Overview

• One of the broadest public records law, covering executive, judicial, and the legislature
• Strict five-day response window, with strong penalties including jail time
• Lack of formal appeals process requires legal action

West Virginia Freedom of Information Law doesn’t mess around, as best summed up in the second sentence of its statute: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

That sentiment is strongly reflected in the law, which applies broadly to all “writing” prepared to a “public body” - which includes the executive, judicial, and legislative branches, including some agencies - like public hospitals - and some records - like confidentially agreements - that are widely exempted elsewhere. In addition, the state’s five-day deadline isn’t some vague guideline, but a rule that comes with strict penalties if not properly enforced, such as potential jail-time.

Exemptions must be cited from the 19 recognized by state law, which are impressively specific - to give you an example, exemption 16 covers “codes for facility security systems.” Further, agencies are only allowed to charge reproduction fees, rather than processing costs - preventing the infamous “exemption by ransom.”

That said, there is no formal appeals process, so an unsatisfactory response or overlong delays can only be fought in court. The process for filing a FOIA lawsuit is streamlined, however, and attorney’s fees can be awarded, encouraging litigation.

The Law

• 5-day response time
• Applies broadly to all “public bodies” including executive, judicial, and the legislature.
• Residents and non-residents may submit requests, and there are no statements of purpose or restrictions
• No appeals process.

Supplemental

Definition of public records - [W.Va. Code§ 6-9A-1]

Open Governmental Proceedings Act - [W.Va. Code§ 6-9A-1]

The Details

Can you submit a request if you’re not a resident?

Yes. West Virginia law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

Yes.

Judicial?

Yes, with some exceptions for the Governmental Proceedings Act.

Legislative?

Yes.

Is there a designated records custodian?

Yes.

Who is exempted?

An organization that could reasonably be argues does not construe a “public body.”

How can requests be submitted?

In-person?

Yes, though the Attorney General notes in the FOIA handbook:

Written request is advisable in order to avoid misunderstandings regarding the timing and scope of the request,and to ensure that the information sought is stated “with reasonable specificity”

Verbally?

Yes, see above.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

5 Days.

The custodian, upon demand for records made under this statute, shall as soon as is practicable but within a maximum of five days not including Saturdays, Sundays or legal holidays Furnish copies of the requested information, Advise the person making the request of the time and place at which he or she may inspect and copy the materials; or Deny the request stating in writing the reasons for such denial. §29B-1-3

Are there provisions regarding the extension of response times?

There is currently no provision dictating how agencies may extend time.

Does the agency have to give you a tracking number or estimated date of completion?

No and no. Nothing in the law specifically says that such things are necessary.

Can they ask why you ask?

No. Nowhere in the law does it say that a records custodian can demand to know the reason for the request. However, records custodians are encouraged to release materials in the public interest.

What enforcement?

The Supervisor of Public Records is the primary enforcer of the public records law within the state. Appeals should be sent to his office. From there, the SPR can order the custodian to comply; further refusal to do so may result in referral to the Attorney General or the appropriate district attorney.

Fees?

Yes, but strictly for reproduction costs.

The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records. A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records. §29B-1-3

Are there fee waivers for media requests or those made in the public interest?

No.

Attorney’s fees - Can you win them?

Yes.

Any person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to section five of this article shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records. §29B-1-7.

Exemptions and Appeals

What exemptions exist?

There is a presumption that all records are public. However, statutes and court cases have combined to create specific exempted categories. (See below for more specific applications.)

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

There is no appeal option.

To whom does the appeal go?

There is no appeal option.

Can you appeal a delay?

There is no appeal option.

Do agencies have to tell you where to send your appeal?

There is no appeal option.

What if your appeal is denied?

There is no appeal option.

Where else can you turn?

Court:

“Any person denied the right to inspect the public record of a public body may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.” §29B-1-5

Are all appeals kept officially?

There is no appeal option.

Resources

Organizations

The following organizations offer resources for those seeking public records in West Virginia.

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterik have indicated a willingness to offer pro bono services on a case by case basis.

Successful appeals

The State of West Virginia does not have an appeals process.

News Stories on Public Records Laws in the State

Submit a new link

Blogs and feeds primarily focused on public records in West Virginia

Public Records Guide and Advice

• Office of the Attorney General’s FOIA Handbook
• RCFP’s Open Government Guide
• Secretary of State’s Freedom of Information Act (FOIA) Database

Newsletters

Big FOIA wins

Have a public records success story? Let us know!