Highland Mining Co. v. W. Va. Univ. Sch. of Med., No. 14–0370.

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN, Chief Justice
Citation235 W.Va. 370,774 S.E.2d 36
PartiesHIGHLAND MINING COMPANY, Plaintiff Below, Petitioner v. WEST VIRGINIA UNIVERSITY SCHOOL OF MEDICINE, Defendant Below, Respondent.
Docket NumberNo. 14–0370.
Decision Date21 May 2015

235 W.Va. 370
774 S.E.2d 36

HIGHLAND MINING COMPANY, Plaintiff Below, Petitioner
v.
WEST VIRGINIA UNIVERSITY SCHOOL OF MEDICINE, Defendant Below, Respondent.

No. 14–0370.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 2015.
Decided May 21, 2015.


Christopher B. Power, Esq., Robert M. Stonestreet, Esq., Babst, Calland, Clements and Zomnir, PC, Charleston, WV, for Petitioner.

Carte P. Goodwin, Esq., Johnny M. Knisely II, Esq., Benjamin B. Ware, Esq., Elise N. McQuain, Esq., Goodwin & Goodwin, LLP, Charleston, WV, for Respondent.

Opinion

WORKMAN, Chief Justice:

235 W.Va. 376

Petitioner Highland Mining Company (“Highland”) filed this civil action under the

235 W.Va. 377
774 S.E.2d 43

West Virginia Freedom of Information Act (“FOIA”), West Virginia Code §§ 29B–1–1 to –7 (2012), seeking disclosure of public records from Respondent West Virginia University School of Medicine (“WVU”). The FOIA requests focused on documents related to several articles co-authored by WVU Associate Professor Michael Hendryx, Ph.D., suggesting that environmental impacts of surface coal mining play a role in the health problems of the area's residents. The parties litigated this matter for two years in the Circuit Court of Monongalia County; WVU released certain documents to Highland but withheld certain other documents, either in whole or in part, claiming they were statutorily exempt. Finally, the circuit court granted summary judgment in favor of WVU, and dismissed this action.

On appeal to this Court, Highland raises several assignments of error and argues the circuit court's order should be reversed because it is based upon an unprecedented expansion of the FOIA exemptions. Upon review, we affirm, in part; reverse, in part; and remand the case for further proceedings. For the reasons discussed below, this Court finds: (1) WVU may invoke the FOIA's “internal memoranda” exemption set forth in West Virginia Code § 29B–1–4(a)(8) to withhold documents that reflect Professor Hendryx's deliberative process; (2) WVU may not claim an “academic freedom” privilege to avoid the plain language of the FOIA; (3) the FOIA's “personal privacy” exemption set forth in West Virginia Code § 29B–1–4(a)(2) is not applicable to documents containing anonymous peer review comments of the draft articles but those documents are still exempt from disclosure under the FOIA's “internal memoranda” exemption; (4) Highland should have been afforded the opportunity to modify its FOIA requests before the circuit court dismissed the action; and (5) the circuit court must issue a ruling on Highland's request for attorney fees and costs. Accordingly, we remand this matter for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Highland submitted extensive FOIA requests to WVU on February 1, 2012. Highland requested documents related to eight articles co-authored by Professor Hendryx, Director of the West Virginia Rural Health Research Center, with WVU's School of Medicine's Department of Community Medicine. In those articles, Professor Hendryx suggested there was a connection between surface coal mining and birth defects, cancer, and poor quality of life in the region.1 Highland requested essentially all documents related to the initiation, preparation and publication of Professor Hendryx's articles.2

774 S.E.2d 44
235 W.Va. 378

By e-mails dated March 2, 2012, WVU refused to release any documents responsive to the FOIA requests. WVU asserted the documents were exempt from disclosure under the following FOIA exemptions: (1) information of a personal nature, West Virginia Code § 29B–1–4(a)(2) ; (2) information specifically exempt from disclosure by statute, West Virginia Code § 29B–1–4(a)(5) ; (3) internal memoranda, West Virginia Code § 29B–1–4(a)(8) ; and (4) trade secrets, West Virginia Code § 29B–1–4(a)(1).

On April 12, 2012, Highland instituted this action against WVU, seeking disclosure of the documents it requested pursuant to the FOIA. WVU filed a motion to dismiss on August 3, 2012, claiming the FOIA requests were overly broad and unduly burdensome; Highland filed a motion for summary judgment on September 11, 2012. Following a hearing on these motions, the circuit court rejected WVU's claim of undue burden. The circuit court stated WVU was “stonewalling” Highland by refusing to provide any responsive documents. By order entered November 7, 2012, the circuit court denied WVU's motion to dismiss and deferred a ruling on Highland's motion for summary judgment. The circuit court required that WVU release any responsive information to Highland, and if any responsive documents were withheld from disclosure or redacted, that WVU provide a Vaughn index3 and explanative affidavit.

Thereafter, WVU retained the services of a document management company to electronically manage the production of documents for Highland's FOIA requests. Over the course of this litigation, WVU has made five productions of documents to Highland, producing some 2,364 documents, totaling 11,090 pages. Four of those document productions4 included a separate Vaughn index and corresponding affidavit, explaining WVU's decision to redact 119 documents and withhold 772 documents.

774 S.E.2d 45
235 W.Va. 379

On April 3, 2013, Highland filed a renewed motion for summary judgment, arguing the Vaughn indices that WVU provided were facially insufficient and that most, if not all, of the exemptions cited by WVU were not applicable. Following briefing, the circuit court held a hearing on this motion. On May 30, 2013, the circuit court entered an “Agreed Order Regarding Preparation of Sample Vaughn Index.” The circuit court required WVU to provide a sample Vaughn index with respect to a limited number of withheld documents; this Vaughn index was to include a more detailed explanation of each withheld document, specifically, how each cited exemption applied to justify the respective withholding.

On July 17, 2013, WVU provided the sample Vaughn index and the affidavit of WVU's associate general counsel. The sample Vaughn index listed ninety-three documents that were redacted or withheld from production. According to WVU, some documents were withheld on the basis of the FOIA's “internal memoranda” exemption, some documents were withheld on the basis of “academic freedom” privilege, and some documents were withheld on the basis of the FOIA's “trade secret” exemption.

On November 6, 2013, the circuit court entered an “Agreed Order Regarding Briefing on Outstanding Issues,” pursuant to which it required both parties to file renewed motions for summary judgment. Thereafter, the parties filed briefs and identified those documents listed on the sample Vaughn index they wanted the circuit court to review in camera.

In Highland's memorandum of law in support of its renewed motion for summary judgment, Highland provided the following factual background regarding its request for documents concerning Professor Hendryx's work:

At all relevant times, Michael Hendryx, Ph.D., was a professor employed by the defendant West Virginia University School of Medicine (“WVU”) who holds degrees in psychology but is not a medical doctor, toxicologist, or epidemiologist. Prof. Hendryx was the Director of the West Virginia Rural Health Research Center, where he and his colleagues received public funds to research rural health issues. In that capacity, Hendryx published taxpayer-funded papers such as those that are the subject of the FOIA Requests, focused on linking coal mining and adverse health impacts. His goal—in his own words—is to convince “politicians” that West Virginia “can have a better economy if we work to create a more diverse economy that does not depend on coal.” He further hopes his studies help eliminate mountaintop removal mining and focus policymakers away from coal and towards “cleaner” forms of energy. He thinks that “tighter standards on emissions controls is an important outcome of [his] research.” He hopes “to get [his papers] more in the eyes of state policy makers” so that “the Appalachian people and governments could consider whether our reliance on coal mining for the economy is a good idea or not.” (footnotes and citations omitted).

Highland requested that the circuit court order WVU to provide all responsive documents listed on the sample Vaughn index, arguing they do not fall under any applicable FOIA exemption. Highland also requested that the circuit court order WVU to confer with Highland regarding the retrieval and review of additional responsive materials that have yet to be gathered in response to the FOIA request. Finally, Highland asserted the circuit court should award it attorney fees and costs in accordance with West Virginia Code § 29B–1–7 because WVU improperly denied Highland access to the public records.

In WVU's memorandum of law in support of its renewed motion for summary judgment, WVU argued:

The majority of the
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2 practice notes
  • W. Va. Reg'l Jail & Corr. Facility Auth. v. Marcum, No. 15–1174
    • United States
    • Supreme Court of West Virginia
    • April 26, 2017
    ...As a general matter, "FOIA requires the release of public records upon request." Highland Min. Co. v. West Virginia Univ. Sch. of Med ., 235 W.Va. 370, 380, 774 S.E.2d 36, 46 (2015). See also W. Va. Code § 29B–1–4(a) ("There is a presumption of public accessibility to all public records[.]"......
  • W.Va. Reg'l Jail Auth. v. Marcum, No. 15-1174
    • United States
    • Supreme Court of West Virginia
    • April 26, 2017
    ...construed, while the FOIA's disclosure provisions are to be liberally construed[.]" Highland Min. Co. v. W.Va. Univ. Sch. of Med., 235 W.Va. 370, 381, 774 S.E.2d 36, 47 (2015). Where an enumerated exemption is relied on, the court must determine the matter de novo,2 and the public body asse......
2 cases
  • W. Va. Reg'l Jail & Corr. Facility Auth. v. Marcum, No. 15–1174
    • United States
    • Supreme Court of West Virginia
    • April 26, 2017
    ...As a general matter, "FOIA requires the release of public records upon request." Highland Min. Co. v. West Virginia Univ. Sch. of Med ., 235 W.Va. 370, 380, 774 S.E.2d 36, 46 (2015). See also W. Va. Code § 29B–1–4(a) ("There is a presumption of public accessibility to all public records[.]"......
  • W.Va. Reg'l Jail Auth. v. Marcum, No. 15-1174
    • United States
    • Supreme Court of West Virginia
    • April 26, 2017
    ...construed, while the FOIA's disclosure provisions are to be liberally construed[.]" Highland Min. Co. v. W.Va. Univ. Sch. of Med., 235 W.Va. 370, 381, 774 S.E.2d 36, 47 (2015). Where an enumerated exemption is relied on, the court must determine the matter de novo,2 and the public body asse......

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