IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
May 21, 2015
released at 3:00 p.m.
No. 14-0370 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
HIGHLAND MINING COMPANY,
Plaintiff Below, Petitioner
v.
WEST VIRGINIA UNIVERSITY
SCHOOL OF MEDICINE,
Defendant Below, Respondent
Appeal from the Circuit Court of Monongalia County
The Honorable Phillip D. Gaujot, Judge
Civil Action No. 12-C-275
AFFIRMED, IN PART; REVERSED, IN PART;
AND REMANDED
Submitted: March 4, 2015
Filed: May 21, 2015
Christopher B. Power, Esq. Carte P. Goodwin, Esq.
Robert M. Stonestreet, Esq. Johnny M. Knisely II, Esq.
Babst, Calland, Clements and Zomnir, PC Benjamin B. Ware, Esq.
Charleston, West Virginia Elise N. McQuain, Esq.
Attorneys for Petitioner Goodwin & Goodwin, LLP
Charleston, West Virginia
Attorneys for Respondent
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision
of this case.
SENIOR STATUS JUSTICE MCHUGH sitting by temporary assignment.
JUSTICE KETCHUM concurs in part, dissents in part, and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “‘“The disclosure provision of this State’s Freedom of Information
Act, W.Va. Code, 29B-1-1 et seq., as amended, [is] to be liberally construed, and the
exemptions to such Act are to be strictly construed. W.Va. Code, 29B-1-1.” Syl. Pt. 4,
Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).’ Syl. pt. 5, Queen v. West
Virginia University Hospitals, 179 W.Va. 95, 365 S.E.2d 375 (1987).” Syl. Pt. 1, Daily
Gazette Co. v. W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996).
3. “W.Va. Code, [§ 29B-1-4(a)(8)], which exempts from disclosure
‘internal memoranda or letters received or prepared by any public body’ specifically
exempts from disclosure only those written internal government communications
consisting of advice, opinions and recommendations which reflect a public body’s
deliberative, decision-making process; 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. W.Va. Code, [§ 29B-1-4(a)(8)] does not exempt
from disclosure written communications between a public body and private persons or
entities where such communications do not consist of advice, opinions or
recommendations to the public body from outside consultants or experts obtained during
i
the public body’s deliberative, decision-making process.” Syl. Pt. 4, Daily Gazette Co. v.
W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996).
4. West Virginia’s Freedom of Information Act, West Virginia Code §
29B-1-4(a)(8) (2012), exempts from disclosure “internal memoranda or letters received
or prepared by any public body” as defined by West Virginia Code § 29B-1-2(3) (2012).
5. To invoke the “internal memoranda” exemption set forth in West
Virginia Code § 29B-1-4(a)(8) (2012) successfully, the public body must show that in the
context in which the materials are prepared or considered, the documents are both
predecisional and deliberative to its decision-making process. Predecisional documents
are prepared in order to assist a public body decisionmaker in arriving at his or her
decision. Deliberative material reflects the give-and-take of the consultative process, by
revealing the manner in which the public body evaluates possible alternatives relevant to
the decisional process.
6. “The primary purpose of the invasion of privacy exemption to the
Freedom of Information Act, W.Va.Code, [§ 29B-1-4(a)(2)], 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).
ii
7. The West Virginia Freedom of Information Act does not provide an
“academic freedom” exemption to its general disclosure provision, West Virginia Code §
29B-1-3 (2012).
8. “A statute, or an administrative rule, may not, under the guise of
‘interpretation,’ be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer
Advocate Div. v. Pub. Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989).
9. “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).
10. “Pursuant to West Virginia Code § 29B-1-3(5) (2012), a public body
is vested with the authority and discretion to impose a search or retrieval fee in
iii
connection with a Freedom of Information Act request to provide public records provided
that such fee is reasonable.” Syl. Pt. 2, King v. Nease, 233 W.Va. 252, 757 S.E.2d 782
(2014).
11. “For a person to have brought a suit for the disclosure of public
records under the West Virginia Freedom of Information Act (FOIA), as permitted by
W.Va. Code § 29B-1-5 (1977) (Repl.Vol.1998), so as to entitle him/her to an award of
attorney’s fees for “successfully” bringing such suit pursuant to W.Va. Code § 29B-1-7
(1992) (Repl.Vol.1998), he/she need not have prevailed on every argument he/she
advanced during the FOIA proceedings or have received the full and complete disclosure
of every public record he/she wished to inspect or examine. An award of attorney’s fees
is proper even when some of the requested records are ordered to be disclosed while
others are found to be exempt from disclosure or are released in redacted form. In the
final analysis, a successful FOIA action, such as would warrant an award of attorney’s
fees as authorized by W.Va. Code § 29B-1-7, is one which has contributed to the
defendant’s disclosure, whether voluntary or by order of court, of the public records
originally denied the plaintiff.” Syl. Pt. 7, Daily Gazette Co. v. W.Va. Dev. Office, 206
W.Va. 51, 521 S.E.2d 543 (1999).
iv
Workman, Chief Justice:
Petitioner Highland Mining Company (“Highland”) filed this civil action
under the West Virginia Freedom of Information Act (“FOIA”), West Virginia Code §§
29B-1-1 to -7 (2012), seeking disclosure of public records from Respondent West
Virginia University School of Medicine (“WVU”). The FOIA requests focused on
documents related to several articles co-authored by WVU Associate Professor Michael
Hendryx, Ph.D., suggesting that environmental impacts of surface coal mining play a role
in the health problems of the area’s residents. The parties litigated this matter for two
years in the Circuit Court of Monongalia County; WVU released certain documents to
Highland but withheld certain other documents, either in whole or in part, claiming they
were statutorily exempt. Finally, the circuit court granted summary judgment in favor of
WVU, and dismissed this action.
On appeal to this Court, Highland raises several assignments of error and
argues the circuit court’s order should be reversed because it is based upon an
unprecedented expansion of the FOIA exemptions. Upon review, we affirm, in part;
reverse, in part; and remand the case for further proceedings. For the reasons discussed
below, this Court finds: (1) WVU may invoke the FOIA’s “internal memoranda”
exemption set forth in West Virginia Code § 29B-1-4(a)(8) to withhold documents that
reflect Professor Hendryx’s deliberative process; (2) WVU may not claim an “academic
freedom” privilege to avoid the plain language of the FOIA; (3) the FOIA’s “personal
1
privacy” exemption set forth in West Virginia Code § 29B-1-4(a)(2) is not applicable to
documents containing anonymous peer review comments of the draft articles but those
documents are still exempt from disclosure under the FOIA’s “internal memoranda”
exemption; (4) Highland should have been afforded the opportunity to modify its FOIA
requests before the circuit court dismissed the action; and (5) the circuit court must issue
a ruling on Highland’s request for attorney fees and costs. Accordingly, we remand this
matter for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
Highland submitted extensive FOIA requests to WVU on February 1, 2012.
Highland requested documents related to eight articles co-authored by Professor
Hendryx, Director of the West Virginia Rural Health Research Center, with WVU’s
School of Medicine’s Department of Community Medicine. In those articles, Professor
Hendryx suggested there was a connection between surface coal mining and birth defects,
cancer, and poor quality of life in the region. 1 Highland requested essentially all
1
One of these articles sets forth the following conclusions:
Results indicate that previously documented HRQOL
[Health Related Quality of Life] disparities in Appalachia’s
coal mining areas are concentrated in MTM [Mountaintop
Mining] zones in the central part of the region. These
disparities partly reflect the chronic socioeconomic
weaknesses inherent in coal-dependent economies and
highlight the need for efforts at economic diversification in
these areas. However, significant disparities persist after
control for these risks and suggest that the environmental
(continued . . .)
2
documents related to the initiation, preparation and publication of Professor Hendryx’s
articles. 2
impacts of MTM may also play a role in the health problems
of the area’s population. In April 2010, the EPA
[Environmental Protection Agency] issued new guidance
regulating MTM that recognized the environmental and
community health costs imposed by this practice: the
guidance was intended to make new MTM permits much
more difficult to obtain. Several weeks after this ruling, the
first MTM permit application to come before the EPA was
nevertheless approved, leading to concerns from
environmental communities that the rules would not be
interpreted or enforced as intended. Our results contribute to
the evidence base in support of the April EPA decision.
Zullig, K.J. and Hendryx, M., et al., Health-Related Quality of Life Among Central
Appalachian Residents in Mountaintop Mining Counties, 101, No. 5 Am. J. Pub. Health
848, 852 (May 2011) (footnotes omitted).
2
Highland submitted two FOIA requests on the same day. In one FOIA request
(referred to by the parties as the “subpoena-based FOIA request”), Highland requested
the release of the same information that had been the subject of three subpoenas
previously served on WVU by Highland in December of 2011. Articles co-authored by
Professor Hendryx were used to challenge Highland’s proposal to expand its Reylas
surface coal mine in Logan County, West Virginia, in a civil action filed in the United
States District Court for the Southern District of West Virginia. Ohio Valley Environ.
Coal., Inc., et al. v. U.S. Army Corps. of Eng’s, Civil Action No. 3:11-cv-0149 (S.D.
W.Va. 2011). The plaintiffs in that litigation sought to add a new claim to their complaint
based upon adverse health effects associated with surface coal mining. Highland served
three subpoenas on non-party WVU seeking information regarding the three articles cited
by the plaintiffs in that lawsuit. After the district court denied the plaintiffs’ motion to
add health-based claims to their complaint, Highland withdrew the subpoena request in
January of 2012. However, Highland advised WVU that it would file a FOIA request
seeking the same information.
In the subpoena-based FOIA request, Highland requested all documents related to
the initiation, preparation and publication of those articles; it requested the curriculum
vitae of the study authors, the data used in the statistical analysis presented in the subject
(continued . . .)
3
By e-mails dated March 2, 2012, WVU refused to release any documents
responsive to the FOIA requests. WVU asserted the documents were exempt from
disclosure under the following FOIA exemptions: (1) information of a personal nature,
West Virginia Code § 29B-1-4(a)(2); (2) information specifically exempt from disclosure
by statute, West Virginia Code § 29B-1-4(a)(5); (3) internal memoranda, West Virginia
Code § 29B-1-4(a)(8); and (4) trade secrets, West Virginia Code § 29B-1-4(a)(1).
On April 12, 2012, Highland instituted this action against WVU, seeking
disclosure of the documents it requested pursuant to the FOIA. WVU filed a motion to
dismiss on August 3, 2012, claiming the FOIA requests were overly broad and unduly
burdensome; Highland filed a motion for summary judgment on September 11, 2012.
Following a hearing on these motions, the circuit court rejected WVU’s claim of undue
burden. The circuit court stated WVU was “stonewalling” Highland by refusing to
provide any responsive documents. By order entered November 7, 2012, the circuit court
denied WVU’s motion to dismiss and deferred a ruling on Highland’s motion for
articles, including data discussed but not shown, documents and communications related
to the selection or rejection of particular mining areas to be examined in the studies,
communications with members of specifically-identified third-party organizations in the
course of preparing the articles, and documents related to the door-to-door health
interviews conducted pursuant to the Self-Reported Cancer Study, including sample
interview forms and the completed forms.
In its other FOIA request (referred to by the parties as the “communications FOIA
request”), Highland requested letters, e-mails and other communications sent to or from
Professor Hendryx pertaining to five other articles that he co-authored. In addition, the
communications FOIA request sought peer review comments on drafts of Professor
Hendryx’s articles.
4
summary judgment. The circuit court required that WVU release any responsive
information to Highland, and if any responsive documents were withheld from disclosure
or redacted, that WVU provide a Vaughn index3 and explanative affidavit.
Thereafter, WVU retained the services of a document management
company to electronically manage the production of documents for Highland’s FOIA
requests. Over the course of this litigation, WVU has made five productions of
documents to Highland, producing some 2,364 documents, totaling 11,090 pages. Four of
those document productions 4 included a separate Vaughn index and corresponding
affidavit, explaining WVU’s decision to redact 119 documents and withhold 772
documents.
3
See Syl. Pt. 6, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004) (“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. The Vaughn index need not be so detailed that it compromises the
privilege claimed. The public body must also submit an affidavit, indicating why
disclosure of the documents would be harmful and why such documents should be
exempt. Syllabus point 3 of Daily Gazette Co., Inc. v. West Virginia Development Office,
198 W.Va. 563, 482 S.E.2d 180 (1996), is hereby expressly modified.”).
4
The first Vaughn index listed 121 documents WVU withheld on the basis they
were not considered “public records” subject to the FOIA; WVU later withdrew that
justification for withholding any documents. Under the FOIA, a “‘[p]ublic record’
includes any writing containing information relating to the conduct of the public’s
business, prepared, owned and retained by a public body.” W.Va. Code § 29B-1-2(4).
5
On April 3, 2013, Highland filed a renewed motion for summary judgment,
arguing the Vaughn indices that WVU provided were facially insufficient and that most,
if not all, of the exemptions cited by WVU were not applicable. Following briefing, the
circuit court held a hearing on this motion. On May 30, 2013, the circuit court entered an
“Agreed Order Regarding Preparation of Sample Vaughn Index.” The circuit court
required WVU to provide a sample Vaughn index with respect to a limited number of
withheld documents; this Vaughn index was to include a more detailed explanation of
each withheld document, specifically, how each cited exemption applied to justify the
respective withholding.
On July 17, 2013, WVU provided the sample Vaughn index and the
affidavit of WVU’s associate general counsel. The sample Vaughn index listed ninety-
three documents that were redacted or withheld from production. According to WVU,
some documents were withheld on the basis of the FOIA’s “internal memoranda”
exemption, some documents were withheld on the basis of “academic freedom” privilege,
and some documents were withheld on the basis of the FOIA’s “trade secret” exemption.
On November 6, 2013, the circuit court entered an “Agreed Order
Regarding Briefing on Outstanding Issues,” pursuant to which it required both parties to
file renewed motions for summary judgment. Thereafter, the parties filed briefs and
identified those documents listed on the sample Vaughn index they wanted the circuit
court to review in camera.
6
In Highland’s memorandum of law in support of its renewed motion for
summary judgment, Highland provided the following factual background regarding its
request for documents concerning Professor Hendryx’s work:
At all relevant times, Michael Hendryx, Ph.D., was a
professor employed by the defendant West Virginia
University School of Medicine (“WVU”) who holds degrees
in psychology but is not a medical doctor, toxicologist, or
epidemiologist. Prof. Hendryx was the Director of the West
Virginia Rural Health Research Center, where he and his
colleagues received public funds to research rural health
issues. In that capacity, Hendryx published taxpayer-funded
papers such as those that are the subject of the FOIA
Requests, focused on linking coal mining and adverse health
impacts. His goal – in his own words – is to convince
“politicians” that West Virginia “can have a better economy if
we work to create a more diverse economy that does not
depend on coal.” He further hopes his studies help eliminate
mountaintop removal mining and focus policymakers away
from coal and towards “cleaner” forms of energy. He thinks
that “tighter standards on emissions controls is an important
outcome of [his] research.” He hopes “to get [his papers]
more in the eyes of state policy makers” so that “the
Appalachian people and governments could consider whether
our reliance on coal mining for the economy is a good idea or
not.” (footnotes and citations omitted).
Highland requested that the circuit court order WVU to provide all responsive documents
listed on the sample Vaughn index, arguing they do not fall under any applicable FOIA
exemption. Highland also requested that the circuit court order WVU to confer with
Highland regarding the retrieval and review of additional responsive materials that have
yet to be gathered in response to the FOIA request. Finally, Highland asserted the circuit
7
court should award it attorney fees and costs in accordance with West Virginia Code §
29B-1-7 because WVU improperly denied Highland access to the public records.
In WVU’s memorandum of law in support of its renewed motion for
summary judgment, WVU argued:
The majority of the documents were withheld or
redacted because they contain the preliminary deliberations
and research of an academic professor. Specifically, these
documents include draft research papers and correspondence
between co-authors with comments or suggestions regarding
the drafts themselves. Like other state employees (perhaps
even more so), these faculty members must be permitted the
latitude to craft and hone their work in an environment that
fosters the free exchange of ideas.
Thus, WVU claimed the documents withheld were exempt from disclosure under the
“internal memoranda” exemption of the FOIA, and/or an “academic freedom” privilege.5
WVU also argued that Highland’s FOIA requests were unduly burdensome because
WVU identified over 240,000 documents that were potentially responsive to Highland’s
requests and “[t]o date, WVU [had] reviewed 43,733 documents in a process that . . .
spanned the pendency of this case.”
5
In this pleading, WVU did not contend the documents were withheld based on
the FOIA’s “trade secret” exemption. WVU stated that although this exemption had been
asserted previously, it no longer believed the circuit court had to specifically address this
issue because the same documents covered by the “trade secret” exemption were subject
to other exemptions asserted by WVU.
8
Following an in camera review of the documents,6 the circuit court entered
an order on March 19, 2014, granting summary judgment to WVU and denying
Highland’s cross-motion. The circuit court held that WVU had properly refused to
provide all withheld and redacted documents on the basis of: (1) the FOIA’s “internal
memoranda” exemption found at West Virginia Code § 29B-1-4(a)(8); (2) an “academic
freedom” privilege it incorporated into the FOIA’s “personal privacy” exemption found
at West Virginia Code § 29B-1-4(a)(2); and/or (3) the FOIA requests were unduly
burdensome. The circuit court did not address Highland’s motion for attorney fees and
costs.
On appeal to this Court, Highland raises eight assignments of error. 7
Highland urges this Court to reverse the order of the circuit court and find that WVU
6
We note the availability and scope of in camera review is within the discretion of
the circuit court. Such review offers a check on the accuracy and honesty of the public
body’s asserted exemptions. In camera review is conducted incident to, rather than as a
substitute for, the Vaughn index.
7
Highland contends: (1) the “internal memoranda” exemption under the FOIA
does not apply to matters involving scientific research and publication of articles by state
university professors; (2) there is no “academic freedom” exemption under the FOIA; (3)
the guarantee of a “thorough and efficient system of free schools” under the West
Virginia Constitution does not extend to institutions of higher education such as WVU,
and cannot serve as the basis for an “academic freedom” exemption under the FOIA; (4)
the “personal privacy” exemption under the FOIA cannot be applied when no personal or
identifying information is sought or threatened to be released; (5) the circuit court failed
to impose the burden of proof on WVU to establish the applicability of the cited FOIA
exemptions; (6) WVU either waived its reliance on the “trade secret” exemption under
the FOIA or failed to establish it; (7) the circuit court erred in reversing its earlier ruling
and finding – nearly two years after this action was filed – that Highland’s FOIA requests
(continued . . .)
9
must provide the documents requested below. Highland maintains it needs this
information in order to evaluate the internal validity of the studies and the conclusions
reached in Professor Hendryx’s articles. Highland also requests that it be granted its
reasonable attorney fees and costs incurred in prosecuting this action, pursuant to West
Virginia Code § 29B-1-7.
II. STANDARD OF REVIEW
“Summary judgment is the preferred method of resolving cases brought
under FOIA.” Farley v. Worley, 215 W.Va. 412, 418, 599 S.E.2d 835, 841 (2004)
(quoting Evans v. Office of Pers. Mgmt., 276 F.Supp.2d 34, 37 (D.D.C.2003)). An order
granting summary judgment engenders plenary review. “A circuit court’s entry of
summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
III. DISCUSSION
The FOIA requires the release of public records upon request. See AT&T
Commc’ns of W.Va., Inc. v. Pub. Serv. Comm’n, 188 W.Va. 250, 253, 423 S.E.2d 859,
862 (1992) (“The general policy of th[e] act is to allow as many public records as
possible to be made available to the public.” (footnote omitted)).
were unduly burdensome; and (8) the circuit court should have awarded Highland
attorney fees and costs as a successful FOIA litigant. For the sake of brevity, this Court
has consolidated these assignments of error.
10
Pursuant to the FOIA, “[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 § 29B-1-4][.]” W.Va. Code, § 29B-1-3(1). A FOIA requester is not
required to explain why a record should be disclosed or for what purpose a record is
being requested. 8 The FOIA sets forth nineteen specific exemptions to its general
disclosure provisions. See id. § 29B-1-4.
This Court has made clear that the FOIA’s exemptions are to be strictly
construed, while the FOIA’s disclosure provisions are to be liberally construed:
“‘The disclosure provision of this State’s Freedom of
Information Act, W.Va. Code, 29B-1-1 et seq., as amended,
[is] to be liberally construed, and the exemptions to such Act
are to be strictly construed. W.Va. Code, 29B-1-1.’ Syl. Pt. 4,
Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).”
Syl. pt. 5, Queen v. West Virginia University Hospitals, 179
W.Va. 95, 365 S.E.2d 375 (1987).
Syl. Pt. 1, Daily Gazette Co. v. W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996)
(“Daily Gazette I”). The burden of proof falls on the public body asserting the exemption
to demonstrate that the public record should be protected from disclosure: “The party
claiming exemption from the general disclosure requirement under West Virginia Code §
8
An exception to this general rule occurs when a request pertains to documents
falling under the FOIA’s “personal privacy” exemption, West Virginia Code § 29B-1
4(a)(2). As discussed later in this opinion, we have crafted a two-pronged test to establish
whether disclosure would result in an unwarranted invasion of privacy. See Hechler v.
Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).
11
29B-1-4 has the burden of showing the express applicability of such exemption to the
material requested.”9 Syl. Pt. 7, Queen, 179 W.Va. at 95, 365 S.E.2d at 375.
With this background to guide us, we now address the two FOIA
exemptions at issue in this appeal, 10 whether the FOIA requests are unduly burdensome
to WVU, and Highland’s request for attorney fees and costs.
A. The FOIA’s Internal Memoranda Exemption
The principal statutory provision at issue in this case, West Virginia Code §
29B-1-4(a)(8) provides: “[i]nternal memoranda or letters received or prepared by any
public body” are specifically exempt from disclosure under the FOIA. Through the
development of case law, this FOIA exemption is commonly referred to as the
“deliberative process” exemption and we use the terms interchangeably. The precise
question presented here is an issue of first impression for this Court: whether a state
9
We promptly dispose of Highland’s assignment of error that the circuit court
failed to impose the burden of proof on WVU to establish the applicability of the FOIA
exemptions it asserted. The appendix record reveals the circuit court properly held WVU
to its burden: WVU produced multiple, detailed Vaughn indices (e.g., the index attached
to the fourth production of documents was fifty-two pages); filed numerous briefs on the
merits of its claimed exemptions; participated in oral arguments; and submitted
documents for the circuit court’s in camera review.
10
In Highland’s brief to this Court, it argues that WVU either waived its reliance
on the “trade secret” exemption under FOIA or failed to establish it. Because WVU does
not argue how the “trade secret” exemption may apply to any documents withheld in this
case, we agree. See generally Addair v. Bryant, 168 W.Va. 306, 316, 284 S.E.2d 374, 382
(1981) (holding this Court may deem as waived any issue not argued in party’s appellate
brief).
12
university may invoke the “internal memoranda” exemption with respect to documents
related to its professor’s scientific/academic research. The parties do not cite any
precedent interpreting other states’ FOIAs directly on point.
We begin our analysis with our leading case on this issue, Daily Gazette I.
A newspaper made FOIA requests to the West Virginia Development Office seeking
information involving the Development Office’s deliberations about whether to support a
proposed industrial plant in Mason County, West Virginia. In response, the Development
Office released certain documents but withheld others on the ground they were “internal
memoranda” exempt from disclosure under the FOIA. 198 W.V. at 567, 482 S.E.2d at
566. We set forth the criteria courts must apply when addressing the FOIA’s “internal
memoranda” exemption in syllabus point four of Daily Gazette I:
W.Va.Code, [§ 29B-1-4(a)(8)],11 which exempts from
disclosure “internal memoranda or letters received or
prepared by any public body” specifically exempts from
disclosure only those written internal government
communications consisting of advice, opinions and
recommendations which reflect a public body’s deliberative,
decision-making process; 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. W.Va.
Code, [§ 29B-1-4(a)(8)] does not exempt from disclosure
written communications between a public body and private
persons or entities where such communications do not consist
of advice, opinions or recommendations to the public body
11
The syllabus point cites West Virginia Code § 29B-1-4(8) (1977), which
contains the same language as West Virginia Code § 29B-1-4(a)(8) (2012).
13
from outside consultants or experts obtained during the public
body’s deliberative, decision-making process.
198 W.Va. at 575, 482 S.E.2d at 192 (footnote added).
In Daily Gazette I, we recognized the relationship between West Virginia’s
FOIA “internal memoranda” exemption and the federal FOIA counterpart, which
exempts from public disclosure “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency[.]” 5 U.S.C. § 552(b)(5) (1994). 198 W.Va. at 571, 482 S.E.2d 188. This federal
FOIA exemption “preserves to government agencies ‘such recognized evidentiary
privileges as the attorney-client privilege, the attorney work-product privilege, and the
executive “deliberative process” privilege.’ Schell [v. U.S. Dep’t of Justice], 843 F.2d
[933] at 939 [(6th Cir. 1988)] (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th
Cir. 1980)).” Daily Gazette I, 198 W.Va. at 571, 482 S.E.2d at 188. We acknowledged
the “deliberative process” privilege wording of the federal FOIA differs from that of
West Virginia’s FOIA. Id. Nevertheless, we found federal precedent useful in construing
our FOIA.
In Daily Gazette I, we cited a seminal decision from the United States
Supreme Court on the “deliberative process” privilege, N.L.R.B. v. Sears, Roebuck & Co.,
421 U.S. 132 (1975):
14
[t]he cases uniformly rest the [deliberative process] privilege
on the policy of protecting the “decision making processes of
government agencies,” . . . and focus on documents
“reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.” . . . The
point, plainly made in [S. Rep. No. 813, 89th Cong., 1st Sess. 9
(1965)], is that the “frank discussion of legal or policy
matters” in writing might be inhibited if the discussion were
made public; and that the “decisions” and “policies
formulated” would be the poorer as a result.
Daily Gazette I, 198 W.Va. at 572, 482 S.E.2d at 189 (quoting Sears Roebuck, 421 U.S.
at 150).
The “deliberative process” privilege is designed to protect the quality of
government decision-making by ensuring that it is not done “in a fishbowl.” EPA v.
Mink, 410 U.S. 73, 87 (1973), superceded by statute, Freedom of Information Act, 5
U.S.C. § 552(b)(1) (2002). This FOIA exemption encourages free discussion of
alternatives, and “insulates against the chilling effect likely were officials to be judged
not on the basis of their final decisions, but ‘for matters they considered before making
up their minds.’” City of Virginia Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247,
1253 (4th Cir. 1993) (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772-73 (D.C.
Cir. 1978), overruled in part on other grounds, Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 670 F.2d 1051 (D.C. Cir. 1981)). “While transparency in government is an
important democratic value, our society has often recognized that many important
governmental functions operate best removed from the public glare.” Michael N.
15
Kennedy, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process
Privilege, 99 Nw. U. L. Rev. 1769, 1770 (2005). Nevertheless, because of the FOIA’s
strong policy favoring disclosure, this exemption should be construed “as narrowly as
consistent with efficient Government operation.” Mink, 410 U.S. at 87 (quoting S. Rep.
No. 813, 89th Cong., 1st Sess. 9 (1965)).12 We are mindful that the “deliberative process”
FOIA exemption benefits the public and not the officials who assert it. See Kaiser
Aluminum and Chem. Corp. v. U.S., 157 F.Supp. 939, 944 (Ct.Cl. 1958).
To invoke the “internal memoranda” exemption successfully, the public
body must meet two prerequisites: in “the context in which the materials are used,” the
documents must be both predecisional and deliberative. Virginia Beach, 995 F.2d at 1253
(quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C.Cir.1988)).
Predecisional documents are “prepared in order to assist an agency decisionmaker in
arriving at his decision.” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.
168, 184 (1975). Deliberative material “reflects the give-and-take of the consultative
process,” by revealing the manner in which the agency evaluates possible alternative
policies or outcomes. Virginia Beach, 995 F.2d at 1253 (citing Coastal States Gas Corp.
v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.Cir. 1980)).
12
Evidence of government misconduct, crime, and fraud bars the application of
the “deliberative process” exemption. See In re Sealed Case, 121 F.3d 729, 738 (D.C.Cir.
1997) (“[W]here there is reason to believe the documents sought may shed light on
government misconduct, the privilege is routinely denied, on the grounds that shielding
internal government deliberations in this context does not serve the public’s interest in
honest, effective government.” (internal quotation marks omitted)).
16
WVU argues the FOIA’s “internal memoranda” exemption justifies its
decision to withhold 760 documents. A research scientist at a public college or university
is subject to FOIA because he or she is employed by a public body. Therefore, WVU
maintains he or she must be equally and congruently entitled to the protection of this
FOIA exemption. For these public body employees, the public function they are hired to
perform is the research and publication of scholarly articles. WVU contends the
“deliberations” they undertake and the “decisions” the professors make include the final
publication of their research efforts. A public university or college’s “policy” is to
nurture, support, and publish academic research on areas of public concern; its mission is
fulfilled when the article is published. Therefore, WVU maintains that if the deliberative
processes of its researchers are open for public inspection, WVU will be unable to fulfill
its mission.
In opposition, Highland argues this FOIA exemption does not apply
because Professor Hendryx was not engaged in policy making on behalf of WVU when
preparing the subject articles. In fact, WVU has expressly disclaimed the notion that any
research paper published by a WVU professor represents WVU’s position or policy.13
Furthermore, Highland argues the publication of the articles at issue did not involve
policy making or a deliberative process within the meaning of this FOIA exemption.
13
In 2011, WVU released the following position statement: “The findings of any
particular research project do not reflect, nor should they, any particular opinion or
position of the University itself.”
17
Highland relies on a narrow reading of Ethyl Corp. v. Environmental Protection Agency,
25 F.3d 1241 (4th Cir. 1994), wherein the Fourth Circuit Court of Appeals held the
“deliberative process” exemption only allows for the withholding of documents that
“bear on the formulation or exercise of policy-oriented judgment.” Id. at 1248 (emphasis
added), see also Coastal States, 617 F.2d at 866 (declaring federal FOIA “deliberative
process” privilege protects “premature disclosure of proposed policies”) (emphasis
added).
Ultimately, Highland maintains WVU can never avail itself of the “internal
memoranda” FOIA exemption because neither the WVU School of Medicine nor its
Rural Health Research Center is a state agency; they do not regulate any activity,
promulgate rules or policies that govern any entity’s conduct, or engage in any other type
of governmental function. Highland acknowledges, however, that Professor Hendryx may
have sought to influence the development of policy by federal and state agencies
responsible for regulating surface coal mining, but he had no authority to directly develop
or impose any such policies.
We agree with Highland’s factual assessment that while WVU is a public
body, it is not a state agency engaged in policy making. We further agree that Professor
Hendryx did not formulate policy on behalf of WVU when he published the research
articles. Nevertheless, we emphatically reject Highland’s legal argument that WVU may
not invoke the “internal memoranda” exemption because that exemption covers only
18
documents reflecting agency policy making communications. There is a bulk of case law
applying the federal FOIA’s “deliberative process” exemption in the context of
administrative agency policy/decision making.14 At the same time, however, a plethora of
federal FOIA cases also extend this exemption to public bodies engaged in activities
other than agency policy making. “In its relatively short life, the deliberative process
privilege has become one of the most predominate privileges exercised by the
government and is now routinely asserted in a wide array of litigation challenging
government decisionmaking.” Michael Ray Harris, Standing in the Way of Judicial
Review: Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis U.
L.J. 349, 350 (2009).
14
The root of this trend may be explained by the fact the federal FOIA represented
the culmination of years of congressional effort to amend the public information
provisions of the Administrative Procedure Act of 1946.
The FOIA replaced Section 3 of the Administrative
Procedure Act (APA) of 1946, which ostensibly served as a
public information provision to permit the public to gain
access to federal records. However, the law was filled with
loopholes that the government routinely exploited to withhold
records. The main obstacle to public access under the APA
was a requirement that record requesters demonstrate that the
solicited information pertain directly to them. This restriction
prevented journalists, writers, historians, lawyers, and others
from gaining access to information held by the federal
government.
Martin E. Halstuk, When Is An Invasion of Privacy Unwarranted Under the FOIA? An
Analysis of the Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy”
Standards, 16 U.Fla.J.L. & Pub. Pol’y 361, 367 (2005) (footnotes omitted).
19
Having considered all of these competing arguments, we reject Highland’s
contention that the “internal memoranda” exemption applies only to administrative
agency policy making. A plain reading of our FOIA confirms that WVU has the stronger
argument. In West Virginia, administrative agencies are not the only public bodies
subject to the FOIA and its accompanying exemptions. West Virginia Code § 29B-1
4(a)(8) exempts from disclosure “internal memoranda or letters received or prepared by
any public body.” Id. (emphasis added). And the definition of “public body” under our
FOIA is extensive:
“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.
Id. § 29B-1-2(3).15 The public body entities and their employees set forth above engage
in an immensely diverse range of endeavors related to government service. Therefore, we
expect their internal deliberations will necessarily address a variety of matters related to
their state and/or local governmental responsibilities.
15
The federal FOIA uses the term “agency,” not “public body.” See Pub. Citizen
Health Research Grp. v. Dep’t of Health, Ed. & Welfare, 668 F.2d 537, 542 (D.C. Cir.
1981) (“For purposes of the Freedom of Information Act the statute provides that ‘the
term “agency” as defined in section 551(1) . . . includes any executive department,
military department, Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.’ 5 U.S.C. § 552(e)
(1976).”).
20
Consequently, in Daily Gazette I, we did not confine the “internal
memoranda” exemption to deliberations preceding agency policy making. Instead, we
held a public body may exempt from disclosure documents which reflect its “deliberative
decision-making process.” 198 W.Va. at 575, 482 S.E.2d at 192 (emphasis added). We
explained that courts must evaluate the “function and significance of the documents” to
the public body’s decision-making process, including an explanation of “the nature of the
decision-making authority vested in the office or person issuing the disputed
documents[.]” Id.16
We hereby announce that West Virginia’s Freedom of Information Act,
West Virginia Code § 29B-1-4(a)(8) (2012), exempts from disclosure “internal
memoranda or letters received or prepared by any public body” as defined by West
Virginia Code § 29B-1-2(3) (2012). The FOIA reflects our Legislature’s recognition that
disclosure of public body communications reflecting deliberative processes on any
16
Similarly, other state courts have applied their respective FOIA’s “deliberative
process” exemption to decisions unrelated to agency policy making. For instance,
documents generated by public employees charged with hiring decisions may be exempt
from disclosure when they are both predecisional and deliberative. See Wilson v. Super.
Ct., 51 Cal. App. 4th 1136, 1143 (Calif. Ct. of App. 2nd Dist. 1997) (applying California
state’s FOIA, documents held exempt when their sole purpose was to aid Governor in
selecting gubernatorial appointees, process which depends upon confidential, candid
discussion of candidates’ professional competence, political views and private conduct).
Other state courts have also applied this FOIA exemption to documents reflecting
decision-making activities of judicial branch employees unrelated to agency policy
making. See Commonwealth v. Vartan, 733 A.2d 1258, 1266 (Pa. 1999) (holding
“deliberative process” privilege protected deliberations by members of Pennsylvania
Supreme Court regarding decision to build new courthouse).
21
subject could have a chilling effect on future communications. Confidentiality of certain
documents connected with a public body’s decision-making process ensures frank and
open discussion among its employees, which in turn enhances the quality of their
decisions. Considering the strong policy favoring disclosure of public documents, courts
must construe this exemption narrowly as consistent with efficient state and local
government operations. The key question in every case is whether the disclosure of
documents would expose a public body’s decision-making process so as to discourage
candid discussion and thereby undermine the public body’s ability to perform its
functions. See Times Mirror Co. v. Super. Ct., 813 P.2d 240, 250 (Cal. 1991) (“In short,
the courts’ focus . . . is less on the nature of the records sought and more on the effect of
the records’ release.”).
Having determined that WVU, as a public body, may assert the “internal
memoranda” exemption, we now turn to the pivotal question of whether the withheld
documents fall within this exemption. As discussed above, to invoke the “internal
memoranda” exemption set forth in West Virginia Code § 29B-1-4(a)(8) (2012)
successfully, the public body must show that in the context in which the materials are
prepared or considered, the documents are both predecisional and deliberative to its
decision-making process. Predecisional documents are prepared in order to assist a public
body decisionmaker in arriving at his or her decision. Deliberative material reflects the
give-and-take of the consultative process, by revealing the manner in which the public
body evaluates possible alternatives relevant to the decisional process.
22
The relevant public body decision for purposes of applying the
“deliberative process” exemption to these public records is not whether WVU adopted a
position or policy regarding mountaintop coal removal’s health effects on state residents.
Rather, when a FOIA requester seeks records surrounding or leading up to an agency
publication, the relevant agency decision for purposes of applying the “deliberative
process” exemption is the development and ultimate publication of the article. See United
Am. Fin., Inc. v. Potter, 531 F.Supp.2d 29, 44 (D.D.C. 2008) (finding that relevant
agency decision was agency’s publication of article where plaintiff’s FOIA request
sought all supporting documents and drafts of documents relating to article), accord,
Hooker v. U.S. Dep’t of Health and Human Servs., 887 F.Supp.2d 40, 57 (D.D.C. 2012).
In Hooker, a parent of an autistic child filed a federal FOIA action against
the Department of Health and Human Services (“HHS”) and the Centers for Disease
Control (“CDC”), seeking disclosure of information, including all correspondence among
researchers, regarding the publication of studies relating to a possible connection between
a mercury-based compound used in vaccines and autism. Id. at 45. Like Highland sought
in the instant case, Mr. Hooker wanted access to this information to refute the
conclusions reached in the articles. Mr. Hooker contended the HHS and CDC
consistently denied a relationship between the mercury-based compound and autism, “in
the face of ‘a mounting body of compelling scientific literature’ that support[ed] the
existence of such a relationship.” Id. The court rejected Mr. Hooker’s arguments and
found the HHS and CDC properly applied the federal FOIA “deliberative process”
23
exemption to material that was deliberative in nature when withholding internal
communications revealing the analysis underlying the draft manuscripts. Id. at 58.
We find the court’s analysis in Hooker instructive. Thus, we limit our
inquiry to whether a requested document, regardless of its nature, (1) was generated
before the publication of the research article to which it relates, and if so, (2) whether it
reflects Professor Hendryx’s deliberative, decision-making or thought process employed
to arrive at the article’s conclusions and ultimate publication. “[T]he deliberative process
exemption protects ‘recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal opinions of the writer rather than
the policy of the agency.’” Virginia Beach, 995 F.2d at 1253 (quoting Coastal States, 617
F.2d at 866). “Draft documents, by their very nature, are typically predecisional and
deliberative.” Keeper of the Mountains Found. v. U.S. Dep’t of Justice, 514 F.Supp. 2d
837, 854 (S.D. W.Va. 2007) (citations omitted).
In Chemical Manufacturers Association v. Consumer Product Safety
Commission, 600 F.Supp. 114 (D.D.C. 1984), the district court addressed this same issue
and found documents qualified under the federal FOIA “deliberative process” exemption
because they detailed an exchange of ideas among scientists regarding the agency’s study
of a chemical used in the manufacture of toys. Id. at 119. The court ruled these scientific
deliberations were part of the agency’s “give-and-take” and that disclosure of such
deliberations would discourage open discussion among the agency scientists. Id.
24
Specifically, the court held that “scientists should be able to withhold nascent thoughts
where disclosure would discourage the intellectual risk-taking so essential to technical
progress.” 600 F.Supp. at 118.
Not only is the parallel to the concerns raised in Hooker and Chemical
Manufacturers evident, but Highland’s attempt to invade Professor Hendryx’s
deliberative process is patent. First, considering the context in which the materials were
used, WVU has shown that any document which reveals the analysis underlying
Professor Hendryx’s articles is predecisional. In the state higher education academic
setting, documents generated before the final publication of a scientific research article –
all documents related to the initiation, preparation and publication of the articles – are by
their very nature predecisional. Second, WVU has shown that any document, regardless
of its nature, that exposes the give-and-take of the scientific research consultative
process, by revealing the manner in which the researchers evaluate possible alternative
outcomes, is deliberative. Because these drafts, data compilations 17 and analyses,
17
Nearly all Professor Hendryx’s articles that were the subject of Highland’s
FOIA requests were based on studies using secondary data only. However, the Self-
Reported Cancer Rates Study did involve the use of personal surveys of residents living
in areas where mountaintop coal removal took place. We find WVU may withhold
documents generated in data compilation because these documents could reveal the
deliberative process. See Hooker, 887 F.Supp.2d at 58 (“‘The choice of what factual
material . . . to include or remove during the drafting process is itself often part of the
deliberative process, and thus is properly exempt under [the federal FOIA “deliberative
process” exemption].’” (quoting ViroPharma, Inc. v. Dep’t of Health and Human Servs.,
839 F.Supp.2d 184 193 (D.D.C. 2012)); Montrose Chem. Corp. of Cal. v. Train, 491 F.2d
63, 67-70 (1974) (holding “deliberative process” privilege applied to summaries
(continued . . .)
25
proposed edits, e-mails and other communications, and peer review comments and
responses relate to the planning, preparation and editing necessary to produce a final
published article, they are exempt from disclosure. We therefore find that, on the
evidence before the circuit court at the summary judgment hearing,18 WVU successfully
carried its burden of proving certain documents fell under the “internal memoranda”
umbrella of the FOIA.
Our review of the appendix record, however, reveals that WVU improperly
claimed the “deliberative process” exemption to some documents that are post-decisional
and/or non-deliberative.19 As the Supreme Court recognized in Sears, the purpose of the
containing only factual material because documents revealed author’s evaluative
judgment as to relative significance of facts and what facts he considered to be important
or unimportant); Washington Research Project, Inc. v. Dep’t of Health, Educ. & Welfare,
504 F.2d 238, 250-251 (D.C. Cir. 1974) (“[T]he judgmental element arises through the
necessity to select and emphasize certain facts at the expense of others.”); Farmworkers
Legal Servs. v. U.S. Dep’t of Labor, 639 F.Supp. 1368, 1373 (E.D.N.C. 1986) (“Because
the list sought here is composed of selective fact, it . . . could reveal the deliberative
process.”).
18
This Court reviewed the same evidence. The parties submitted a Joint Appendix
that contained five DVDs of the documents provided by WVU in response to Highland’s
FOIA requests. WVU also submitted to this Court, under seal, the documents it submitted
to the circuit court for in camera review.
19
For instance, Document No. 03-0217 in the sample Vaughn index consists of an
e-mail dated July 28, 2011, regarding a potential speaking engagement pertaining to the
various articles at issue. We find WVU’s argument unconvincing that this e-mail should
be protected from disclosure because it “reflect[s] these individuals’ thought processes
and analyses that ultimately resulted in the final decision on how such matters concerning
publicity should be handled on behalf of [WVU.]” To accept WVU’s argument here, we
would be allowing the exception to swallow the rule.
26
deliberative process privilege is to protect the quality of an agency’s decision; revealing
“communications made after the decision and designed to explain it” do not affect a
decision’s quality. 421 U.S. at 152.
Our holding today comports with American Tradition Institute v. Rector
and Visitors of the University of Virginia, 756 S.E.2d 435 (Va. 2014) (“UVA”), where
the Virginia Supreme Court was faced with facts analogous to the instant case. In UVA, a
requester brought suit under Virginia’s FOIA against the University of Virginia seeking
disclosure of documents produced or received by a former professor while working at the
university. Id. at 437. The professor was a climate scientist and former professor whose
scholarly work had “generated much scientific and political interest.” Id. Applying a
FOIA exemption,20 the court upheld the university’s exclusion of the documents from
production. Id. at 442. In UVA, “many noted scholars and academic administrators
submitted affidavits attesting to the harmful impact disclosure would have in these
circumstances.” Id. The court quoted an affidavit from John Simon, Vice President and
20
Virginia Code § 2.2-3705.4(4) (West 2014) provides:
Data, records or information of a proprietary nature
produced or collected by or for faculty or staff of public
institutions of higher education, other than the institutions’
financial or administrative records, in the conduct of or as a
result of study or research on medical, scientific, technical or
scholarly issues, whether sponsored by the institution alone or
in conjunction with a governmental body or a private
concern, where such data, records or information has not been
publicly released, published, copyrighted or patented.
27
Provost of the university and former Vice-Provost of Duke University, addressing the
concerns relevant to academia:
If U.S. scientists at public institutions lose the ability
to protect their communications with faculty at other
institutions, their ability to collaborate will be gravely
harmed. The result will be a loss of scientific and creative
opportunities for faculty at institutions in states which have
not established protections under state FOIAs for such
communications. . . . For faculty at public institutions such as
the University of Virginia, compelled disclosure of their
unpublished thoughts, data, and personal scholarly
communications would mean a fundamental disruption of the
norms and expectations which have enabled research to
flourish at the great public institutions for over a century.
...
I can state unequivocally that recruitment of faculty to
an institution like the University of Virginia will be deeply
harmed if such faculty must fear that their unpublished
communications with the scientific collaborators and
scholarly colleagues are subject to involuntary public
disclosure.
Id. at 442.
The same reasoning applies with equal force here.21 When we focus on the
resulting effect of the documents’ release, the resolution of this case is decidedly clear.
21
The UVA case best illuminates the public policy facet of the issue before us. If
West Virginia State colleges and universities cannot retain their researchers and scientists
because the FOIA exposes them to an unfair intrusion into the scientific process, then the
problem of operating in a “fishbowl” pales in comparison to the challenge of attracting
and retaining highly qualified faculty. See generally Dianna G. Goldenson, FOIA
Exemption Five: Will it Protect Government Scientists From Unfair Intrusion?, 29 B.C.
Envtl. Aff. L. Rev. 311 (2002) (arguing federal FOIA “deliberative process” exemption
should be recognized by courts as mode of protecting government scientists from unfair
intrusion into scientific research).
28
The involuntary public disclosure of Professor Hendryx’s research documents would
expose the decision-making process in such a way as to hinder candid discussion of
WVU’s faculty and undermine WVU’s ability to perform its operations. We
acknowledge that West Virginia’s FOIA does not have an exemption specifically
applicable to state institutions of higher education like Virginia does. Nevertheless, we
find that documents generated during higher education academic research may be legally
protected from disclosure under West Virginia Code § 29B-1-4(a)(8), when the public
body demonstrates the criteria outlined above are satisfied. Accordingly, we affirm the
order of the circuit court insofar as it found WVU properly invoked the FOIA “internal
memoranda” exemption to withhold certain documents.
B. The FOIA’s Personal Privacy Exemption
The FOIA’s “personal privacy” exemption permits the withholding of
“information of a personal nature such as that kept in a personal, medical or similar
file[.]” W.Va. Code § 29B-1-4(a)(2). In syllabus point six of Hechler v. Casey, 175
W.Va. 434, 333 S.E.2d 799 (1985), we held: “The primary purpose of the invasion of
privacy exemption to the Freedom of Information Act, W.Va.Code, [§ 29B-1-4(a)(2)],22 is
to protect individuals from the injury and embarrassment that can result from the
unnecessary disclosure of personal information.” Id. (footnote added). We employ a two-
pronged inquiry in deciding whether the public body has correctly withheld records under
22
The syllabus point cites West Virginia Code § 29B-1-4(2) (1977), which
contains the same language as West Virginia Code § 29B-1-4(a)(2) (2012).
29
this exemption. First, we determine whether the records in question are “personal,”
“medical,” or “similar” files. Second, if so, we then balance or weigh the individual’s
right of privacy against “the public’s right to know.” Hechler, 175 W.Va. at 444, 333
S.E.2d at 810.
Our analysis is consistent with case law interpreting the federal FOIA
counterpart. The federal FOIA exemption provides that government can withhold
“personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2009). See
Martin E. Halstuk, When Is An Invasion of Privacy Unwarranted Under the FOIA? An
Analysis of the Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy”
Standards, 16 U.Fla.J.L. & Pub. Pol’y 361, 371 (2005) (“When an agency makes a
determination in a privacy-interests case[,] . . . it first must decide whether the requested
records fall within the definition of ‘personnel,’ ‘medical,’ or ‘similar’ files. Second, the
agency must balance the invasion of the individual’s personal privacy against the public’s
interest in disclosure to determine whether the disclosure is justified.”) (footnotes
omitted).
Here, the circuit court concluded WVU properly withheld 740 documents
on the basis of “academic freedom,” a concept which it incorporated into the FOIA’s
30
23
“personal privacy” exemption. The circuit court conceded that its ruling was
unprecedented. The circuit court’s holding rested upon three distinct considerations: (1)
the First Amendment encompasses an “academic freedom” privilege that is
“transcendental, applicable to both constitutional law and to FOIA”; (2) the guarantee set
forth in the West Virginia Constitution that provides all citizens have a right to a
thorough and efficient educational system; and (3) the determination that individual peer
reviewers have an expectation of privacy that will be harmed by the release of their
comments, even though such comments are submitted anonymously.
We summarily reject the first two considerations outlined above. First, the
West Virginia Freedom of Information Act does not provide an “academic freedom”
exemption to its general disclosure provision, West Virginia Code § 29B-1-3 (2012).
Although the First Amendment has been held to apply to protect colleges and universities
against undue interference by the government,24 First Amendment jurisprudence does not
23
The circuit court noted, however, that the “deliberative process” exemption
would shield the same documents from disclosure.
24
The primary case cited by WVU on this issue, Sweezy v. New Hampshire, 354
U.S. 234 (1957), is not relevant to the instant case. Sweezy was decided on the basis of a
denial of due process, in the form of an open-ended, unlimited investigation of the
personal conduct and affairs of a faculty member. The Supreme Court in Sweezy dealt
with a challenge to the use of a New Hampshire statute to hold a university professor in
contempt for failing to answer questions posed to him (by the New Hampshire Attorney
General, on behalf of the Legislature) concerning his belief in Communism and
involvement with the Progressive Party. Id. at 242-244. This case did not involve the
federal FOIA or any similar statute, nor did it involve the professor’s research
activities/scientific publications.
31
support its application in the context of this case. Because the exemptions to the Act are
required to be strictly construed, this Court declines to create an “academic freedom”
exemption not specifically set forth in the FOIA. See Syl. Pt. 5, Queen, 179 W.Va. 95,
365 S.E.2d 375. In Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996) we stated,
“[i]t 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.” Id. at 546-47, 474 S.E.2d at 476-77. This Court has further cautioned that “[a]
statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be
modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer Advocate Div. v. Pub.
Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989). Therefore, we find the broad
principle of “academic freedom” would not justify WVU’s wholesale avoidance of the
plain language of the FOIA. 25
Second, the guarantee of a “thorough and efficient system of free schools”
under the West Virginia Constitution does not extend to institutions of higher education
such as WVU. See W.Va. Const. art. XII, § 1; Syl. Pt. 7, Randolph Co. Bd. of Educ. v.
Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995) (“Whatever items are deemed necessary to
25
Likewise, WVU wrongly suggests we should recognize an “academic freedom”
exemption from FOIA to mirror “the justification for First Amendment protections
afforded to journalists.” The principles that support the extension of First Amendment
protections to journalists and their confidential sources have no application to the matter
before us.
32
accomplish the goals of a school system and are in fact an integral fundamental part of
the elementary and secondary education must be provided free of charge to all students in
order to comply with the constitutional mandate of a free school system pursuant to
Section 1 of Article XII of the West Virginia Constitution.”). Our Constitution does not
establish a right to a higher education; the circuit court’s reliance on this principle was
entirely misplaced.
We now turn to the third consideration set forth above. The pertinent issue
here is whether Highland’s request for “[a]ll comments by peer reviewers concerning
drafts of the documents” constitute “information of a personal nature” within the meaning
of the privacy exemption at West Virginia Code § 29B-1-4(a)(2). WVU asserts the peer
reviewers’ privacy expectations would be violated by the release of their anonymous,
confidential comments. The identity of peer reviewers is traditionally kept confidential in
order to facilitate a candid exchange regarding a proposed article and its research. WVU
maintains that to subject a reviewer’s comments to public scrutiny, even while keeping
the identity of the reviewer withheld, would render a reviewer more reluctant to challenge
traditional ideas and propose unconventional concepts.
Highland responds that WVU’s argument “stands the notion of ‘personal’
information on its ear.” Applying the plain meaning of the word “personal,” Highland
argues this exemption cannot apply to peer review comments, submitted anonymously to
33
an academic or scientific journal, that are not kept in a “personal, medical, or similar file”
pertaining to the person who prepared them. We agree.
This Court finds that WVU fails to meet the first prong of Hechler because
the records in question are not “personal, medical or similar file[s]” that fall under the
FOIA’s “personal privacy” exemption. W.Va. Code § 29B-1-4(a)(2). In fact, these
anonymous peer review comments contain no personal identifying information at all.
Therefore, the only case relied upon by WVU on this issue is distinguishable from the
instant case. In Cook v. National Archives & Records Administration, 758 F.3d 168 (2nd
Cir. 2014), the court held records pertaining to research requests made on behalf of
former President and former Vice President for records from their own administration
were “similar files” to “personnel” files exempt under the federal FOIA “personal
privacy” exemption, because “they contain[ed] detailed records containing personal
information identifiable to the former officials and their representatives.” Id. at 175.
Because WVU fails to meet the first prong of Hechler, our analysis stops
here; we need not proceed to address the second prong to balance or weigh the
individual’s right of privacy against “the public’s right to know.” 175 W.Va. at 444, 333
S.E.2d at 810. Accordingly, we reverse the order of the circuit court insofar as it found
that WVU properly withheld documents on the basis of “academic freedom,” as it
incorporated into the FOIA’s “personal privacy” exemption set forth in West Virginia
Code § 29B-1-4(a)(2).
34
We do, however, agree with the circuit court’s finding that the same
documents would fall under the FOIA “internal memoranda” exemption. As previously
discussed, disclosure of the anonymous peer review comments submitted to Professor
Hendryx, as he was drafting the articles, would undercut the decision-making process
embodied by the FOIA’s exemption and discourage open discussion necessary for
scientific/academic research. See Daily Gazette I, 198 W. Va. at 572, 482 S.E.2d at 189
(stating that “in the spirit of further promoting frank and open discussions during an
agency’s deliberative process, courts have interpreted the deliberative process privilege to
include opinions and recommendations to a governmental agency by outside consultants
and experts so long as such opinions or recommendations are obtained during the
government agency’s deliberative, predecisional process”).
C. Reasonableness of FOIA Request
WVU initially moved to dismiss this action claiming the FOIA requests
were unduly burdensome. The circuit court denied this motion and WVU engaged in
document review and production. WVU produced 2,364 documents, totaling 11,090
pages and redacted 119 of those documents; WVU withheld 772 documents and claimed
the FOIA exemptions discussed above. By the time the circuit court granted summary
judgment in favor of WVU, the university claimed to have reviewed over 40,000
documents and identified over 200,000 potentially responsive documents.
35
In its March 19, 2014, order, the circuit court found “at this point,” WVU
had demonstrated that the FOIA requests were unduly burdensome, and noted it was
concerned about the time and expense that “would be required to complete the process[.]”
WVU maintains the circuit court correctly found that the past two years of litigation and
document production proved Highland’s FOIA requests were unduly burdensome. WVU
argues that while the FOIA is designed to foster public transparency and accountability,
the Act also reflects the Legislature’s “concern that information requests not become
mechanisms to paralyze other necessary government functions.” Farley, 215 W.Va. at
422 n.14, 599 S.E.2d at 845 n.14.
Highland counters that the circuit court inexplicably failed to address its
voluntary offer to limit or potentially eliminate the need for further document processing.
In response to a letter from WVU’s counsel pointing out the anticipated cost to process
that information, Highland’s counsel agreed that WVU could defer processing of those
documents pending further rulings. In addition, Highland noted that if the documents that
have been withheld thus far were provided, Highland may decide that it does not wish to
receive any of the remaining documents. In accordance with this discussion, in its Cross-
Motion for Summary Judgment, Highland only requested the release of previously-
withheld documents as listed in the Vaughn indices, and that WVU be required to confer
with Highland as to any additional documents.
36
To be sure, the FOIA requires a public body to conduct a reasonable search
for responsive records. Further,
[i]n 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, 215 W.Va. at 412, 599 S.E.2d at 835.
However, the FOIA does not require a public body to conduct what
amounts to an unreasonably burdensome search in response to a request. See Am. Fed’n
of Gov’t Emps. v. U.S. Dep’t of Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990)
(finding unreasonably burdensome FOIA request to locate “every chronological office
file and correspondent file, internal and external, for every branch office, staff office
[etc.]”); Assassination Archives & Research Ctr. v. C.I.A., 720 F.Supp. 217, 219 (D.D.C.
1989) (recognizing public record laws are not designed to “reduce government agencies
to full-time investigators on behalf of requesters.”), but see Pub. Citizen, Inc. v. Dep’t of
Educ., 292 F.Supp.2d 1, 6 (D.D.C. 2003) (rejecting claim of undue burden when
defendants “merely claim that [manually] searching . . . 25,000 paper files would be
37
‘costly and take many hours to complete,’ . . . [w]ithout more specification as to why a
search certain to turn up responsive documents would be unduly burdensome”).
When examining the burden on a public body to comply with a FOIA
request, we note our FOIA provides “[t]he public body may establish fees reasonably
calculated to reimburse it for its actual cost in making reproductions of such records.”
W.Va. Code § 29B-1-3(5). This Court recently held in syllabus point two of King v.
Nease, 233 W.Va. 252, 757 S.E.2d 782 (2014): “Pursuant to West Virginia Code § 29B
1-3(5) (2012), a public body is vested with the authority and discretion to impose a search
or retrieval fee in connection with a Freedom of Information Act request to provide
public records provided that such fee is reasonable.”26
Based on Highland’s proposal to limit the need for WVU to continue
further document processing, we find the circuit court erred in finding the FOIA requests
were unreasonably burdensome and dismissing the action at this stage of the litigation.
The “FOIA requester is the ‘master’ of the FOIA request” and “FOIA requests are
frequently clarified or modified even after a lawsuit is filed.” People for Am. Way Found.
v. U.S. Dep’t of Justice, 451 F.Supp.2d 6, 12 (D.C.D.C. 2006).
26
Our Legislature recently amended this portion of the FOIA. See House Bill
2636, 2015 Leg. 82nd Sess. (W.Va. 2015) (effective June 12, 2015) (authorizing public
body to establish fees reasonably calculated to reimburse actual costs in making
reproductions of records; public body may not charge search or retrieval fee as part of
costs associated with making reproduction of records).
38
Accordingly, we reverse the circuit court’s order insofar as it dismissed this
action and remand the case for further proceedings. We find Highland should have the
opportunity to taper its FOIA requests correspondent to our holdings in this case.
Thereafter, the circuit court should revisit its decision of whether Highland’s FOIA
requests are unduly burdensome. Applying this Court’s ruling, the circuit court will find
that WVU’s document production obligations are dramatically reduced. If the circuit
court does not dismiss this action, it should consider appointing a special commissioner
pursuant to Rule 53 of the West Virginia Rules of Civil Procedure to review any
documents withheld by WVU, in camera, to determine whether they are exempt from
disclosure under the FOIA. Further, the parties are expected to confer regarding the fees
Highland may incur with respect to any further document processing and production by
WVU.
D. Highland’s Request for Attorney Fees and Costs
The FOIA provides that any person who is a successful FOIA litigant must
be awarded attorney fees and costs. Specifically, West Virginia Code § 29B-1-7 provides:
[a]ny 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.
In syllabus point seven of Daily Gazette Co. v. West Virginia Development Office, 206
W.Va. 51, 521 S.E.2d 543 (1999) (hereinafter “Daily Gazette II”), we held:
39
For a person to have brought a suit for the disclosure
of public records under the West Virginia Freedom of
Information Act (FOIA), as permitted by W.Va. Code § 29B
1-5 (1977) (Repl.Vol.1998), so as to entitle him/her to an
award of attorney’s fees for “successfully” bringing such suit
pursuant to W.Va. Code § 29B-1-7 (1992) (Repl.Vol.1998),
he/she need not have prevailed on every argument he/she
advanced during the FOIA proceedings or have received the
full and complete disclosure of every public record he/she
wished to inspect or examine. An award of attorney’s fees is
proper even when some of the requested records are ordered
to be disclosed while others are found to be exempt from
disclosure or are released in redacted form. In the final
analysis, a successful FOIA action, such as would warrant an
award of attorney’s fees as authorized by W.Va. Code § 29B
1-7, is one which has contributed to the defendant’s
disclosure, whether voluntary or by order of court, of the
public records originally denied the plaintiff.
Highland contends the circuit court erred in neglecting to address its
request for attorney fees and costs. While WVU disagrees, Highland argues it
successfully brought this FOIA suit because WVU originally denied it access to any
public records, and, WVU was forced to produce more than 2,200 documents in
compliance with the circuit court’s November 7, 2012 order. WVU argues that the
circuit court’s final ruling that Highland’s FOIA requests were unduly burdensome
eliminates its claim for attorney fees and costs.
“Typically, we have steadfastly held to the rule that we will not address a
nonjurisdictional issue that has not been determined by the lower court.” State ex rel.
Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va. 690, 699, 510 S.E.2d 764, 773
(1998), accord Syl. Pt. 3, Voelker v. Frederick Bus. Props. Co., 195 W.Va. 246, 465
40
S.E.2d 246 (1995). Accordingly, we remand this case for further proceedings to take up
Highland’s request for attorney fees and costs in accordance with the guidelines set forth
in Daily Gazette II. The circuit court must determine if Highland instituted “a successful
FOIA action,” that would warrant such an award as authorized by West Virginia Code §
29B-1-7, and enter an order addressing this request.
IV. CONCLUSION
For the reasons set forth above, the March 19, 2014, order of the Circuit
Court of Monongalia County is affirmed, in part; reversed, in part; and this action is
remanded for further proceedings consistent with this opinion.
Affirmed, in part; reversed, in part; and remanded.
41