Roger Hurlbert & Sage Info. Servs. v. Matkovich
Citation | 233 W.Va. 583,760 S.E.2d 152 |
Decision Date | 06 June 2014 |
Docket Number | No. 13–0217.,13–0217. |
Court | Supreme Court of West Virginia |
Parties | Roger HURLBERT and Sage Information Services, Plaintiffs Below, Petitioners v. Mark MATKOVICH, Acting Tax Commissioner, West Virginia State Tax Department, Defendant Below, Respondent and Sallie Robinson, Kanawha County Assessor, Intervenor Below, Respondent. |
233 W.Va. 583
760 S.E.2d 152
Roger HURLBERT and Sage Information Services, Plaintiffs Below, Petitioners
v.
Mark MATKOVICH, Acting Tax Commissioner, West Virginia State Tax Department, Defendant Below, Respondent
and
Sallie Robinson, Kanawha County Assessor, Intervenor Below, Respondent.
No. 13–0217.
Supreme Court of Appeals of
West Virginia.
Submitted April 8, 2014.
Decided June 5, 2014.
Concurring Opinion of Justice LOUGHRY
June 6, 2014.
[760 S.E.2d 155]
1. “This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
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 primary purpose of the invasion of privacy exemption to the Freedom of Information Act, W. Va.Code, 29B–1–4[a](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).
5. “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).
6. “Under W. Va.Code 29B–1–4[a](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 response to a proper Freedom of Information Act request, a public body has a duty to redact or segregate exempt from non-exempt information contained within the public record(s) responsive to the FOIA request and to disclose the nonexempt information unless such segregation or redaction would impose upon the public body an unreasonably high burden or expense. If the public body refuses to provide redacted or segregated copies because the process of redacting or segregating would impose an unreasonably high burden or expense, the public body must provide the requesting party a written response that is sufficiently detailed to justify refusal to honor the FOIA request on these grounds. Such written response, however, need not be so detailed that the justification would compromise the secret nature of the exempt information.” Syl. Pt. 5, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004).
8. “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....” Syl. Pt. 6, in part, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004).
[760 S.E.2d 156]
Rudolph L. DiTrapano, Esq., Sean P. McGinley, Esq., Katherine R. Snow, Esq., DiTrapano Barrett DiPiero McGinley & Simmons, PLLC, Charleston, WV, for Petitioners.
Patrick Morrissey, Esq., Attorney General, Katherine A. Schultz, Esq., Senior Deputy Attorney General, Charleston, WV, for Respondent.
Karen Tracy McElhinny, Esq., Shuman, McCuskey & Slicer PLLC, Charleston, WV, for Intervenor.
PER CURIAM:
Petitioners/plaintiffs below Roger W. Hurlbert and Sage Information Services (hereinafter “petitioners”) appeal the Circuit Court of Kanawha County's January 14, 2013, order granting summary judgment to respondent/defendant Mark Matkovich, Acting Tax Commissioner, West Virginia State Tax Department (“Tax Commissioner”) and respondent/intervenor Sallie Robinson, Kanawha County Assessor (“Kanawha County Assessor”) (hereinafter collectively “respondents”), in this declaratory judgment action brought pursuant to the Freedom of Information Act (hereinafter “FOIA”). In granting summary judgment to respondents, the circuit court found that petitioners were not entitled to disclosure of the Computer–Assisted Mass Appraisal (“CAMA”) files for all real property in the State of West Virginia.
Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erred in concluding that the CAMA files are categorically exempt from production pursuant to a FOIA request and remand for submission of a Vaughn1 index and further findings by the circuit court consistent with this opinion.
Petitioner Roger Hurlbert, a resident of California, is the sole proprietor of petitioner Sage Information Services. Petitioners assert that their business involves “the prevention and apprehension of mortgage fraud through the automated verification of appraisal data.” On May 16, 2011, petitioners made a written request to the Tax Commissioner for “a copy, on CD or similar electronic media, of both the assessment files and the CAMA files for all real property in all counties.” Petitioners enclosed a six-page itemization of the fields of data from the CAMA files they were requesting.
The parties are largely agreed as to the following encapsulation of the tax appraisal process, an understanding of which is necessary to differentiate the various characterizations and labels of the two types of information at issue herein—the assessment files and the CAMA files. The county assessors are charged by statute with the collection of information for use in assessment of property taxes. SeeW. Va.Code § 11–1A–12(a) (1991) (“It is the intent of the Legislature that in carrying out the appraisal functions required by this article, the Tax Commissioner shall utilize the county assessors and their employees.”) All county assessors in West Virginia perform Computer–Assisted Mass Appraisal (“CAMA”) and input data collected during their assessment functions into a statewide Integrated Assessment System (“IAS”) maintained and administered by the Tax Commissioner. The Tax Commissioner has access to the information in the IAS (and therefore the CAMA files) for purposes of supervision, auditing, and oversight; however, only the county assessors can input or change the data therein.
As part of the real property assessment process, the county assessor is charged with “mak[ing] out the land books” which contain the tax ticket number, taxpayer name, map, parcel, deed book/page, property description, assessed value, and tax for each parcel of property in the county, as more particularly described in West Virginia Code § 11–4–1 et seq. This information is publicly available in the county offices; respondents contend that the “assessment files” requested by petitioners
[760 S.E.2d 157]
are merely a compilation of the information in the publicly-available land books.
The CAMA files, on the other hand, may include more detailed information about various properties including sketches/photos of the property, floor plans, number of bathrooms/bedrooms, type of construction material, type of heating, topography, etc. In addition, the CAMA files may contain information which respondents have characterized as sensitive and personal information such as whether the residence has a security system, whether the resident is home during the day, whether the resident has a disability, whether the residence is unoccupied due to nursing home stays or otherwise vacant. With regard to commercial properties, the CAMA files contain information regarding profits/losses, blueprints, photographs, business income, and other information that could ostensibly provide a competitive advantage. The CAMA files for industrial properties contain similar information but also include the names of buildings and types of storage/operation in each, which respondents allege present homeland security issues.2
In response to petitioners' FOIA request, the Tax Commissioner: 1) granted the request for the assessment files in exchange for payment of $9.23 in copying expense; and 2) denied the request for the CAMA files, stating that it was not the custodian of those records, but rather, the county assessors were the custodians.3 Petitioners requested that the Tax Commissioner revisit its denial, but the Tax Commissioner refused to change its position. Petitioners did not avail themselves of the assessment files which were offered. At no time prior to the litigation did the Tax Commissioner claim any statutorily-enumerated FOIA exemption; rather, it claimed simply that it was not the custodian of the CAMA files.
As a result, petitioners filed the instant action seeking declaratory judgment and injunctive relief; the Kanawha County Assessor...
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