he had been so amenable before suing.³ The circuit court then found that Mr. Farley was entitled to a list showing delinquent B & O tax amounts owed that did not include the names of taxpayers and without any identifying information. The court also directed the City, if Mr. Farley desired, to supply the Court with a roll of taxpayers which Mr. Farley could review in the court's chambers, but not including any tax return information, pursuant to Town of Burnsville v. Cline, 188 W.Va. 510, 425 S.E.2d 186 (1992).

As to the garbage and sewer fees, the court found this information to be exempt under W. Va.Code §§ 29B-1-4(a)(5) (2003) (Supp.2003) and 11-10-5d(a) (2002) (Repl.Vol.2003).⁴ However, the court found that Mr. Farley was entitled the total amount of the delinquencies. The court directed the City to provide Mr. Farley a list of amounts owed for garbage and sewer delinquencies for each tax period, but not including account numbers and names, in response to Mr. Farley's narrowed FOIA request.

Having set out the substantive rulings, the circuit court then turned to attorney's fees. The court found that Mr. Farley "has not substantially prevailed in this matter" because he "did not make a request that the Defendants could lawfully comply with until the hearing in this matter." The circuit court then found the City did honor Mr. Farley's narrowed request made at the summary judgment hearing. Because the City honored what the circuit court characterized as a legal request, the circuit court denied fees.

II. STANDARD OF REVIEW

In this case, the circuit court considered the City's motion to dismiss in light of matters outside of the pleadings. The circuit court then properly construed the City's motion to dismiss as a motion for summary judgment.⁵

"Summary judgment is the preferred method of resolving cases brought under FOIA." Evans v. Office of Personnel Mgt., 276 F.Supp.2d 34, 37 (D.D.C.2003). In FOIA cases, "the same standard of appellate review applicable generally to summary judgments" is utilized. Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (R.B. Ginsburg, J.). However, FOIA summary judgment is viewed through the evidentiary burden placed upon the public body to justify the withholding of materials. See id. ("In performing that review, however, we are mindful that the `burden is on the agency' to show that requested material falls within a FOIA exemption." (citation omitted)); Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999) ("At the summary judgment stage, ... the agency has the burden to show that it acted in accordance with the statute [.]"). See also W. Va.Code § 29B-1-5(2) (1977) (Repl.Vol.2003) ("[T]he burden is on the public body to sustain its action."); Williams v. Precision Coil, Inc., 194 W.Va. 52, 62, 459 S.E.2d 329, 339 (1995) ("[I]n making a ruling, `the judge must view the evidence presented through the prism of the substantive evidentiary burden."' (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 215 (1986)). Our standard of review for summary judgment orders is well-established. "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It is equally well-established that, as here, "[w]here 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). Cf. W. Va.Code § 29B-1-5(2) (in reviewing a public body's actions in response to a FOIA request, "[t]he court shall determine the matter de novo [.]"). Having set forth the parameters of our review, we turn to the merits of the case.

III. DISCUSSION

This case involves FOIA's fee-shifting section which provides:

Any person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to section five of this article shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records.

W. Va.Code § 29B-1-7. Both sides 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 held:

For a person to have brought a suit for the disclosure of public records under the West Virginia Freedom of Information Act (FOIA), as permitted by W. Va.Code § 29B-1-5 (1977) (Repl.Vol.1998), so as to entitle him/her to an award of attorney's fees for "successfully" bringing such suit pursuant to W. Va.Code § 29B-1-7 (1992) (Repl.Vol.1998), he/she need not have prevailed on every argument he/she advanced during the FOIA proceedings or have received the full and complete disclosure of every public record he/she wished to inspect or examine. An award of attorney's fees is proper even when some of the requested records are ordered to be disclosed while others are found to be exempt from disclosure or are released in redacted form. In the final analysis, a successful FOIA action, such as would warrant an award of attorney's fees as authorized by W. Va.Code § 29B-1-7, is one which has contributed to the defendant's disclosure, whether voluntary or by order of court, of the public records originally denied the plaintiff.

It is at this point that the parties diverge. Mr. Farley contends that he successfully brought suit pursuant to W. Va.Code § 29B-1-5(1)⁶ because the City originally denied him access to any records, and, at the end of the litigation he had access to the records he sought, albeit in a redacted form. The City, of course, disagrees. It argues that Mr. Farley's FOIA...