West Virginia Freedom of Information Act Application to Economic Development

1. West Virginia Freedom of Information Act Application to Economic DevelopmentWVEDCJanuary 23, 2019 John C. Stump 304.353.8196john.stump@steptoe-johnson.com Josh Jarrell 304.353.8136joshua.jarrell@steptoe-johnson.com Steptoe & Johnson PLLC Chase Tower, 17th Floor PO Box 1588 Charleston, West Virginia 25326

2. Freedom of Information Act • W. Va. Code 29B-1-1 • West Virginia’s state “FOIA” law. • Allows any person to request information from government bodies. • Key Sections • 29B-1-4: Exemptions • Document requests that government body can DENY. • 29B-1-5 Provides that a pubic entity violating FOIA may be compelled to pay attorneys’ fees. • 29B-1-6 provides that if custodian willfully violates FOIA the custodian is guilty of a misdemeanor with criminal penalties. *

3. FOIA - Compliance • FOIA Request • By any Person. • Directed to the custodian of records of any public body. • State “with reasonable specificity” the information sought. • May request information be provided in electronic form. *

4. FOIA - Compliance • FOIA Response • Within 5 business days “from demand” of records, custodian shall: 1. Furnish information requested; 2. Advise person making request of time and place for inspection and copying of materials; or 3. Deny the request stating the reason for denial. • File information with WV Secretary of State on 10th day of month following response. *

5. WV Code 29B-1-4 Exemptions 1. Trade secrets 2. Personal information in personal, medical files…. 3. Test questions, scoring keys, etc…. • Records of detection or investigation of crimes… 5. Information specifically exempted by statute…. 6. Records, documents etc. describing the location of historic, prehistoric, archaeological sites….. 7. Certain reports of entities that regulate financial institutions… 8. Internal memoranda… 9. Records dealing with preventing or mitigating terrorist attacks. *

6. WV Code 29B-1-4 Exemptions • Vulnerability assessments, response plans, etc. dealing with terrorist attacks. • Intelligence information or investigation documents dealing with terrorist attacks. • National security records dealing with terrorist attacks. • Computer, telecommunications, and network security information (such as passwords) developed to thwart terrorist attacks. • Security or disaster recovery plans, risk assessments, or tests. *

7. WV Code 29B-1-4 Exemptions • Architectural or infrastructure designs, maps, or other records of locations where computing or telecommunications necessary to the response to terrorist attacks is conducted. • Codes for security systems, etc. • Engineering plans and descriptions of public utilities. • Information about networks and telecommunications carriers. • Records about the design or operations of correctional facilities. *

8. Exemptions - Internal Memoranda • 29B-1-4(a)(8) Internal Memoranda • “Burden of proof falls on the public body asserting the exemption to the disclosure required . . . To demonstrate the express applicability . . . Such that the public record should be protected from disclosure.” Highland Min. Co. v. West Virginia Univ. School of Medicine, 774 S.E.2d 36 (2015). • Professor wrote series of articles linking surface mining to health problems. Highland wanted all documents related to preparation of those articles. WVU asserted “internal memoranda” exemption in 29B-1-4(a)(8). • Supreme Court found that WVU should have given Highland the opportunity to amend its requests rather than outright denying them as though all documents sought fell within 29B-1-4(a)(8) exemption. • To assert internal memoranda exemption you must show: (1) documents are pre-decisional; and, (2) deliberative to the decision making process. *

9. Exemptions - Internal Memoranda • Documents “reflecting advisory opinions, recommendations, and deliberations comprising part of the process by which governmental decisions and policies are formulated.” • The documents at issue must have some relationship to the making of policy/decisions. For example, written advice, opinions, and recommendations from one public body to another; and written advice, opinions, and recommendations to a public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process. • This exemption, like all others, is narrowly construed and exists not to benefit government officials, but rather, the public. (The rationale is that government officials will make better decisions if their deliberations can be shielded so that they may freely consider differing alternatives).

10. Exemptions - Internal Memoranda Tape recording of public meeting of city urban renewal authority did not constitute “internal memorandum” under the exemption. Veltri v. Charleston Urban Renewal Authority, 178 W. Va. 669 (1987). *

11. Exemptions - Personal Privacy • W. Va. Code 29b-1-4(a)(2) • “Information of a personal nature such as that kept in a personal, medicinal or similar file, if the public disclosure of the information would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in this particular instance.” • Two problems here: • What counts as information of a “personal nature”? • Once you understand it is of a “personal nature,” when do you know if the public interest requires disclosure? *

12. Exemptions - Personal Privacy • What is information of a “personal nature”? • Courts start with the primary purpose of this exemption, “to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Smith v. Bradley, 223 W. Va. 286 (2007). • Two recent examples found in case law • Compton v. City of South Charleston Policemen’s Pension and Relief Fund, 2012 WL 3104305 (W. Va. 2012) • Smith v. Bradley *

13. Exemptions - Personal Privacy • Smith v. Bradley • Fairmont State University decided not to renew a professor’s contract. • Professor sends FOIA request for un-redacted student evaluations, peer evaluations, and chair evaluations of all non-tenured faculty. • Court found that these job performance evaluations constituted information of a personal nature, and it was proper not to produce them under this exemption un-redacted. • However, the Court did note that redacted versions of these documents would have been proper had the Plaintiff requested such. *

14. Economic Development Exemption • W.Va Code § 5B-2-1 • Any documentary material, data or other writing made or received by the West Virginia Development Office or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing businessshall be exempt from the provisions of article one [§ § 29B-1-1 et seq.], chapter twenty-nine-b of this code: Provided, that any agreement entered into or signed by the development office or public body which obligates public funds shall be subject to inspection and copying pursuant to the provisions of said article as of the date the agreement is entered into, signed or otherwise made public.

15. Economic Development Exemption • W.Va Code § 5B-2-1 • WVDO Statute • Code section has never been fully litigated • Qualifies as “Information specifically exempted by statute”

16. Exemptions • Vaughn Index • When public body asserts documents are exempt from FOIA under any exemption then it must produce Vaughn Index to satisfy the burden of proof. • Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). • Index must provide relatively detailed justification as to why document is exempt, but need not compromise the privilege claimed. Farley v. Worley, 215 W. Va. 412 (2004). *

17. QUESTIONS? *