West Virginia Freedom of Information Act
What is the West Virginia Freedom of Information Act?
The Freedom of Information Act (FOIA), enacted in 1966, is a federal law that guarantees members of the public access to the records of federal agencies except for redacted records. All states in the United States have an adaptation of the federal FOIA. West Virginia’s public records law is called the West Virginia Freedom of Information Act (WVFOIA). The WVFOIA is codified in W.Va. Code §29B-1-1 et seq. and grants any person access to public records of state and local governmental entities and those of their subdivisions. Under the WVFOIA, except otherwise explicitly stipulated by law, all persons are entitled to access information relating to the affairs of government and the actions of those of their employees or officials.
The WVFOIA was established pursuant to the fundamental philosophy of the American constitutional form of representative government which reinforces the belief that the government is the servant of the people and not their master. Hence, the West Virginia government pursues transparency and accountability to its people by not restricting access to the activities, actions, and records of governmental entities.
What is Covered Under the West Virginia Freedom of Information Act?
All public records of all public bodies in West Virginia are covered under the Freedom of Information Act. Under the WVFOIA, a public body refers to every state office, department, agency, including the judicial, legislative, and executive arms of government. Public bodies include any board, bureau, division, and commission established by any of the three arms of government. A public body may also be any county and city governing body, special district, school district, municipal corporation, or a council, agency, commission, or board thereof. Pursuant to W. Va. Code § 29B-1-2(3), any entity that is created by state or local authority or that is primarily funded by local or state authority qualifies as a public body.
Per W. Va. Code § 29B-1-2(4), a public record can be any writing containing information pertaining to the conduct of the public's business prepared, owned, or maintained by a public body. A "writing" can be in the form of paper, map, book, photograph, card, tape, electronic mail, recording, or any documentary material regardless of physical form or characteristics.
What Records are Exempt from the Freedom of Information Act in West Virginia?
Not all records are public under the WVFOIA. Per W. Va. Code § 29B-1-4, some categories of records are exempted from public disclosure. These include:
- Trade secrets, scientific and academic research work ongoing and unpublished, and other proprietary or commercial information which may offer an edge to business competitors and serve no public purpose if disclosed.
- Test questions, answers, and other examination information used to administer a licensing, certification, registration, job, or academic examination
- Any identifying information maintained in personal, medical, or other files, if the public disclosure thereof, would constitute an unreasonable invasion of privacy.
- Records of law enforcement agencies associated with the detection and investigation of crime, as well as internal records and notations kept by such law enforcement agencies for internal use in issues connected to law enforcement
- Specific information that is statutorily excluded from disclosure
- Information included in or relating to inspection, operation, or condition reports made by, or on behalf of any agency charged with the regulation or supervision of financial institutions, excluding those mandated by law to be published in newspapers.
- Records, archives, documents, or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological, or battlefield sites or constituting gifts to any public body with restrictions on their use or whose handling would irreparably damage such record, archive, document, or manuscript
- Internal memos or letters that a public entity receives or prepares
- Records compiled, produced, or kept in order to prevent, mitigate, or react to terrorist actions or threats of terrorist activities, the public disclosure of which would jeopardize public safety or health
- Those portions of records that contain specific or unique vulnerability assessments, response plans, data, databases, and inventories of goods or materials collected or assembled in response to terrorist acts; and communication codes or deployment plans for law enforcement or emergency response personnel
- Specific intelligence information and investigation records relating to terrorism crimes, or the potential of terrorist acts exchanged between federal, international, state, and local law enforcement authorities, as well as other agencies under the Department of Military Affairs and Public Safety
- National security documents classified by federal executive order and not subject to public disclosure under federal law that are exchanged across federal agencies, as well as other records relating to national security briefings to aid state and local governments in preparing for acts of terrorism
- Computer, telecommunications, and network security records, passwords, security codes, or programs used to respond to or prepare against terrorist activities
- Plans for security or disaster recovery, risk assessments, testing, or the findings of those tests
- Architectural or infrastructural blueprints, maps, or other documentation indicating the location or layout of buildings, including computer, telecommunications, or network infrastructure used to prepare for or respond to terrorism
- Specific engineering mappings and descriptions of current public utility equipment and plants
- Security system facility codes or codes for secure applications of security systems
- Customer proprietary network information of telecommunications carriers, equipment manufacturers, and individual customers under 47 U.S.C. § 222
- Specific records of the Division of Juvenile Services, Division of Corrections, and the Regional Jail Authority related to the design of a correctional, jail, and detention facility operated or owned by the agency.
How Do I File a West Virginia Freedom of Information Act Request?
West Virginia does not have a centralized repository for public records. Hence, when requesting a public record, the requester must contact the agency functioning as the custodian of that specific record. The requested record's intended use and purpose do not need to be stated on your request. You may obtain a record custodian's contact information by visiting the agency's website. Requesters of public records are advised to strictly adhere to the request rules or policies of each agency in inspecting or copying public records from each agency. It is possible to complete a West Virginia FOIA application form online on an agency’s website or complete a downloadable request form from the website, which may then be sent to the relevant mailing address.
You can also make a written request for public records. Compared to informal requests made over the telephone, a record custodian may find a written request more helpful in promptly identifying the record and responding to you. When you write a formal request for public records, it is recommended that you provide reasonably specific information about the record you seek. Also, you should include the requester's name, phone number, mailing address, and email address in the written request.
The following are examples of filing public record requests in West Virginia:
West Virginia State Treasurer’s Office
Building 1, Room E-145
1900 Kanawha Boulevard, East
Charleston, WV 25305
Phone: (304) 558-5000
The West Virginia State Police: File requests by fax to (304) 746-2246 or by mail to:
ATTN: FOIA Request
725 Jefferson Road
South Charleston, WV 25309-1698
What is the Cost of a Freedom of Information Act Request in West Virginia?
The WVFOIA allows each public agency to establish its own fees for copying or inspecting public records. However, under W. Va. Code § 29B-1-3(e), the fees must be reasonably calculated to reimburse the agency for the actual cost incurred in making a reproduction of the requested record. The WVFOIA instructs public bodies to narrowly construe the "actual cost of reproduction," such that per-page costs are comparable to commercial copying charges. The WVFOIA prohibits levying any charges for research and search time used by officials of a public body in locating the requested record.
Typical charges for copying public records are $0.25 per page and $0.50 for certified copies of reproduced records.
How Long Does it Take to Respond to a Freedom of Information Act Request in West Virginia?
Per W. Va. Code § 29B-1-3(d), a custodian of records must, upon request for a public record under the WVFOIA, make the sought records available as soon as is practicable. Within 5 days, not including legal holidays, Saturday, or Sunday, the public body must:
- Furnish the requester with copies of the requested information;
- Advise the requester of the place and time where the requested materials may be inspected or copied; or
- Deny the request but include a written statement specifying the reasons for the denial. The denial statement must also indicate that the custodian's responsibility to produce the requested record is at an end and inform the requester of the opportunity to file an appeal to the court.
Pursuant to W. Va. Code § 29B-1-5(1), requesters denied access to public records may institute proceedings for injunctive or declaratory relief in the circuit court. However, the law requires that the circuit court be in the county where the requested public record is maintained. If the exigency of the moment permits, it is recommended that a requester considers sending a letter or certified mail stating that the time for a response is over and requesting an immediate response. These communications can help requesters create paper trails that may be attached to court complaints if lawsuits are eventually filed.