In re Charleston Gazette Foia Request

• Decision Date: 09 December 2008
• Docket Number: No. 33812.,33812.
• Citation: 671 S.E.2d 776
• Parties: In re CHARLESTON GAZETTE FOIA REQUEST.
• Court: West Virginia Supreme Court

671 S.E.2d 776

In re CHARLESTON GAZETTE FOIA REQUEST.

No. 33812.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2008.

Decided December 9, 2008.

Concurring Opinion of Justice Benjamin January 9, 2009.

Syllabus by the Court

1. "`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.' Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syllabus Point 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999).

2. "Section 10, article 3, of the Constitution of West Virginia, properly applied, secures to a litigant a reasonable opportunity to be heard when the processes of the courts are invoked against him; and where that opportunity has been denied by the refusal to grant a reasonable time in which to prepare and file pleadings setting up his defense, this court will not pass on the merits of the case until opportunity is given to file such pleadings in the court of original jurisdiction, and a hearing had thereon in said court." Syllabus Point 1, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64 (1937).

3. "The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard." Syllabus Point 2, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64 (1937).

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]." Syllabus Point 4, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).

5. "`In deciding whether the public disclosure of information of a personal nature under W.Va.Code § 29B-1-4[a](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.' Syllabus Point 2, Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986)." Syllabus Point 4, Manns v. City of Charleston Police Dept., 209 W.Va. 620, 550 S.E.2d 598 (2001).

6. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syllabus Point 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).

Ancil G. Ramey, Esq., Bryan Cokeley, Esq., Hannah B. Curry, Esq., Steptoe & Johnson, PLLC, Charleston, for Appellant.

Rudolph L. DiTrapano, Esq., Sean P. McGinley, Esq., DiTrapano Barrett & DiPiero, PLLC, Charleston, for Appellee.

PER CURIAM.¹

The appellant, the City of Charleston (hereinafter "the City"), appeals the dismissal of its declaratory judgment action filed on August 9, 2007, wherein it sought a declaration of its rights and obligations in responding to a request made by the Charleston Gazette newspaper (hereinafter "the Gazette") pursuant to the Freedom of Information Act (hereinafter "FOIA"). On July 6, 2007, the Gazette requested "inspection and copying all records related to" weekly payroll time sheets and activity logs for certain named police officers of the Charleston Police Department (hereinafter "the CPD"). The City denied the request and then filed this declaratory judgment action. On August 22, 2007, the circuit court dismissed the City's complaint sua sponte. Two days later, the City filed a motion to alter or amend the judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. On August 27, 2007, the circuit court entered an amended order again dismissing the case and reiterating its previous finding that a declaratory judgment in this matter would not terminate the controversy. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court erred by sua sponte dismissing the City's declaratory judgment action. We therefore find that the City must disclose the records sought by the Gazette. Thus, the final order of the circuit court is remanded for further proceedings consistent with this opinion.

I. FACTS

As discussed above, the Gazette submitted a FOIA request to the City on July 6, 2007, requesting copies of weekly payroll time sheets and activity logs for certain named police officers employed by the CPD. The Gazette sought the information following public allegations that some police officers were "double-dipping." In other words, it was alleged that while these police officers were on duty for the City, they were also employed at the very same time by private entities as security guards, and therefore, they were collecting two pay checks at the same time-one from the City and one from the private employer.

The allegations of double dipping became public when a police officer was prosecuted for such behavior. The officer publicly stated that it was a common occurrence for other City police officers to engage in the same conduct; however, he stated that those other officers were not being prosecuted. Thus, the Gazette, believing it was acting in the public's interest, sought to inspect the public records showing the times worked and paid for by public dollars for other police officers, in an effort to determine whether other police officers were in fact double-dipping.

On July 18, 2007, the City denied the Gazette's FOIA request and listed four reasons for its decision. The City first stated that some of the documents sought by the Gazette directly pertained to an ongoing criminal investigation being undertaken by the CPD. Next, the City stated that Kanawha County Circuit Judges Jennifer Bailey Walker and Tod Kaufman had both issued protective orders, in proceedings separate from the Gazette's request, sealing the records of six of the twenty-eight officers who were the subject of the Gazette's document request. Third, the City indicated that it was uncertain about releasing the documents in question because Judge Walker ruled, when similar information was sought by a defendant for use in his criminal case, "that the type of information requested by Defendant, some of which would have to be obtained from personnel files, together with the proffer of the CPD about that information, would trigger the protections afforded under Manns [v. City of Charleston Police Department, 209 W.Va. 620, 550 S.E.2d 598 (2001)] and Maclay [v. Jones, 208 W.Va. 569, 542 S.E.2d 83 (2001)]." Finally, the City explained that it had received a letter from the Fraternal Order of Police, Capitol City Lodge 74, on behalf of some or all of the officers whose records were requested by the Gazette, "request[ing] that the City not produce these records absent a court order."

On August 1, 2007, the Gazette replied to the City's denial by disputing the City's reasons for non-disclosure and asking the City to reconsider its denial to provide the documents in question. On August 9, 2007, the City filed a complaint for declaratory judgment in the Circuit Court of Kanawha County. On August 22, 2007, before the Gazette filed a response, the circuit court dismissed the City's complaint, sua sponte. The circuit court found that an order in the case would not be of practical assistance in setting the controversy to rest. The circuit court further explained that, "were this Court to enter the requested declaratory judgment, the documents would still remain under seal, and thus, the underlying controversy of this matter would persist."

On August 24, 2007, the City filed a motion to alter or amend judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. It argued that the protective orders in question only sealed some of the documents requested by the Gazette, while other requested documents were not under seal. On August 27, 2007, the circuit court entered an amended order dismissing the complaint and noted that "some of the documents" at issue were under seal by orders of Judges Walker and Kaufman. The circuit court then reiterated its previous point that the controversy would not end with an order for the requested declaratory judgment. The appellant appealed the circuit court's final order, which is the subject of our review today.

II. STANDARD OF REVIEW

In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, "`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.' Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." We have further indicated that a circuit court's final order and ultimate disposition are reviewed under the abuse of discretion standard. State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).

III. DISCUSSION

In this appeal, the City argues that the circuit court erred by dismissing its case without providing notice and opportunity to be heard in opposition of the dismissal. The City maintains that this Court has held that due process requires notice and an opportunity to be heard before a case is dismissed. The City contends that it had a legitimate argument that dismissal was improper and that its complaint had set forth specific factual averments that a controversy existed and that a declaration of the rights of the parties would settle the underlying controversy. In that regard,...