D/B/A PARKERSBURG SENTINEL CO.,
Plaintiff Below, Appellant
CITY OF WILLIAMSTOWN,
A MUNICIPAL CORPORATION,
Defendant Below, Appellee
Jacqueline A. Wilson, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for Appellant
Patrick E. McFarland, Esq.
Hague & McFarland
Parkersburg, West Virginia
Attorney for Appellee
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. To the extent that information in an incident report
dealing with the detection and investigation of crime will not
compromise an ongoing law enforcement investigation, we hold that
there is a public right of access under the West Virginia Freedom
of Information Act.
2. When incidents affecting public safety and welfare
can be publicized without revealing the identities of juveniles
involved by means other than the application of a blanket rule of
nondisclosure, an incident report should be released to the press
with the names of any juveniles (along with any information that
could reasonably lead to the discovery of the identity of the
juveniles) redacted; redaction offers the least intrusive means of
protecting the identity of juveniles, while respecting the right of
the public under the West Virginia Freedom of Information Act,
W. Va. Code, 29B-1-1  et seq.
3. Broadly defining juvenile records to include
redacted incident reports is not necessary to protect the identity
of the juveniles and to preserve the confidentiality of their
On 10 March 1993, The Parkersburg News, a division of
Ogden Newspapers, Inc., made a written request under the West
Virginia Freedom of Information Act (FOIA)See footnote 1 to review the
Williamstown Police Department's incident report of a 22 February
1993 fight between two juveniles involving a gun. The newspaper
requested a redacted copy of the report-- one that did not name the
two juveniles. The newspaper's request was allegedly made in an
effort to inform the public about incidents that impact the public
safety and welfare. The newspaper asserts that it has historically
been granted access to these documents.
The City denied the newspaper's request because the
incident report was part of the file of a law enforcement agency,
and because the requested information concerned juveniles. Based
upon the City's denial, the newspaper filed a Complaint for
Declaratory and Injunctive Relief in the Circuit Court of Wood
County, requesting that the court enjoin the City of Williamstown
from withholding information contained in the police incident
report, pursuant to the West Virginia Freedom of Information Act,
W. Va. Code 29B-1-1  et seq. In response, the City
proffered a Motion to Dismiss.
The Circuit Court granted the City's motion to dismiss on
the grounds that: (1) the requested incident report is exempted
from disclosure under the law enforcement exemption to the Freedom
of Information Act; and (2) the incident report is not a public
record because the reported incident involves juveniles. This
appeal followed. In view of the clear public policy in favor of
the disclosure of public records, and the ability to release
redacted documents to assure that information that might lead to
the disclosure of the juveniles identities is not revealed, we
The Circuit Court ruled that the police incident report
requested by the press was not a public record subject to
disclosure under the West Virginia Freedom of Information Act, W.
Va. Code 29B-1-1  et seq. Although this presents an issue of
first impression before the Court, we find the definition of
"public record" in W. Va. Code 29B-1-3  to be plain and
unambiguous. "Public record" as used in the Act is broadly defined
as "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) .
The West Virginia Freedom of Information Act was adopted
by the legislature in 1977. The purpose of the legislation is to
open the workings of government to the public so that the
electorate may be informed and retain control. W. Va. Code 29B-1-1
. In order to facilitate this purpose, this Court has stated
on numerous occasions that the disclosure provisions of the FOIA
are to be liberally construed. Daily Gazette Co. v. Caryl, 181 W.
Va. 42, 380 S.E.2d 209 (1989); 4-H Road Community Ass'n v. WVU
Foundation, Inc., 182 W. Va. 434, 388 S.E.2d 308 (1989); Queen v.
West Virginia Univ. Hosps., Inc., 179 W.Va. 95, 365 S.E.2d 375
West Virginia's Freedom of Information Act ("FOIA") set
forth in W. Va. Code 29B-1-1 , et seq., provides in its
declaration of policy:
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is a servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.
[Emphasis added.] Accordingly, a liberal interpretation should be given to the definition of "public record."
In this case, given the significance of keeping the
public informed on matters of general welfare, we find that police
incident reports are "public records" as defined by W. Va. Code
29B-1-2 . As a rule, statutes enacted for the public good
are to be interpreted in the public's favor. The public has an
interest in receiving information about criminal activity within
the community. Furthermore, the police are conducting "the
public's business" when they respond to reported incidents of
crime. The incident report was written by a public officer, who
was authorized to do so, and the report was owned and retained by
a public law enforcement agency. There is no doubt that the report
in question is a "public record" within contemplation of the West
Almost every state has some open records law similar to
the West Virginia FOIA, and we are not alone in finding police
incident reports to be public records subject to disclosure under
Freedom of Information Act. Many jurisdictions considering this
issue have also held that police incident reports are public records.See footnote 2 Hengel v. Pine Bluff, 821 S.W.2d 761 (Ark. 1991); Asbury
Park Press, Inc. v. Borough of Seaside Heights, 586 A.2d 870 (N.J.
1990); State v. McDaniel, 504 So.2d 160 (La. 1987); South Coast
Newspapers, Inc. v. City of Oceanside, 160 Cal. App. 3d 261, 206
Cal. Rptr. 527 (1984).
West Virginia has both statutory and common law bases
allowing access to public records. The West Virginia Freedom of
Information Act, W. Va. Code 29B-1-1  et seq.; State v.
Harrison, 130 W. Va. 246, 43 S.E.2d 214 (1947); State ex rel.
Charleston Mail Association v. Kelly, 149 W.Va. 766, 143 S.E.2d 136
(1965); Daily Gazette Co., Inc. v. Withrow, 177 W.Va. 110, 350
S.E.2d 738 (1986). Although we find that the incident report at
issue is a "public record", disclosure is still not required if the
requested record falls within one of the exceptions to the West
Virginia Freedom of Information Act.
The FOIA states that "[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 section four [§ 29B-1-4]
of this article." W. Va. Code 29B-1-3(1) . W. Va. Code 29B-
1-4  states, in pertinent part:
The following categories of information are specifically exempt from disclosure under the provisions of this article:
(4) Records of law-enforcement agencies that
deal with the detection and investigation of
crime and the internal records and notations
of such law-enforcement agencies which are
maintained for internal use in matters
relating to law enforcement;
(5) Information specifically exempted from disclosure by statute;
We shall address these two exceptions separately.
We previously addressed the law enforcement records
exception in Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799
(1985), albeit not specifically as applied to police incident
reports.See footnote 3 In Hechler, we stated that primary purpose of the law
enforcement exemption is "to prevent premature disclosure of
investigatory materials which might be used in a law enforcement
action."See footnote 4 Id. at 447, 333 S.E.2d at 812, quoting, Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054,
2059, 72 L.Ed.2d 376, 383 (1982). The meaning of the law
enforcement exemption was clarified when we stated that:
"Records . . . that deal with" the detection and investigation of crimes, within the meaning of W. Va. Code 29B-1-4(4) , do not include information generated pursuant to routine administration or oversight, but is limited to information compiled as part of an inquiry into specific suspected violations of the law.
Hechler, 175 W.Va. at 447, 333 S.E.2d at 813.
The report sought by the newspaper in this case was
prepared following an inquiry into a specific violation of the law;
i.e., a fight between the two juveniles involving a gun.
Therefore, the document sought by the newspaper was a law
enforcement record within the meaning of the exemption.See footnote 5 In Hechler we noted that the state of Texas has an exemption worded
identically to ours.See footnote 6 Hechler, 175 W.Va. at 448, 333 S.E.2d at
813. Similarly, Texas law provides a useful guide in this case
because Texas has considered this issue specifically. Texas also
has a similar law regarding the confidentiality of juvenile
records; however, the confidentiality of juvenile records shall be
The appellant newspaper asserts that it merely requested
a redacted copy of the incident report containing factual
information providing a basic description of what happened, when it
happened, and where it happened. This is the type of information
in the "offense report" considered by the Texas Court of Civil
Appeals in Houston Chronicle Pub. Co. v. City of Houston, 531
S.W.2d 177 (Tex. Civ. App. 1975), although the offense report at
issue in that case did not involve juveniles. In Houston Chronicle
the court held that the news media and the public have a right of access to information concerning crime in the community and to
information relating to activities of law enforcement agencies
under the first amendment to the U. S. Constitution. Offense
reports or "incident reports," include information such as: details
of the offense committed, the time and location of the incident,
the identity of the complainant, the premises and property
involved, any identification or description of witnesses, and
additional information such as the weather, and the names of the
investigating officers. Houston Chronicle, 531 S.W.2d at 179.
Houston Chronicle also held that an offense report is a
record of a law enforcement agency, dealing with the "detection and
investigation of crime", within the statutory exemption to the
Texas FOIA.See footnote 7 531 S.W.2d at 185. Nonetheless, in recognition of
the first amendment right of access, the court in Houston Chronicle
applied a balancing test weighing the public's right to know about
police and criminal activity in the community against the City and
State "interest in preserving the secrecy of their records from the
eyes of defendants and their counsel in criminal actions." [Footnote omitted.] Houston Chronicle, 531 S.W.2d at 186. Noting
that these offense reports are extremely useful to the press, "in
the discharge of its obligation to inform the public", the court
held that these competing interests can be met by allowing partial
access to information contained in the offense reports. Id.
Just as the court in Houston Chronicle, supra, did not
end its analysis upon finding that the offense report was within
the law enforcement records exception to the state's FOIA, we too
must continue our analysis. According to our case law, the fact
that a document is a law enforcement record does not automatically
exclude it from disclosure under the FOIA. Once a document is
determined to be a law enforcement record, it may still be
disclosed if society's interest in seeing the document outweighs
the government's interest in keeping the document confidential.
In Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50
(1984), this Court reviewed the history of the law enforcement
exemption in this state and in the federal Freedom of Information
Act,See footnote 8 noting that our law enforcement exemption differs from the
federal law enforcement exemption. Before 1974, the federal act was very much like our current FOIA; however, in 1974 the federal
act was amended to include certain enumerated exemptions under the
general enforcement exemption and to require disclosure in all
other circumstances. Before the 1974 amendment the federal
exemption for law enforcement and investigatory records had been
interpreted to permit a blanket exemption for all law enforcement
and investigatory records.See footnote 9 We stated in Sattler that:
Although our law enforcement records exemption was adopted after the federal exemption had been amended, it did not include the new language comparable to the federal statute which enlarged access to these records. . . . Nonetheless, a good argument could be made that material should only be exempt if it protects an interest that weighs more greatly than the public's right to know.
[Emphasis added.] Sattler, 318 S.E.2d at 52.
The Texas court in Houston Chronicle, supra, applying a
balancing test similar to ours stated in Sattler, found that there
was a right of access to information contained on the first page of
the offense report "structured to include the offense committed,
location of the crime, identification and description of the
complainant, the premises involved, the time of the occurrence,
property involved, vehicles involved, description of the weather,
a detailed description of the offense in question, and the names of the investigating officers."See footnote 10 Houston Chronicle, 531 S.W.2d at
187. This right of access did not include parts of the offense
report containing a suspect's confession, or officers' views on the
credibility of witnesses, statements by informants, laboratory
tests or ballistics reports, fingerprint comparisons, or officers'
speculations about the guilt of the suspect. To the extent that
information in an incident report dealing with the detection and
investigation of crime will not compromise an ongoing law
enforcement investigation, we hold that there is a public right of
access under the West Virginia Freedom of Information Act.
Our analysis in this case is complicated by the fact that
the reported incident involved juveniles. Thus, we must weigh on
the one hand the public's right to know, and on the other hand we
must weigh the state's interest in keeping juvenile records and
proceedings confidential. The law treats juveniles differently
than others. "From the earliest time infants were regarded as
entitled to special protection from the State." State v. Boles,
147 W. Va. 674, 678, 130 S.E.2d 192, 195 (1963). Our juvenile
system seeks to rehabilitate youthful offenders rather than punish them. "The Juvenile Court is theoretically engaged in determining
the needs of the child and of society rather than adjudicating
criminal conduct. The objectives are to provide measures of
guidance and rehabilitation . . . not to fix criminal
responsibility, guilt and punishment." Kent v. United States, 383
U.S. 541, 554, 86 S.Ct. 1045, 1054 (1966).
In order to accomplish the important goals of the
juvenile system, it is essential that certain aspects of a juvenile
criminal investigation not become public. If a juvenile who has
committed a crime has any hope of being rehabilitated, the state
must take steps to keep the child's name from being associated with
criminal activity.See footnote 11 Thus, the state's interest in keeping juvenile
information confidential is very high. Indeed, at one time this
state placed such a high value on the secrecy of juvenile
proceedings that it sought to make criminal the publication of a
child's name in a juvenile proceeding. See Daily Mail Pub. Co. v.
Smith, 161 W. Va. 684, 248 S.E.2d 269 (1978) (holding that the
state may not place a prior restraint on a newspaper from printing
the name of a child in a juvenile proceeding.)
Because of the sensitive nature of crimes involving
juveniles and the central role confidentiality plays in a
juvenile's rehabilitation, the scale generally tips in favor of
confidentiality rather than disclosure of juvenile law enforcement
records. In this case, the newspaper argues that it was merely
seeking information regarding the time, date, place and nature of
the incident, not the juveniles' names. In Hechler, we stated
that: "the following two salient points must be remembered in any
FOIA case, regardless of which exemption is claimed to be
applicable. First, the fullest responsible disclosure, not
confidentiality, is the dominant objective of the Act. Second, the
exclusive exemptions from disclosure must be narrowly construed."
[Emphasis added.] Hechler, 175 W.Va. at 445, 333 S.E.2d at 810,
(citing Department of Air Force v. Rose, 425 U.S. 352, 360-362, 96
S.Ct. 1592, 1599, 48 L.E.2d 11, 21-22 (1976)).
We find that the Appellant newspapers make a strong case
for providing public access to incident reports, so that the press
can fulfill its obligations to keep the public informed. We do not
wish to unnecessarily close the door on the press and the public's
right of access to factual information about incidents impacting
public safety and welfare, whenever the reported incident involves
a juvenile. Nor would it be prudent to allow access in such a way
that we subvert the strong public policy against disclosure of the
identity of juvenile offenders.
It seems to us that both of these interests can be
reconciled by finding a constitutionally protected right of the
press and public to a redacted copy of incident reports involving
juveniles, structured to omit any information that could reasonably
lead to the discovery of their identities. Because information
such as: the exact time coupled with the exact location of the
incident; the names of witnesses; and, the identity of the
complainant would not preclude the press from conducting further
research and interviews leading to disclosure of the names of the
juveniles involved, this type of information should also be
As a general rule, courts have invalidated laws placing
restrictions on rights protected by the First Amendment and W. Va.
Constitution, Art. III, §7 when the law at issue can be revised in
such a way that it places less restraint on speech. Even when a
state has the power to regulate an area dealing with free speech,
as is the case here because of the interest in preserving juvenile
confidentiality, it must not do so "by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms." NAACP v. Alabama, 377 U.S. 288, 307 (1964). Our goal
is reasonable disclosure within the limits imposed by the State's
interest in preserving the anonymity of juveniles. When incidents
affecting public safety and welfare can be publicized without
revealing the identities of juveniles involved by means other than the application of a blanket rule of nondisclosure, an incident
report should be released to the press with the names of any
juveniles (along with any information that could reasonably lead to
the discovery of the identity of the juveniles) redacted; redaction
offers the least intrusive means of protecting the identity of
juveniles, while respecting the right of the public under the West
Virginia Freedom of Information Act, W. Va. Code, 29B-1-1  et
The Code states that "[a]ll records of the state
department, the court and its officials, law-enforcement agencies
and other agencies or facilities concerning a child as defined in
this chapter shall be kept confidential and shall not be released
. . . ." [Emphasis added.] W. Va. Code 49-7-1 . In fact,
the legislature concluded that the confidentiality of juvenile
records was so necessary that it made it a misdemeanor willfully to
violate W. Va. Code 49-5-17  or W. Va. Code 49-7-1 .
As we previously noted, Texas law offers guidance on the issues
presented in this case. The Texas juvenile records confidentiality
statute, Tex. Family Code Ann. § 51.14 (1994), is similar to West
Virginia's statutes in that it protects against public inspection
of law enforcement records "concerning a child."See footnote 12
A recent opinion of the Texas Attorney General noted that
"juveniles must be treated differently" in accordance with the
Family Code; however, the rest of the police information, including
the offense and booking information, notation of any release or
transfer, details of the arrest, and bonding information, must be
released under the provisions of the open records law. Tex. O.R.D.
No. 394 (July 28, 1993). The opinion concluded that "the names of
juveniles, and any information which might identify a juvenile, may
be withheld from disclosure...regardless of where it might be found
in the police department's law enforcement records." Id. at 7.
We conclude that West Virginia confidentiality statutes
should likewise be read to promote the goal of protecting juvenile
anonymity, rather than broadly construed to prevent disclosure of otherwise public information that would be contained in redacted
police incident reports involving juveniles. The Code states that
"juvenile records are not public records." W. Va. Code 49-5-17(c)
. The Circuit Court ruled that the incident report was
specifically exempted from disclosure under W. Va. Code 29B-1-4(5)
 as a result of the juvenile confidentiality statutes; andSee footnote 13
that this provision overrides the public records disclosure
provisions of the West Virginia FOIA. However, we hold that this
section of the Code is not applicable to the information requested
by the Appellant newspapers.
The newspapers requested access to factual information
contained in a 22 February 1993 police incident report, involving
juveniles, from which the identity of the juveniles had been
redacted. Incident reports are basically factual recitations of
the responding officer's knowledge of the occurrence. Asbury Park
Press, supra. Broadly defining juvenile records to include
redacted incident reports is not necessary to protect the identity
of the juveniles and to preserve the confidentiality of their
records. Although the statute is intended to protect the
confidentiality of juvenile records, releasing a redacted copy of the incident report at issue in this case would not require a
breach of that confidentiality.See footnote 14
Accordingly, we hold that the factual data contained in
a properly redacted incident report does not rise to the level of
a "juvenile record" protected from disclosure (absent court order)
by the confidentiality statutes. Therefore, allowing access to
these reports will not impede any law enforcement function, nor
will it compromise juvenile confidentiality.See footnote 15 The Circuit Court
was given a copy of the incident report and had the opportunity to
determine which portions of the report were confidential and should
be redacted. Instead, the Circuit Court ruled that the entire
document was exempt from disclosure. For the aforementioned
reasons, we reverse the ruling of the Circuit Court of Wood County
and remand for further proceedings consistent with this opinion.
Reversed and Remanded.
Footnote: 1 W. Va. Code 29B-1-1 .
Footnote: 2 Although none of the cases cited here involved juveniles, we shall address the issue of juvenile confidentiality separately.
Footnote: 3 In Hechler, supra, we ruled that the law enforcement exception did not prohibit the Secretary of State from releasing the names and addresses of security guards, furnished to the state pursuant to its licensing and regulation of the guards' employer.
Footnote: 4 The United States Supreme Court has stated that in originally enacting the law enforcement exemption to the federal FOIA,
Congress recognized that law enforcement
agencies had legitimate needs to keep certain
records confidential, lest the agencies be
hindered in their investigations or placed at
a disadvantage when it came to present their
cases. Foremost among the purposes of this Exemption was to prevent 'harm [to] the Government's case in court,' S. Rep. No. 813, 89th Cong., 1st Sess. (1965) . . . .
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).
Footnote: 5 In Hechler, we stated:
The language, "internal records and notations...which are maintained for internal use is matters relating to law enforcement," within the meaning of W. Va. Code 29B-1-4(4) , refers to confidential investigative techniques and procedures."
175 W.Va. at 447-48, 333 S.E.2d at 813. The basic factual information contained in the incident report at issue in this case makes no reference to confidential police investigative techniques
and procedures. Thus, our inquiry shall focus exclusively on the law enforcement records portion of W. Va. Code 29B-1-4(4) .
Footnote: 6 Tex.Rev.Civ.Stat.Ann., art. 6252-17a, §§3(a)(1), 3(a)(8) (Vernon Supp. 1985). Section 3(a)(1) exempts "information deemed confidential by law, either Constitutional, statutory, or by judicial decision." [Emphasis added.] That section performs essentially the same function as the exception found in W. Va. Code 29B-1-5, banning disclosure of "[i]nformation specifically exempted from disclosure by statute." The language of the Texas law enforcement records exception contained in Section 3(a)(8), is identical to W. Va. Code 29B-1-4, the text of which is quoted in the body of this opinion.
Footnote: 7 The Appellees' brief incorrectly concluded that the mere fact that the Texas court in Houston Chronicle found the incident report to be within the law enforcement exception identical to our exception set forth in W. Va. Code 29B-1-4(4) , made the Appellants' reliance on this case fatal to their claim for relief. Had the appellees' read the entire case to its conclusion, they would have discovered that the court applied further analysis to conclude that there is a constitutionally protected right of access to certain information contained in offense reports.
Footnote: 8 The federal Freedom of Information Act is located at 5 U.S.C. § 552, the law enforcement exception is at 5 U.S.C. § 552 (b)(7).
Footnote: 9 For a complete history of the federal law enforcement exemption see FBI v. Abramson, 456 U.S. 615 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978).
Footnote: 10 This Court has also created a balancing test to be used under the invasion of privacy exemption of the FOIA. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986).
Footnote: 11 In Jeffery v. McHugh, 166 W. Va. 379, 273 S.E.2d 837 (W. Va. 1981), this Court noted that "[t]he principle that juvenile records should be confidential and, therefore, should not be public records is well accepted and is an express part of the law of most states." 166 W. Va. at 380 n.1, 273 S.E.2d 838-39 n.1 (quoting ILA/ABA Juvenile Justice Standards Project, Standards Relating to Juvenile Records and Information Systems, § 15.1 (1977)).
Footnote: 12 The confidentiality provisions of the Texas statute read, in pertinent part:
(c) . . . law-enforcement files and
records concerning a child shall be
kept separate from files and records
of arrests of adults . . .
(d) . . . the law-enforcement files and records are not open to public inspection nor may their contents be disclosed to the public, but inspection of the files and records is permitted by:
(1) a juvenile court having the child before it in any proceeding;
(2) an attorney for a party to the proceeding; and
(3) law-enforcement officers when necessary for the discharge of their official duties.
Footnote: 13 The juvenile records confidentiality statutes appear in W. Va. Code 49-5-17  (expungement of records) and W. Va. Code 49-7-1  (confidentiality of records), all in the chapter entitled "Child Welfare".
Footnote: 14 The Legislature recognized that disclosure is appropriate in certain circumstances, provided that the identity of the juvenile is protected. Specifically, W. Va. Code 49-5-17(d) provides for disclosure when a "person doing research requests disclosure, on the condition that information which would identify the child or family involved in the proceeding shall not be developed."
Footnote: 15 In State v. Van Isler, 168 W.Va. 187, 186, 283 S.E.2d 836, 837 (1981), we stated that "[p]art of the purpose and intent behind that scheme is to protect the anonymity of juvenile offenders and to assure that they are accorded a fresh start, unhaunted by past trouble, when they reach their majority. See, State ex rel. Daily Mail Pub. Co. v. Smith, 161 W.Va. 684, 248 S.E.2d 269 (1978), aff'd, 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)."