Gazette v. Smithers

• Decision Date: 26 November 2013
• Docket Number: No. 12–0811.,12–0811.
• Court: West Virginia Supreme Court
• Parties: The CHARLESTON GAZETTE d/b/a Daily Gazette Co., Petitioner Below, Petitioner v. Colonel Jay SMITHERS, Superintendent of the West Virginia State Police, Respondent Below, Respondent.

232 W.Va. 449

752 S.E.2d 603

The CHARLESTON GAZETTE d/b/a Daily Gazette Co., Petitioner Below, Petitioner

v.Colonel Jay SMITHERS, Superintendent of the West Virginia State Police, Respondent Below, Respondent.

No. 12–0811.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 15, 2013.

Decided Nov. 26, 2013.

Syllabus by the Court

1. “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).

2. “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).

3. “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, and the exemptions to such Act are to be strictly construed. W. Va.Code, 29B–1–1 [1977].” Syl. Pt. 4, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

4. “The party claiming the 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. W. Va. Univ. Hosps., Inc., 179 W.Va. 95, 365 S.E.2d 375 (1987).

5. “The primary purpose of the invasion of privacy exemption to the Freedom of Information Act, W. Va.Code, 29B–1–4(2) [1977], is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Syl. Pt. 6, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

6. “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, 175 W.Va. 434, 333 S.E.2d 799 (1985).

7. “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.

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.”

Syl. Pt. 2, Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986).

8. Conduct by a state police officer while the officer is on the job in his or her official capacity as a law enforcement officer and performing such duties, including but not limited to, patrolling, conducting arrests and searches, and investigating crimes does not fall within the West Virginia Freedom of Information Act invasion of privacy exemption set forth in West Virginia Code § 29B–1–4(a)(2) (2012).

9. “Once a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious.” Syl. Pt. 2, W. Va. Health Care Cost Review Auth. v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996).

10. When West Virginia Code of State Rules § 81–10–6.2 (2008) is invoked to resist disclosure of information based on confidentiality, a court should perform an analysis under the West Virginia Freedom of Information Act, West Virginia Code §§ 29B–1–1 to –7 (2012), and case law decided thereunder, giving due regard to the rule as one factor to be considered under syllabus point two of Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986).

11. When a request is made under the West Virginia Freedom of Information Act, West Virginia Code §§ 29B–1–1 to –7 (2012), for information from the West Virginia State Police regarding an internal investigation or inquiry stemming from either an external or internal complaint of misconduct by a state police officer in connection with the officer's official capacity as a law enforcement officer, such information is subject to release to the public only after completion of the investigation or inquiry and a determination made as to whether disciplinary action is authorized by the Superintendent as set forth in West Virginia Code of State Rules § 81–10–8.13 (2008). After the investigation or inquiry into the complaint has been concluded and a determination made as to whether disciplinary action is authorized by the Superintendent, the public has a right to access the complaint, all documents in the case file, and the disposition, with the names of the complainants or any other identifying information redacted in accordance with the confidentiality requirements established by West Virginia Code of State Rules §§ 81–10–1 to –11 (2008).

12. When a request is made under the West Virginia Freedom of Information Act, West Virginia Code §§ 29B–1–1 to –7 (2012), for information from the West Virginia State Police regarding a state police officer who has received two or more either external or internal complaints of misconduct while on the job in his or her official capacity as a law enforcement officer, or where the state police officer has three or more use of force incidents during a three-month period and is thus subject to review by the Internal Review Board in accordance with the provisions of the Early Identification System, such information is subject to release to the public only when a decision has been rendered by the Internal Review Board as to whether further action is required. Only when a decision has been rendered by the Internal Review Board as to whether further action is required as set forth in West Virginia Code of State Rules § 81–10–9.1 (2008) does the public have a right to access the records associated with the review by the Internal Review Board of the state police officer who was the subject of the review, with names of the complainants or any other identifying information redacted in accordance with the confidentiality requirements established by West Virginia Code of State Rules §§ 81–10–1 to –11 (2008).

13. “When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va.Code, 29B–1–4 (2002 Repl.Vol.) (2003 Supp.), 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 reason(s) why an exemption under W. Va.Code, 29B–1–4 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. Syllabus point 3 of Daily Gazette Co., Inc. v. West Virginia Development Office, 198 W.Va. 563, 482 S.E.2d 180 (1996), is hereby expressly modified.” Syl. Pt. 6, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004).

14. “In a proceeding seeking disclosure of public records under the West Virginia Freedom of Information Act, W. Va.Code § 29B–1–1, et seq., a trial court may sua sponte order the production of the records withheld and hold an in camera review of the records in order to decide whether any of the records are subject to disclosure under the Act. W. Va.Code § 29B–1–5(2) (1977) (Repl.Vol.2007).” Syl. Pt. 1, Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009).

15. “The primary purpose of the law enforcement exemption to the Freedom of Information Act, W. Va.Code § 29B–1–4(4), is to prevent premature disclosure of investigatory materials which might be used in a law enforcement action.” Syl. Pt. 10, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

16. “ ‘Records ... that deal with the detection and investigation of crime,’ within the meaning of W. Va.Code, 29B–1–4(4) [1977], do not include information generated pursuant to routine administration or oversight, but is limited to information compiled as a part of an inquiry into specific suspected violations of law.” Syl. Pt. 11, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

17. “The language, ‘internal records and notations ... which are maintained for internal use in matters relating to law enforcement,’ within the meaning of W. Va.Code, 29B–1–4(4) [1977], refers to confidential investigative techniques and procedures.” Syl. Pt. 12, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

18. “To the extent that information in an incident report dealing with the detection and investigation of crime will not compromise an ongoing law enforcement investigation, we hold that there is a public right of access under the West Virginia Freedom of Information Act.” Syl. Pt. 1, Ogden Newspapers, Inc. v. City of Williamstown, 192 W.Va. 648, 453 S.E.2d 631 (1994).

19. “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...