WVFOIA Frequently Asked Questions
Find answers to common questions about West Virginia’s Freedom of Information Act (WVFOIA). See also our list of exemptions, case law, or the request database.
General
Section titled “General”What is the purpose of the WVFOIA?
Section titled “What is the purpose of the WVFOIA?”The WVFOIA declares it the public policy of West Virginia that all persons are entitled to full and complete information about government affairs and the official acts of public officials and employees. The law aims to keep the people informed so they can retain control over the government instruments they created. Its provisions are to be liberally construed to achieve this goal.
Who does the WVFOIA apply to? (What is a “public body”?)
Section titled “Who does the WVFOIA apply to? (What is a “public body”?)”The Act applies to every state officer, agency, department (including executive, legislative, and judicial branches), division, bureau, board, and commission. It also covers county and city governing bodies, school districts, special districts, municipal corporations, and their boards, departments, commissions, councils, or agencies. Any other body created by state or local authority or primarily funded by state or local authority is also considered a “public body.”
What kind of records does the WVFOIA cover? (What is a “public record”?)
Section titled “What kind of records does the WVFOIA cover? (What is a “public record”?)”A “public record” includes any “writing” containing information related to the conduct of the public’s business that is prepared, owned, and retained by a public body. A “writing” encompasses books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. This includes emails and verbatim tape recordings of public meetings.
Are emails considered public records?
Section titled “Are emails considered public records?”Yes, an email communication falls under the definition of a “writing.” However, a personal email from a public official or employee that does not relate to the conduct of the public’s business is not a public record subject to disclosure, even if agency resources were used to send or receive it. The determination depends solely on the content of the email, not public interest.
Does a document have to be created by the public body to be a public record?
Section titled “Does a document have to be created by the public body to be a public record?”No. A writing in the possession of a public body is a public record if it relates to the public’s business and isn’t exempt, even if it wasn’t prepared by or for the public body. However, the public body must “retain” the record, meaning it must be subject to the public body’s control. There is no obligation under WVFOIA for a public body to create a record if one doesn’t already exist.
Can a public body make a record confidential just by agreeing to do so?
Section titled “Can a public body make a record confidential just by agreeing to do so?”No. A public record does not become private simply because the parties involved agree it should remain confidential. Such agreements are void if they conflict with the WVFOIA. Similarly, a confidentiality agreement between a public body and the supplier of information cannot override the disclosure requirements.
Requests
Section titled “Requests”How do I request public records under WVFOIA?
Section titled “How do I request public records under WVFOIA?”You should make your request directly to the “custodian” of the public record. The custodian is the elected or appointed official charged with administering the public body.
Does the request need to be in writing?
Section titled “Does the request need to be in writing?”The statute does not explicitly require requests to be in writing. However, a written request is advisable to avoid misunderstandings about the timing and scope of the request and to ensure the information sought is clearly stated.
How specific does my request need to be?
Section titled “How specific does my request need to be?”Requests must state “with reasonable specificity” the information sought.
How quickly must a public body respond to a request?
Section titled “How quickly must a public body respond to a request?”The custodian must respond as soon as practicable, but within a maximum of five working days (excluding Saturdays, Sundays, or legal holidays). The response must either furnish copies of the requested information, advise when and where you can inspect or copy the materials, or deny the request in writing with reasons.
What happens if my request is denied?
Section titled “What happens if my request is denied?”If your request is denied, the custodian must provide a written denial stating the reasons. This denial signifies the end of the custodian’s responsibility to produce the records and allows you to institute proceedings for injunctive or declaratory relief in the circuit court where the public record is kept.
Can I be charged for copies of records?
Section titled “Can I be charged for copies of records?”Yes, a public body may establish fees reasonably calculated to reimburse its actual cost for making reproductions of records.
Exemptions
Section titled “Exemptions”What types of information are exempt from disclosure under WVFOIA?
Section titled “What types of information are exempt from disclosure under WVFOIA?”The WVFOIA lists specific categories of information exempt from disclosure (W. Va. Code §29B-1-4). Because the Act’s intent is disclosure, these exemptions are strictly construed. The public body has the burden of proving an exemption applies.
What are the main categories of exemptions?
Section titled “What are the main categories of exemptions?”The main exemptions include:
- Trade secrets
- Information of a personal nature if disclosure would be an unreasonable invasion of privacy (unless the public interest clearly requires disclosure)
- Test questions and examination data
- Certain law-enforcement records related to crime detection and investigation
- Information specifically exempted by other statutes
- Certain archival and historical records
- Certain reports related to financial institutions
- Internal memoranda or letters
- Records related to preventing or responding to terrorist acts
- Certain public utility and telecommunications carrier information
- Certain records related to correctional facilities and juvenile detention
For a complete breakdown, see our WVFOIA Exemptions page.
Does the “personal information” exemption cover employee names and addresses? What about payroll records?
Section titled “Does the “personal information” exemption cover employee names and addresses? What about payroll records?”Generally, an individual’s name and residential address are considered public, not private, information and are not typically exempt. Payroll records, time sheets, salary amounts, attendance records, and similar data for public employees are generally considered public records whose disclosure would not constitute an unreasonable invasion of privacy. However, personnel records involving internal investigations or job performance evaluations may be exempt if the privacy interest outweighs the public interest in disclosure, potentially requiring redaction. A balancing test is used.
What happens if a document contains both exempt and non-exempt information?
Section titled “What happens if a document contains both exempt and non-exempt information?”An entire document isn’t automatically exempt just because part of it is. The public body has a duty to redact (remove or black out) the exempt information and disclose the rest, unless doing so would impose an unreasonably high burden or expense. If the body refuses on burden or expense grounds, it must provide a detailed written justification.
Are law enforcement records always exempt? What about incident reports?
Section titled “Are law enforcement records always exempt? What about incident reports?”No. The law-enforcement exemption covers records dealing with crime detection and investigation and internal records for internal law enforcement use. Its main purpose is to prevent premature disclosure that could compromise enforcement actions. Police incident reports fall under this exemption, but there is still a public right of access if disclosure won’t compromise an ongoing investigation. Information identifying juveniles must be redacted.
Are internal government communications (memos, letters) exempt?
Section titled “Are internal government communications (memos, letters) exempt?”The exemption for internal memoranda covers internal government communications reflecting the agency’s deliberative, decision-making process — such as advice, opinions, and recommendations. Factual information is generally not exempt under this category, while pre-decisional, deliberative information often is.
What is the “deliberative process” privilege?
Section titled “What is the “deliberative process” privilege?”Adopted from federal FOIA interpretations, this privilege protects written internal government communications containing advice, opinions, and recommendations that are part of a public body’s deliberative, decision-making process before a final decision is made. It also covers advice between public bodies or from outside consultants obtained during this process. Purely factual information or communications with private entities (unless expert advice during deliberation) are generally not covered.
Are there special exemptions related to security or corrections?
Section titled “Are there special exemptions related to security or corrections?”Yes. Exemptions 9 through 16 of §29B-1-4 cover various records related to preventing, mitigating, or responding to terrorist acts, including vulnerability assessments, response plans, specific intelligence, national security records shared by federal agencies, network security records, disaster recovery plans, and certain infrastructure designs or security codes. Exemption 19 covers certain records of corrections, jail, and juvenile facilities relating to facility design and operational procedures if release could compromise security or safety.
Are attorney communications (work product) exempt?
Section titled “Are attorney communications (work product) exempt?”While not a separate listed exemption, attorney work-product reflecting an attorney’s mental impressions, conclusions, opinions, or theories prepared for litigation is likely exempt, often falling under the internal memoranda exemption. However, documents like settlement agreements prepared by an attorney to conclude litigation are generally not considered exempt work product.
Enforcement
Section titled “Enforcement”How is the WVFOIA enforced?
Section titled “How is the WVFOIA enforced?”If you are denied the right to inspect a public record, you can sue the public body for injunctive or declaratory relief in the circuit court of the county where the record is kept.
Can I sue if I’m denied access to records?
Section titled “Can I sue if I’m denied access to records?”Yes, you can institute proceedings in circuit court.
Who has the burden of proof in court?
Section titled “Who has the burden of proof in court?”The public body has the burden to prove to the court that the records sought are exempt from disclosure. The court reviews the matter de novo (anew) and can review the documents privately (in camera).
Can I recover attorney fees if I win a WVFOIA lawsuit?
Section titled “Can I recover attorney fees if I win a WVFOIA lawsuit?”Yes. If you successfully bring a suit after being denied access, you are entitled to recover your reasonable attorney fees and court costs from the public body that denied access. You don’t need to win on every single point, as long as the lawsuit contributed to the disclosure of records originally denied. Note: pro se litigants cannot recover attorney fees they did not actually pay.
Are there penalties for public officials who willfully violate the WVFOIA?
Section titled “Are there penalties for public officials who willfully violate the WVFOIA?”Yes. Any custodian of public records who willfully violates the Act is guilty of a misdemeanor. Upon conviction, they can be fined $100 to $500, imprisoned in county jail for up to 10 days, or both.
Does WVFOIA apply differently to inmates?
Section titled “Does WVFOIA apply differently to inmates?”Yes. An inmate cannot use WVFOIA to obtain court records for filing a habeas corpus petition; they must use the specific procedures outlined in the Rules Governing Post-Conviction Habeas Corpus Proceedings.
Is there a constitutional right of access to information separate from WVFOIA?
Section titled “Is there a constitutional right of access to information separate from WVFOIA?”Yes. The West Virginia Constitution (Article III, Section 17) provides a right of public access to the courts. The State Supreme Court has relied on this to grant access to quasi-judicial proceedings like attorney and physician disciplinary actions after probable cause is found, even if a statute might otherwise suggest confidentiality.
Does WVFOIA affect civil discovery in lawsuits?
Section titled “Does WVFOIA affect civil discovery in lawsuits?”Generally, WVFOIA exemptions do not automatically shield records from discovery in civil litigation. Records exempt from public disclosure under WVFOIA may still be discoverable by a party in litigation against the agency, subject to a balancing test weighing the need for the material against the public interest in confidentiality.