Smith v. Van Meter
| Decision Date | 15 March 2021 |
| Docket Number | No. 19-0679,19-0679 |
| Citation | 855 S.E.2d 897 |
| Court | West Virginia Supreme Court |
| Parties | Jay Lawrence SMITH, Plaintiff Below, Petitioner, v. Angela B. VAN METER, in her capacity as the Circuit Clerk of Grant County; and the Grant County Circuit Clerk's Office, a subdivision of the Grant County Commission ; and the Grant County Commission, Defendants Below, Respondents. |
Robert W. Bright, Esq., Middleport, Ohio, Counsel for Petitioner.
John G. Ours, Esq., Grant County Prosecuting Attorney, Petersburg, West Virginia, Counsel for Respondents.
When Petitioner Jay Lawrence Smith went to the Grant County Circuit Clerk's Office in September 2018 to review records, he told an assistant clerk that he planned to photograph several documents in the public file. Eventually, Grant County Circuit Clerk Angela B. Van Meter (Clerk Van Meter) instructed Mr. Smith that he could take the photos but would be required to pay a fee of one dollar per page for each photograph. Mr. Smith did not take the photos of the public documents and later filed a request for the same documents, along with a five-dollar bill to cover the cost of reproduction, under the West Virginia Freedom of Information Act (FOIA).1 The FOIA request was declined.
Mr. Smith then filed a claim for declaratory and injunctive relief against Clerk Van Meter, the Grant County Circuit Clerk's Office and the Grant County Commission (Respondents). Mr. Smith sought to prohibit Respondents from enforcing any policy restricting anyone from using a device to make a recording of public documents, among other things. In dismissing Mr. Smith's complaint, the circuit court ruled that West Virginia Code § 59-1-11(b)(2) (2018) permitted the circuit clerk's office to impose a one-dollar-per-page fee for photographs taken by an individual of public documents. On appeal, we disagree and find that the clear language of § 59-1-11(b)(2) limits the imposition of the statutory per-page fee to "transcripts, copies, and papers" actually "made by the clerk," and does not apply to photographs taken by a member of the public.
Mr. Smith is a freelance legal researcher and journalist who went to the Grant County Circuit Clerk's office in September 2018 to review and copy public records relating to four pending criminal cases. A deputy clerk gave Mr. Smith the requested file and Mr. Smith informed her that he intended to photograph the documents in the file. The deputy clerk responded that office policy prohibited him from using a camera to take pictures of the file's contents. Mr. Smith requested a copy of this policy and the deputy clerk referred him to Clerk Van Meter.
Clerk Van Meter informed Mr. Smith that she was required to charge him one dollar per page for copies of documents under West Virginia Code § 59-1-11(b)(2). Mr. Smith responded that he did not need copies of the documents, but that he intended to take digital photographs of the file. Clerk Van Meter reiterated that he could take the photos, but he would have to pay the one-dollar-per-page fee for each digital photo he took. Clerk Van Meter stated that this fee was required for any reproduction of any document held by the circuit clerk's office. Mr. Smith declined to pay the fee and left the office without taking photos of the documents.
On November 30, 2018, Mr. Smith mailed a FOIA request for the same documents to the Grant County Circuit Clerk's Office. He enclosed with his request five dollars to cover the cost of reproducing the documents and postage. Clerk Van Meter mailed Mr. Smith's money back to him along with a letter declining to provide the requested copies because (1) Mr. Smith's request lacked clarity2 and (2) the enclosed five-dollar bill was insufficient to cover the cost of reproduction of the requested documents.3 Specifically, Clerk Van Meter reiterated that she had to charge one dollar per page for reproductions of documents held by the circuit clerk's office under West Virginia Code § 59-1-11(b)(2). Mr. Smith responded that his FOIA request was not governed by § 59-1-11(b)(2), but by West Virginia Code § 29B-1-3(e) (2015),4 so the clerk's office was only permitted to charge a fee reasonably calculated to cover the actual cost of reproduction of the documents subject to the FOIA request.
At this point, Clerk Van Meter referred the matter to the Grant County Prosecuting Attorney, John G. Ours, who assumed the task of responding to Mr. Smith and mailed him a letter reiterating that the clerk was required to charge one dollar per page for copies under § 59-1-11(b)(2). Mr. Ours also noted that, even if that statute did not apply, five dollars was insufficient to cover the actual cost of reproduction because the requested documents included hundreds of pages.5 Mr. Smith responded to Mr. Ours in February 2019, repeating the same arguments he made previously. Neither Mr. Ours nor Clerk Van Meter fulfilled Mr. Smith's FOIA request.
On March 25, 2019, Mr. Smith filed a complaint in the Circuit Court of Grant County seeking declaratory and injunctive relief against Respondents. He requested the circuit court declare unlawful Clerk Van Meter's attempt to charge him a fee to photograph the public records to which he had access in the Grant County Clerk's office in September 2018. He also asked the court to enjoin Respondents from enforcing any policy "prohibiting anyone from using his or her own device to duplicate and/or make a recording of documents in the [Respondents’] possession." Finally, Mr. Smith sought to require defendants to establish a "reasonable fee" for duplication of public records under West Virginia Code § 29B-1-3(e). Respondents moved to dismiss Mr. Smith's complaint for failure to state a claim under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.
In a sparse order on July 1, 2019, the circuit court granted Respondents’ motion to dismiss. The circuit court concluded that West Virginia Code § 29B-1-3(e) allowed the clerk's office to "establish fees reasonable [sic] calculated to reimburse it for its actual cost" in reproducing records, that this Court's holding in King v. Nease6 permitted the clerk's office to "impose a search or retrieval fee in conjunction with a [FOIA] request,"7 and that West Virginia Code § 59-1-11(b)(2) allows the clerk's office to charge one dollar per page "for transcripts, copies, and papers made by the clerk for use in any other court or otherwise to go out of the office[.]" This appeal followed.
This Court has long held that "[w]here 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."8 The issue before us is solely a matter of statutory interpretation, so with this standard in mind, we proceed to address the parties’ arguments.
On appeal, Mr. Smith raises two arguments. First, he asks us to determine whether West Virginia Code § 59-1-11(b)(2) permits a circuit clerk to charge a one-dollar-per-page fee when private individuals take digital photographs of a public record to which they have access. Mr. Smith argues that the clerk may not charge such a fee, while Respondents argue that the clerk is required to charge such a fee under the plain language of the statute. For the reasons explained below, we agree with Mr. Smith.
Second, Mr. Smith asserts that the circuit court erred in failing to address Respondents’ refusal to comply with his FOIA requests. He contends that, when fulfilling a FOIA request, a circuit clerk may only charge a fee "reasonably calculated to reimburse it for its actual cost in making reproductions of records" under West Virginia Code § 29B-1-3. But we need not address this argument because Mr. Smith's FOIA request sought the exact same documents that he sought to photograph under West Virginia Code § 59-1-11(b)(2).
To consider whether West Virginia Code § 59-1-11(b)(2) permits a circuit clerk to charge a one-dollar-per-page fee when private individuals take digital photographs of a public record to which they have access, we first determine whether the statute is clear or ambiguous. On this point, we have held that "[w]hen 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."9 And, we have held that "[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation."10
On the subject of the fees charged by circuit clerks, West Virginia Code § 59-1-11 (2018) states, in relevant part:
We find no ambiguity, so we afford this statute its plain meaning. It says that the clerk shall charge one dollar per page for transcripts, copies, and papers "made by the clerk " for use in any court or otherwise to go out of the office. With this plain language, the statute is clear that the clerk is only permitted to charge a fee when the clerk actually makes the...
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