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Analysis by
a WVU law professor of the laws and your rights to Open Meetings &
Information
Open
Meetings and Sunshine Law
Freedom of Information Act
Sample
email or letter to request information from a government agency in West
Virginia: "To: employee who has the government record: This is a request under
the WV Freedom of Information Act for [copies of… /or/ the opportunity to see
and possibly copy] the following records: [e.g. File on xxx / Correspondence
between agency and yyy during 2004-2007 / Report titled zzz prepared
approximately Jan 2007]. If the information is in electronic format, I request
an electronic copy."
Links
on Federal Freedom of Information Act
CHAPTER
29B FREEDOM OF INFORMATION
ARTICLE
1. PUBLIC RECORDS.
§29B-1-1.
Declaration of policy.
Pursuant
to the fundamental philosophy of the American constitutional form of
representative government which holds to the principle that government is the
servant of the people, and not the master of them, it is hereby declared to be
the public policy of the state of West Virginia that all persons are, unless
otherwise expressly provided by law, entitled to full and complete information
regarding the affairs of government and the official acts of those who
represent them as public officials and employees. The people, in delegating
authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist
on remaining informed so that they may retain control over the instruments of
government they have created. To that end, the provisions of this article shall
be liberally construed with the view of carrying out the above declaration of
public policy.
§29B-1-2.
Definitions.
As used
in this article:
(1)
"Custodian" means the elected or appointed official charged with
administering a public body.
(2)
"Person" includes any natural person, corporation, partnership, firm
or association.
(3)
"Public body" means every state officer, agency, department,
including the executive, legislative and judicial departments, division,
bureau, board and commission; every county and city governing body, school
district, special district, municipal corporation, and any board, department,
commission council or agency thereof; and any other body which is created by
state or local authority or which is primarily funded by the state or local
authority.
(4)
"Public record" includes any writing containing information relating
to the conduct of the public's business, prepared, owned and retained by a
public body.
(5)
"Writing" includes any books, papers, maps, photographs, cards,
tapes, recordings or other documentary materials regardless of physical form or
characteristics.
§29B-1-3.
Inspection and copying.
(1) Every
person has a right to inspect or copy any public record of a public body in
this state, except as otherwise expressly provided by section four of this
article.
(2) A
request to inspect or copy any public record of a public body shall be made
directly to the custodian of such public record.
(3) The custodian
of any public records, unless otherwise expressly provided by statute, shall
furnish proper and reasonable opportunities for inspection and examination of
the records in his or her office and reasonable facilities for making memoranda
or abstracts therefrom, during the usual business hours, to all persons having
occasion to make examination of them. The custodian of the records may make
reasonable rules and regulations necessary for the protection of the records
and to prevent interference with the regular discharge of his or her duties. If
the records requested exist in magnetic, electronic or computer form, the
custodian of the records shall make such copies available on magnetic or
electronic media, if so requested.
(4) All
requests for information must state with reasonable specificity the information
sought. The custodian, upon demand for records made under this statute, shall
as soon as is practicable but within a maximum of five days not including
Saturdays, Sundays or legal holidays:
(a) Furnish
copies of the requested information;
(b)
Advise the person making the request of the time and place at which he or she
may inspect and copy the materials; or
(c) Deny
the request stating in writing the reasons for such denial.
Such a
denial shall indicate that the responsibility of the custodian of any public
records or public body to produce the requested records or documents is at an
end, and shall afford the person requesting them the opportunity to institute
proceedings for injunctive or declaratory relief in the circuit court in the
county where the public record is kept.
(5) The
public body may establish fees reasonably calculated to reimburse it for its
actual cost in making reproductions of such records.
[Notes
from webmaster:
State
& county health departments have established fees of 25 cents per
page (more for large pages) plus $50/hour search & compilation time, (1st
10 minutes free) 64 CSR 51-4 http://www.wvsos.com/csr/verify.asp?TitleSeries=64-51
State
Dept of Environmental Protection has established fees of 25 cents per
page (1st 20 pages free; more for large pages) plus $11 to $30 per
hour search & copying time (1st half hour free) http://www.wvsos.com/csr/verify.asp?TitleSeries=60-02
Jefferson
County Circuit Court
has ruled that local agencies may not charge to find the documents,
just to copy them; that charges may not exceed the actual costs; and the court
awarded over $5,000 in legal fees to a group which had been overcharged: case
no. 99-C-183
The law sets fees for documents at the
county clerk: §59-1-10(d) at $1.50 for one or 2 pages, plus $1 for each
additional page [at 8 ˝" x 14"], plus $1 for certifying the copy.
However a certified copy of a birth certificate, death certificate or marriage
license is $5.00 ]
§§29B-1-4.
Exemptions.
The following
categories of information are specifically exempt from disclosure under the
provisions of this article:
(1) Trade
secrets, as used in this section, which may include, but are not limited to,
any formula, plan pattern, process, tool, mechanism, compound, procedure,
production data, or compilation of information which is not patented which is
known only to certain individuals within a commercial concern who are using it
to fabricate, produce or compound an article or trade or a service or to locate
minerals or other substances, having commercial value, and which gives its
users an opportunity to obtain business advantage over competitors;
(2)
Information of a personal nature such as that kept in a personal, medical or
similar file, if the public disclosure thereof would constitute an unreasonable
invasion of privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance: Provided,
That nothing in this article shall be construed as precluding an individual
from inspecting or copying his own personal, medical or similar file;
(3) Test
questions, scoring keys and other examination data used to administer a
licensing examination, examination for employment or academic examination;
(4)
Records of law-enforcement agencies that deal with the detection and
investigation of crime and the internal records and notations of such
law-enforcement agencies which are maintained for internal use in matters
relating to law enforcement;
(5)
Information specifically exempted from disclosure by statute;
(6)
Records, archives, documents or manuscripts describing the location of
undeveloped historic, prehistoric, archaeological, paleontological and
battlefield sites or constituting gifts to any public body upon which the donor
has attached restrictions on usage or the handling of which could irreparably
damage such record, archive, document or manuscript;
(7)
Information contained in or related to examination, operating or condition
reports prepared by, or on behalf of, or for the use of any agency responsible
for the regulation or supervision of financial institutions, except those
reports which are by law required to be published in newspapers; and
(8)
Internal memoranda or letters received or prepared by any public body.
§29B-1-5.
Enforcement.
(1) Any
person denied the right to inspect the public record of a public body may
institute proceedings for injunctive or declaratory relief in the circuit court
in the county where the public record is kept.
(2) In
any suit filed under subsection one of this section, the court has jurisdiction
to enjoin the custodian or public body from withholding records and to order
the production of any records improperly withheld from the person seeking
disclosure. The court shall determine the matter de novo and the burden is on
the public body to sustain its action. The court, on its own motion, may view
the documents in controversy in camera before reaching a decision. Any
custodian of any public records of the public body found to be in noncompliance
with the order of the court to produce the documents or disclose the
information sought, may be punished as being in contempt of court.
(3)
Except as to causes the court considers of greater importance, proceedings
arising under subsection one of this section shall be assigned for hearing and
trial at the earliest practicable date.
§29B-1-6.
Violation of article; penalties.
Any
custodian of any public records who shall willfully violate the provisions of
this article shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than five hundred
dollars, or be imprisoned in the county jail for not more than ten days, or, in
the discretion of the court, by both such fine and imprisonment.
§29B-1-7.
Attorney fees and costs.
Any
person who is denied access to public records requested pursuant to this
article and who successfully brings a suit filed pursuant to section five of
this article shall be entitled to recover his or her attorney fees and court
costs from the public body that denied him or her access to the records.
Open Meetings
§6-9A-1.
Declaration of legislative policy.
The Legislature
hereby finds and declares that public agencies in this state exist for the singular
purpose of representing citizens of this state in governmental affairs, and it
is, therefore, in the best interests of the people of this state for the
proceedings of public agencies be conducted openly, with only a few clearly
defined exceptions. The Legislature hereby further finds and declares that the
citizens of this state do not yield their sovereignty to the governmental
agencies that serve them. The people in delegating authority do not give their
public servants the right to decide what is good for them to know and what is
not good for them to know. The people insist on remaining informed so that they
may retain control over the instruments of government created by them.
Open government
allows the public to educate itself about government decisionmaking through
individuals'' attendance and participation at government functions,
distribution of government information by the press or interested citizens, and
public debate on issues deliberated within the government.
Public access to
information promotes attendance at meetings, improves planning of meetings, and
encourages more thorough preparation and complete discussion of issues by
participating officials. The government also benefits from openness because
better preparation and public input allow government agencies to gauge public
preferences accurately and thereby tailor their actions and policies more
closely to public needs. Public confidence and understanding ease potential
resistance to government programs.
Accordingly, the
benefits of openness inure to both the public affected by governmental
decisionmaking and the decision makers themselves. The Legislature finds,
however, that openness, public access to information and a desire to improve
the operation of government do not require nor permit every meeting to be a
public meeting. The Legislature finds that it would be unrealistic, if not
impossible, to carry on the business of government should every meeting, every
contact and every discussion seeking advice and counsel in order to acquire the
necessary information, data or intelligence needed by a governing body were
required to be a public meeting. It is the intent of the Legislature to balance
these interests in order to allow government to function and the public to
participate in a meaningful manner in public agency decisionmaking.
§6-9A-2.
Definitions.
As used in this
article:
(1)
"Decision" means any determination, action, vote or final disposition
of a motion, proposal, resolution, order, ordinance or measure on which a vote
of the governing body is required at any meeting at which a quorum is present.
(2) "Executive
session" means any meeting or part of a meeting of a governing body which
is closed to the public.
(3) "Governing
body" means the members of any public agency having the authority to make
decisions for or recommendations to a public agency on policy or
administration, the membership of a governing body consists of two or more
members; for the purposes of this article, a governing body of the Legislature
is any standing, select or special committee, except the commission on special
investigations, as determined by the rules of the respective houses of the
Legislature.
(4)
"Meeting" means the convening of a governing body of a public agency
for which a quorum is required in order to make a decision or to deliberate
toward a decision on any matter which results in an official action. Meetings
may be held by telephone conference or other electronic means. The term meeting
does not include:
(A) Any meeting for
the purpose of making an adjudicatory decision in any quasi-judicial,
administrative or court of claims proceeding;
(B) Any on-site inspection of any project or program;
(C) Any political
party caucus;
(D) General
discussions among members of a governing body on issues of interest to the
public when held in a planned or unplanned social, educational, training,
informal, ceremonial or similar setting, without intent to conduct public
business even if a quorum is present and public business is discussed but there
is no intention for the discussion to lead to an official action; or
(E) Discussions by
members of a governing body on logistical and procedural methods to schedule
and regulate a meeting.
(5) "Official
action" means action which is taken by virtue of power granted by law,
ordinance, policy, rule, or by virtue of the office held.
(6) "Public
agency" means any administrative or legislative unit of state, county or
municipal government, including any department, division, bureau, office,
commission, authority, board, public corporation, section, committee,
subcommittee or any other agency or subunit of the foregoing, authorized by law
to exercise some portion of executive or legislative power. The term
"public agency" does not include courts created by article eight of
the West Virginia constitution or the system of family law masters created by
article four, chapter forty-eight-a of this code.
(7)
"Quorum" means the gathering of a simple majority of the constituent
membership of a governing body, unless applicable law provides for varying the
required ratio.
§6-9A-3.
Proceedings to be open; public notice of meetings.
Except as expressly
and specifically otherwise provided by law, whether heretofore or hereinafter
enacted, and except as provided in section four of this article, all meetings
of any governing body shall be open to the public. Any governing body may make
and enforce reasonable rules for attendance and presentation at any meeting
where there is not room enough for all members of the public who wish to
attend. This article does not prohibit the removal from a meeting of any member
of the public who is disrupting the meeting to the extent that orderly conduct
of the meeting is compromised: Provided, That persons who desire to
address the governing body may not be required to register to address the body
more than fifteen minutes prior to time the scheduled meeting is to commence.
Each governing body
shall promulgate rules by which the date, time, place and agenda of all
regularly scheduled meetings and the date, time, place and purpose of all
special meetings are made available, in advance, to the public and news media,
except in the event of an emergency requiring immediate official action.
Each governing body
of the executive branch of the state shall file a notice of any meeting with
the secretary of state for publication in the state register. Each notice shall
state the date, time, place and purpose of the meeting. Each notice shall be
filed in a manner to allow each notice to appear in the state register at least
five days prior to the date of the meeting.
In the event of an
emergency requiring immediate official action, any governing body of the
executive branch of the state may file an emergency meeting notice at any time
prior to the meeting. The emergency meeting notice shall state the date, time,
place and purpose of the meeting and the facts and circumstances of the
emergency.
Upon petition by
any adversely affected party any court of competent jurisdiction may invalidate
any action taken at any meeting for which notice did not comply with the
requirements of this section.
§6-9A-4.
Exceptions.
(a) The governing
body of a public agency may hold an executive session during a regular, special
or emergency meeting, in accordance with the provisions of this section. During
the open portion of the meeting, prior to convening an executive session, the
presiding officer of the governing body shall identify the authorization under
this section for holding the executive session and present it to the governing
body and to the general public, but no decision may be made in the executive
session.
(b) An executive
session may be held only upon a majority affirmative vote of the members
present of the governing body of a public agency. A public agency may hold an
executive session and exclude the public only when a closed session is required
for any of the following actions:
(1) To consider
acts of war, threatened attack from a foreign power, civil insurrection or
riot;
(2) To consider:
(A) Matters arising
from the appointment, employment, retirement, promotion, transfer, demotion,
disciplining, resignation, discharge, dismissal or compensation of a public
officer or employee, or prospective public officer or employee unless the
public officer or employee or prospective public officer or employee requests
an open meeting; or
(B) For the purpose
of conducting a hearing on a complaint, charge or grievance against a public
officer or employee, unless the public officer or employee requests an open
meeting. General personnel policy issues may not be discussed or considered in
a closed meeting. Final action by a public agency having authority for the
appointment, employment, retirement, promotion, transfer, demotion,
disciplining, resignation, discharge, dismissal or compensation of an
individual shall be taken in an open meeting;
(3) To decide upon
disciplining, suspension or expulsion of any student in any public school or
public college or university, unless the student requests an open meeting;
(4) To issue,
effect, deny, suspend or revoke a license, certificate or registration under
the laws of this state or any political subdivision, unless the person seeking
the license, certificate or registration or whose license, certificate or
registration was denied, suspended or revoked requests an open meeting;
(5) To consider the
physical or mental health of any person, unless the person requests an open
meeting;
(6) To discuss any
material the disclosure of which would constitute an unwarranted invasion of an
individual's privacy such as any records, data, reports, recommendations or
other personal material of any educational, training, social service,
rehabilitation, welfare, housing, relocation, insurance and similar program or
institution operated by a public agency pertaining to any specific individual
admitted to or served by the institution or program, the individual's personal
and family circumstances;
(7) To plan or
consider an official investigation or matter relating to crime prevention or
law enforcement;
(8) To develop
security personnel or devices;
(9) To consider
matters involving or affecting the purchase, sale or lease of property, advance
construction planning, the investment of public funds or other matters involving
commercial competition, which if made public, might adversely affect the
financial or other interest of the state or any political subdivision: Provided,
That information relied on during the course of deliberations on matters
involving commercial competition are exempt from disclosure under the open
meetings requirements of this article only until the commercial competition has
been finalized and completed: Provided, however, That
information not subject to release pursuant to the West Virginia freedom of
information act does not become subject to disclosure as a result of executive
session;
(10) To avoid the
premature disclosure of an honorary degree, scholarship, prize or similar
award;
(11) Nothing in
this article permits a public agency to close a meeting that otherwise would be
open, merely because an agency attorney is a participant. If the public agency
has approved or considered a settlement in closed session, and the terms of the
settlement allow disclosure, the terms of that settlement shall be reported by
the public agency and entered into its minutes within a reasonable time after
the settlement is concluded;
(12) To discuss any
matter which, by express provision of federal law or state statute or rule of
court is rendered confidential, or which is not considered a public record
within the meaning of the freedom of information act as set forth in article
one, chapter twenty-nine-b of this code.
§6-9A-5.
Minutes.
Each governing body
shall provide for the preparation of written minutes of all of its meetings.
Subject to the exceptions set forth in section four of this article, minutes of
all meetings except minutes of executive sessions, if any are taken, shall be
available to the public within a reasonable time after the meeting and shall include,
at least, the following information:
(1) The date, time
and place of the meeting;
(2) The name of
each member of the governing body present and absent;
(3) All motions,
proposals, resolutions, orders, ordinances and measures proposed, the name of the
person proposing the same and their disposition; and
(4) The results of
all votes and, upon the request of a member, pursuant to the rules, policies or
procedures of the governing board for recording roll call votes, the vote of
each member, by name.
§6-9A-6.
Enforcement by injunctions; actions in violation of article voidable;
voidability of bond issues.
The circuit court
in the county where the public agency regularly meets has jurisdiction to
enforce this article upon civil action commenced by any citizen of this state
within one hundred twenty days after the action complained of was taken or the
decision complained of was made. Where the action seeks injunctive relief, no
bond may be required unless the petition appears to be without merit or made with
the sole intent of harassing or delaying or avoiding return by the governing
body.
The court is
empowered to compel compliance or enjoin noncompliance with the provisions of
this article and to annul a decision made in violation of this article. An
injunction may also order that subsequent actions be taken or decisions be made
in conformity with the provisions of this article: Provided, That no
bond issue that has been passed or approved by any governing body in this state
may be annulled under this section if notice of the meeting at which the bond
issue was finally considered was given at least ten days prior to the meeting
by a Class I legal advertisement published in accordance with the provisions of
article three, chapter fifty-nine of this code in a qualified newspaper having
a general circulation in the geographic area represented by that governing
body.
In addition to or
in conjunction with any other acts or omissions which may be determined to be
in violation of this article, it is a violation of this article for a governing
body to hold a private meeting with the intention of transacting public
business, thwarting public scrutiny and making decisions that eventually become
official action.
Any order which
compels compliance or enjoins noncompliance with the provisions of this
article, or which annuls a decision made in violation of this article shall
include findings of fact and conclusions of law and shall be recorded in the
minutes of the governing body.
§6-9A-7.
Violation of article; criminal penalties; attorney fees and expenses in civil
actions.
(a) Any person who
is a member of a public or governmental body required to conduct open meetings
in compliance with the provisions of this article and who willfully and
knowingly violates the provisions of this article is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than five hundred
dollars: Provided, That a person who is convicted of a second or
subsequent offense under this subsection is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred dollars nor more
than one thousand dollars.
(b) A public agency
whose governing body is adjudged in a civil action to have conducted a meeting
in violation of the provisions of this article may be liable to a prevailing
party for fees and other expenses incurred by that party in connection with
litigating the issue of whether the governing body acted in violation of this
article, unless the court finds that the position of the public agency was
substantially justified or that special circumstances make an award of fees and
other expenses unjust.
(c) Where the
court, upon denying the relief sought by the complaining person in the action,
finds that the action was frivolous or commenced with the primary intent of
harassing the governing body or any member thereof or, in the absence of good
faith, of delaying any meetings or decisions of the governing body, the court
may require the complaining person to pay the governing body's necessary
attorney fees and expenses.
§§6-9A-8.
Acting by reference; written ballots.
(a) Except as
otherwise expressly provided by law, the members of a public agency may not
deliberate, vote, or otherwise take official action upon any matter by
reference to a letter, number or other designation or other secret device or
method, which may render it difficult for persons attending a meeting of the
public agency to understand what is being deliberated, voted or acted upon.
However, this subsection does not prohibit a public agency from deliberating,
voting or otherwise taking action by reference to an agenda, if copies of the
agenda, sufficiently worded to enable the public to understand what is being
deliberated, voted or acted upon, are available for public inspection at the meeting.
(b) A public agency
may not vote by secret or written ballot.
§6-9A-9.
Broadcasting or recording meetings.
(a) Except as
otherwise provided in this section, any radio or television station is entitled
to broadcast all or any part of a meeting required to be open.
(b) A public agency
may regulate the placement and use of equipment necessary for broadcasting,
photographing, filming or recording a meeting, so as to prevent undue
interference with the meeting. The public agency shall allow the equipment to
be placed within the meeting room in such a way as to permit its intended use,
and the ordinary use of the equipment may not be declared to constitute undue
interference: Provided, That if the public agency, in good faith,
determines that the size of the meeting room is such that all the members of
the public present and the equipment and personnel necessary for broadcasting,
photographing, filming and tape-recording the meeting cannot be accommodated in
the meeting room without unduly interfering with the meeting and an adequate
alternative meeting room is not readily available, then the public agency,
acting in good faith and consistent with the purposes of this article, may
require the pooling of the equipment and the personnel operating it.
§6-9A-10.
Open governmental meetings committee.
The West Virginia
ethics commission, pursuant to subsection (j), section one, article two,
chapter six-b of this code, shall appoint from the membership of the commission
a subcommittee of three persons designated as the West Virginia ethics
commission committee on open governmental meetings. The chairman shall
designate one of the persons to chair the committee. In addition to the three
members of the committee, two additional members of the commission shall be designated
to serve as alternate members of the committee.
The chairman of the
committee or the executive director shall call meetings of the committee to act
on requests for advisory opinions interpreting the West Virginia open
government meetings act. Advisory opinions shall be issued in a timely manner,
not to exceed thirty days.
§6-9A-11.
Request for advisory opinion; maintaining confidentiality.
(a) Any governing
body or member thereof subject to the provisions of this article may seek advice
and information from the executive director of the West Virginia ethics
commission or request in writing an advisory opinion from the West Virginia
ethics commission committee on open governmental meetings as to whether an
action or proposed action violates the provisions of this article. The
executive director may render oral advice and information upon request. The
committee shall respond in writing and in an expeditious manner to a request
for an advisory opinion. The opinion shall be binding on the parties requesting
the opinion.
(b) Any governing
body or member thereof that seeks an advisory opinion and acts in good faith
reliance on the opinion has an absolute defense to any civil suit or criminal
prosecution for any action taken in good faith reliance on the opinion unless
the committee was willfully and intentionally misinformed as to the facts by
the body or its representative.
(c) The committee
and commission may take appropriate action to protect from disclosure
information which is properly shielded by an exception provided for in section
four of this article.
§6-9A-12.
Duty of attorney general, secretary of state, clerks of the county commissions
and city clerks or recorders.
It is the duty of
the attorney general to compile the statutory and case law pertaining to this
article and to prepare appropriate summaries
and interpretations for the purpose of informing all public officials
subject to this article of the requirements of this article. It is the duty of
the secretary of state, the clerks of the county commissions, joint clerks of
the county commissions and circuit courts, if any, and the city clerks or
recorders of the municipalities of the state to provide a copy of the material
compiled by the attorney general to all elected public officials within their
respective jurisdictions. The clerks or recorders will make the material
available to appointed public officials. Likewise, it is their respective
duties to provide a copy or summary to any newly appointed or elected person
within thirty days of the elected or appointed official taking the oath of
office or an appointed person's start of term.