Hechler v. Casey, No. 16700

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH; BROTHERTON
• Citation: 333 S.E.2d 799,175 W.Va. 434
• Parties: Ken HECHLER, as Secretary of State, State of West Virginia v. The Honorable Patrick CASEY, as Judge of the Circuit Court of Kanawha County, West Virginia, and Southeastern Security & Investigations, Inc.
• Docket Number: No. 16700
• Decision Date: 05 July 1985

Page 799

333 S.E.2d 799 175 W.Va. 434 Ken HECHLER, as Secretary of State, State of West Virginia
v.
The Honorable Patrick CASEY, as Judge of the Circuit Court
of Kanawha County, West Virginia, and Southeastern
Security & Investigations, Inc. No. 16700. Supreme Court of Appeals of
West Virginia. July 5, 1985.
Dissenting Opinion Aug. 8, 1985.

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[175 W.Va. 436] Syllabus by the Court

1. " 'The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and

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such remedy must be exhausted before the courts will act.' Syl. pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958)." Syl. pt. 1, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).

2. " ' "The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers." ' " Syl. pt. 7, State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984). (citations omitted)

3. "Prohibition is a preventive remedy. One seeking relief by prohibition in a proper case is not required, as a prerequisite to his right to resort to such remedy, to wait until the inferior court or tribunal has determined the question of its jurisdiction, or to wait until the inferior court or tribunal has taken final action in the matter in which it is proceeding or about to proceed." Syl. pt. 5, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965).

[175 W.Va. 437] 4. 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].

5. An agreement as to confidentiality between the public body and the supplier of the information may not override the Freedom of Information Act, W.Va.Code, 29B-1-1 et seq.

6. 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.

7. 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.

8. W.Va.Code, 29B-1-4(2) [1977] does not normally exempt from disclosure an individual's name and residential address because they are not "personal" or "private" facts but are public in nature in that they constitute information normally shared with strangers and are ascertainable by reference to many publicly obtainable books and records. Thus, disclosure of an individual's name and residential address would not result in an unreasonable invasion of privacy.

9. W.Va.Code, 29B-1-4(2) [1977] does not exempt from disclosure under the Freedom of Information Act a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information constitutes public facts and since the risk of harm from disclosure is speculative.

10. The primary purpose of the law enforcement exemption to the Freedom of Information Act, W.Va.Code, 29B-1-4(4) [1977], is to prevent premature disclosure of investigatory materials which might be used in a law enforcement action.

11. "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 part of an inquiry into specific suspected violations of the law.

12. 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.

13. W.Va.Code, 29B-1-4(4) [1977] does not exempt from disclosure under the Freedom of Information Act a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information was not part of an inquiry into specific suspected violations but was generated pursuant to routine administration of W.Va.Code, 30-18-1 et seq. and the regulations promulgated thereunder, and does not reveal confidential investigative techniques or procedures.

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14. W.Va.R.App.P. 23(b) expressly precludes an award of costs for the benefit of the State or an agency or officer thereof in a case before this Court.

15. The State or an agency or an officer thereof which was represented by the Attorney General in proceedings to dissolve an injunction may not, under W.Va.Code, 53-5-9 [1931], recover reasonable attorney fees incurred in such proceedings because the State has not been "damaged" by payment of the salaries of the regular staff of the Attorney General.

Charlie Brown, Atty. Gen., Gregory W. Bailey, Bethany R. Boyd, Asst. Attys. Gen., Charleston, for appellant.

R. Joseph Zak, Charleston, for appellee Southeastern Security.

McHUGH, Justice:

In this original proceeding the Secretary of State for the State of West Virginia [hereinafter "the Secretary"] seeks a writ [175 W.Va. 438] of prohibition ¹ restraining the trial court from enforcing, in essence, two orders, the first enjoining the Secretary from disclosing to the public certain information about the employees of Southeastern Security & Investigations, Inc. [hereinafter "S.S. & I."] and the second enjoining the Secretary from conducting an administrative hearing to determine whether S.S. & I.'s private detective/investigator's license should be suspended or revoked. Before us is the petition, the response filed in accordance with the rule to show cause heretofore issued by us, all exhibits, including the transcripts of the evidentiary hearings before the trial court, ² and the briefs and oral argument of counsel.

We believe that the trial court exceeded its jurisdiction in entering the injunctive orders in question and, consequently, we award the writ of prohibition, as moulded.

I

S.S. & I., an Ohio corporation, in January, 1985, qualified to transact business in the State of West Virginia. Shortly thereafter, it began supplying security guards to Rawl Sales and Processing Company, a subsidiary of A.T. Massey Coal Company, at Rawl's processing plant at or near Lobata, Mingo County, West Virginia. For some months there had been a strike against Rawl by members of the United Mine Workers of America.

In March, 1985, the Secretary, pursuant to § 3.04 of his administrative regulations governing private detectives and investigators

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(including security guards), ³ requested in writing from S.S. & I. a list showing the names, birthdates, social security numbers, and current residence addresses of all employees of S.S. & I. stationed in the State of West Virginia. S.S. & I.'s attorney orally informed a deputy Secretary of State, in March, 1985, that S.S. & I. would furnish the requested information if the same would be kept confidential, so as not to further endanger the lives, health, or property of S.S. & I's security guards or their families. The deputy orally replied that, in his opinion, none of the statutory exemptions from the Freedom of Information Act ( W.Va.Code, 29B-1-1 et seq.) were applicable.

By a written notice dated March 29, 1985, the Secretary scheduled an administrative hearing, pursuant to W.Va.Code, 30-18-5 [1959], to be held on April 23, 1985, to determine whether to suspend or revoke S.S. & I's private detective/investigator license. Evidence was to be received on two points: (1) S.S. & I.'s failure to supply the names, addresses, etc., of the security guards and (2) S.S. & I.'s employment of at [175 W.Va. 439] least three convicted felons in violation of the statute on licensing of private detectives and investigators.

On April 3, 1985, S.S. & I. filed with the trial court a petition for prohibitory and injunctive relief. After issuing a rule to show cause and after conducting an evidentiary hearing, the trial court on April 22, 1985, entered an order, over the objection of the Secretary, compelling S.S. & I. to furnish to the Secretary the names, addresses, etc., of the security guards but, as a "protective provision," requiring the Secretary to maintain the confidentiality of such information by having those persons authorized to inspect the names, etc., as part of background investigations to execute a form "agreement" on the confidentiality of such information. In compliance with this order, S.S. & I. submitted the list of employees and their addresses, etc.

The three named employees of S.S. & I. who were suspected by the Secretary as being convicted felons had stated to the contrary in their employment applications. Each of the three had worked for S.S. & I. for less than thirty days, and each of them had been discharged prior to the scheduling of the administrative hearing.

Also on April 22, 1985, the trial court, upon examination of another petition for injunctive relief, granted a preliminary injunction preventing the Secretary from conducting the hearing scheduled for April 23, 1985, respecting the two matters covered in the notice of hearing, so as to permit the trial court the opportunity to determine those two issues after conducting a hearing on the permanency of the injunction. The Secretary thereafter moved to dissolve the preliminary injunction, but the trial court, on May 1, 1985, entered an order denying the motion to dissolve and setting May 20, 1985 as the date for the hearing on the permanency of the injunction.

II

In applying for a writ of prohibition from this Court, in effect to dissolve the injunction against holding the administrative hearing on the two points...