W. Va. Reg'l Jail & Corr. Facility Auth. v. Marcum

• Decision Date: 26 April 2017
• Docket Number: No. 15–1174,15–1174
• Citation: 799 S.E.2d 540
• Parties: WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, Petitioner v. Shane R. MARCUM, Respondent
• Court: West Virginia Supreme Court

799 S.E.2d 540

WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, Petitioner

v.Shane R. MARCUM, Respondent

No. 15–1174

Supreme Court of Appeals of West Virginia.

Submitted: April 4, 2017

Filed: April 26, 2017

Patrick Morrisey, Attorney General, Benjamin Freeman, Assistant Attorney General, Charleston, West Virginia, Attorneys for Petitioner

Paul M. Stroebel, Stroebel & Johnson, PLLC, Charleston, West Virginia, Attorney for Respondent

Leah Perry Macia, West Virginia Regional, Jail Authority, Petitioner

Vincent Trivelli, Morgantown, West Virginia, Attorney for Amicus Curiae, Communications Workers of America, AFL–CIO

Patrick Morrisey, Attorney General, John H. Boothroyd, Assistant Attorney General, Charleston, West Virginia, Attorneys for Amicus Curiae, West Virginia Division of Corrections

David Allen Barnette, Vivian H. Basdekis, Jackson Kelly, PLLC, Charleston, West Virginia, Attorneys for Amicus Curiae, West Virginia Broadcasters' Association

Davis, Justice:

The Petitioner in this matter, the West Virginia Regional Jail and Correctional Facility Authority ("the Regional Jail") brought this appeal from an order of the Circuit Court of Kanawha County. The circuit court's order required the Regional Jail turn over a videotape to the Respondent, Shane Marcum, pursuant to his request under the West Virginia Freedom of Information Act ("FOIA").¹ In this appeal, the Regional Jail contends that the videotape is exempt from disclosure under FOIA pursuant to W. Va. Code §§ 29B–1–4(a)(2) and (19) (2016) (Supp. 2016). After a careful review of the briefs and the appendix record, and listening to the argument of the parties, we reverse.²

I.FACTUAL AND PROCEDURAL HISTORY

The relevant facts in this proceeding are not in dispute. On February 27, 2015, Mr. Marcum was being held on felony charges in the Western Regional Jail in Cabell County, West Virginia. For reasons that have not been made clear by the parties, it was determined by authorities at the facility that Mr. Marcum had to be physically removed from his cell. At least four correctional officers were initially involved in what is called a "cell extraction."³ To carry out the cell extraction, the officers tossed two flash bang grenades into the cell.⁴ After tossing the grenades into the cell, the officers removed Mr. Marcum from his cell. The cell extraction and events immediately following were recorded on videotape by the Regional Jail.

As a result of alleged injuries he received during the cell extraction, Mr. Marcum filed a civil action against the Regional Jail in circuit court. That proceeding was subsequently removed to federal court, where it is now pending. During the proceeding in federal court, Mr. Marcum requested a copy of the videotape that recorded his cell extraction. The Regional Jail agreed to provide a copy of the videotape "subject to a protective order." Mr. Marcum refused to accept the videotape under protective order conditions. Instead, Mr. Marcum requested the videotape pursuant to FOIA. By letter dated July 24, 2015, the Regional Jail refused to turn over the videotape under FOIA on the grounds that it was exempt under W. Va. Code §§ 29B–1–4(a)(2) and (19).

In September 2015, Mr. Marcum filed a complaint for preliminary injunction and declaratory relief against the Regional Jail in circuit court. The complaint sought a court order requiring the Regional Jail turn over the cell extraction videotape under FOIA. Subsequent to a hearing on the matter, the circuit court entered an order on November 4, 2015, requiring the Regional Jail to produce the videotape to Mr. Marcum. This appeal of that order followed.

II.STANDARD OF REVIEW

In this proceeding, we are called upon to review a circuit court order that determined FOIA did not exempt disclosure of a cell extraction videotape. This issue presents a de novo review standard "because [it] requires an interpretation of West Virginia's FOIA[.]" Charleston Gazette v. Smithers , 232 W.Va. 449, 460, 752 S.E.2d 603, 614 (2013). We have long recognized 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." Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995).

III.DISCUSSION

The Regional Jail contends that its videotape of the cell extraction of Mr. Marcum is exempted from disclosure under FOIA pursuant to W. Va. Code §§ 29B–1–4(a)(2) and (19). Mr. Marcum argues that there is no language in either of the statutory provisions that exempt release of the videotape.

We begin by observing the framework for our statutory analysis. This Court has long 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.' " Huffman v. Goals Coal Co. , 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. Elder , 152 W.Va. 571, 165 S.E.2d 108 (1968) ). On the other hand, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew , 186 W.Va. 693, 414 S.E.2d 454 (1992). Further, as a general matter, "the words of a statute are to be given their ordinary and familiar significance and meaning[.]" Amick v. C & T Dev. Co., Inc ., 187 W.Va. 115, 118, 416 S.E.2d 73, 76 (1992). "It is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker , 196 W.Va. 535, 546–47, 474 S.E.2d 465, 476–77 (1996).

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[.]"). It is expressly provided under W. Va. Code § 29B–1–3(a) (2015)(Repl. Vol. 2015) that "[e]very person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by [W. Va. Code § 29(B)–1–4] of this article." It has been recognized that FOIA "seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." John Doe Agency v. John Doe Corp., 493 U.S. 146, 151–52, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989) (internal quotations and citation omitted). The presumption of disclosure of public records under FOIA is qualified by twenty-one categories of public records that are exempt from disclosure pursuant to W. Va. Code § 29B–1–4(a). The decisions of this Court have been clear in holding that "[t]he 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). Accord Farley v. Worley , 215 W.Va. 412, 420, 599 S.E.2d 835, 843 (2004). It also has been held that "[t]he party claiming exemption from the general disclosure requirement under West Virginia Code § 29B–1–4 has the burden of showing the express applicability of such exemption to the material requested." Syl. pt. 7, Queen v. West Virginia Univ. Hosps., Inc ., 179 W.Va. 95, 365 S.E.2d 375 (1987).

Although the Regional Jail raised two provisions under FOIA as exempting disclosure of the cell extraction videotape, the circuit court's order addressed only the exemption under W. Va. Code § 29B–1–4(a)(19). Because of our resolution of this provision, we need not address the provision the circuit court omitted, W. Va. Code § 29B–1–4(a)(2).

West Virginia Code § 29B–1–4(a)(19) was added to FOIA in 2009. This is the first opportunity we have had to review the provision. The text of the provision sets out the following:

(a) There is a presumption of public accessibility to all public records, subject only to the following categories of information which are specifically exempt from disclosure under the provisions of this article:

....

(19) Records of the Division of Corrections, Regional Jail and Correctional Facility Authority and the Division of Juvenile Services relating to design of corrections, jail and detention facilities owned or operated by the agency, and the policy directives and operational procedures of personnel relating to the safe and secure management of inmates or residents, that if released, could be used by an inmate or resident to escape a facility, or to cause injury to another inmate, resident or to facility personnel[.]

In the context of the issue presented to this Court, we find no ambiguity in the provision. It is apparent that this provision seeks to maintain the safety and security at correctional facilities by preventing public access to records that could be used by an inmate to escape from a facility, or to cause injury to someone in the facility.⁵ The Regional Jail contends that the contents of the cell extraction videotape satisfies the exemption under W. Va. Code § 29B–1–4(a)(19), because it "contains numerous images of the inside of the jail and the movement of various jail personnel, which, if released, would compromise the safety and security of the facility and the inmates and staff therein."

The issue of whether a videotape of a cell extraction of an inmate is exempt from disclosure, under public record statutes similar to our FOIA, has been addressed only by a few courts. The federal district court in Zander v. Department of Justice , 885 F.Supp.2d 1 (D.D.C. 2012), is one of the few courts to squarely address the issue.⁶ The plaintiff in Zander , a former federal prisoner, filed a complaint...