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No. 34768 - The Associated Press v. Steven D. Canterbury, Administrative Director of the
West Virginia Supreme Court of Appeals
Workman, Justice, concurring, in part, and dissenting, in part:
I agree with the majority's conclusions to this extent:
(1) A trial court may conduct an in camera review of records subject to a request under West
Virginia's Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (2007 & Supp.
(2) E-mails are writings subject to disclosure under FOIA, and FOIA may be used to
obtain nonexempt public records of the judicial branch.
(3) A personal e-mail communication by a public official or public employee, which does
not relate to the conduct of the public's business, is not a public record. (However, as more
fully set forth herein, I do not agree with the majority's conclusion that the messages at issue
in this case do not relate to the conduct of the public's business.)
(4) Campaign-related e-mails are not per se (See footnote 1)
subject to disclosure.
But while the lower court released the five campaign-related e-mails (albeit for
the wrong reason, i.e. that they were public records because they related to campaign
activity), and the majority has held that none of the thirteen e-mails were public records, I
would hold that all thirteen e-mails at issue should be considered public records, because
they contain information relating to the conduct of the public's business, based on the context
in which they were written. They reflect that there was an ongoing personal relationship
between a sitting Supreme Court Justice and the chief corporate officer of a litigant in a
major case at a time when the Justice was participating in that case. John Q. Citizen is
entitled to have that information and to accord to it whatever weight and meaning he deems
Accordingly, I must respectfully dissent from the majority's conclusion that a
determination of whether an e-mail communication is a public record subject to FOIA
disclosure is restricted to an analysis of the content of the writing and that such analysis
cannot be context-driven. Further, I disagree with the majority's conclusion that the e-mails
which are the subject of this case were strictly personal and therefore exempt from public
disclosure. While it is accurate that the substance
of the messages was primarily personal
in nature, (See footnote 2)
it is that very fact, when viewed in the context of the juxtaposition of Justice
Maynard's position as a Supreme Court Justice with his participation in the then-pending
litigation involving Mr. Blankenship's companies, which makes them relevant to the conduct
of the public's business. The fact that a judicial officer is a close personal associate of a
litigant whose case he is hearing is
relevant public information.
I. The Factual Background
In order to better understand the issues before this Court and the important role
that the context of a communication can play in determining whether a writing contains
information that relates to the conduct of the public's business, a more thorough description
of the factual background of this case is needed. The majority provides no factual
background whatsoever, so that the casual reader might never understand why the context
of the communications is so important in resolving whether these were public records. All
the majority tells us is that Mr. Blankenship is the Chief Executive Officer (CEO) of
Massey Energy Corporation, but with only that information, one might be left to wonder why
his relationship with Justice Maynard or their communications would be of interest to the
Associated Press (AP) or to the general public of the State of West Virginia. That
background is essential to a meaningful examination of this legal issue.
In early 2008, the AP submitted two requests pursuant to West Virginia's
FOIA to Steven D. Canterbury, the Administrative Director of the West Virginia Supreme
Court of Appeals. Both requests sought a variety of documents, including records reflecting
communications between Justice Elliot E. Maynard and Donald L. Blankenship. At the time
of the AP's requests, an appeal of a civil verdict in the amount of approximately $50 million
against Massey Energy Company, Caperton v. A.T. Massey Coal Company, Inc.
, No. 33350,
_ W. Va._, _ S.E.2d _, 2009 WL 3806071 (W. Va. filed Nov. 12, 2009), was pending
before this Court. Mr. Blankenship, as the Chairman and CEO of Massey Energy Company, (See footnote 3)
was obviously closely connected to the defendant corporate entity in that suit.
Prior to the AP's FOIA requests, on November 20, 2007, the Court, with
Justice Maynard voting in the majority, had issued its first decision in the Caperton
reversing the $50 million verdict against Massey in a 3-2 vote. On December 20, 2007,
following the verdict against them, the Plaintiffs in Caperton
filed petitions for rehearing.
While those petitions were pending, in early January 2008, photos surfaced showing Justice
Maynard and Mr. Blankenship together in Monte Carlo, Monaco, during the summer of 2006
- thus prior to the Court's original decision in Caperton
, but while that case was pending.
Shortly after the photos surfaced, the Plaintiffs in Caperton
asking Justice Maynard to recuse himself from that case. The AP filed its first FOIA request
on January 16, 2008, while that motion to recuse was pending. Justice Maynard then
officially recused himself from all pending Massey cases on January 18, 2008. (See footnote 4)
24, 2008, the Court, without Justice Maynard's participation, granted the Plaintiffs' petitions
for rehearing in Caperton
and vacated its November 2007 decision. (See footnote 5)
After the AP submitted the first of its FOIA requests on January 16, 2008, Mr.
Canterbury released certain information, but refused to release thirteen e-mails that had been
sent by Justice Maynard to Mr. Blankenship from Justice Maynard's official Supreme Court
of Appeals e-mail address. The AP then made its second request on February 29, 2008, and
Mr. Canterbury again refused to disclose the e-mails. The thirteen e-mails at issue had been
sent over a two-year time period, from January 2006 through November 2007. At all relevant
was pending before the Court in some form.
In addition, throughout the fall of 2007 and winter of 2008, Justice Maynard
was in the midst of a re-election campaign, seeking to secure another term on the West
Virginia Supreme Court of Appeals. (See footnote 6)
It is under these circumstances that the AP made its
At the outset, an examination of West Virginia's FOIA statute is in order. It
provides that [e]very person has a right to inspect or copy any public record of a public
body of this state . . . . W. Va. Code § 29B-1-3(1) (emphasis added). The focus of the
majority's decision, and my disagreement therewith, centers on the definition of public
record. West Virginia Code § 29B-1-2(4) defines a public record as any writing
containing information relating to the conduct of the public's business, prepared, owned and
retained by a public body. Notably, nothing in the plain language of the statute prevents a
court from considering the context in which a document is written in determining whether
it contains information relating to the conduct of the public's business.
In its declaration of policy explaining the principles on which it was enacting
the FOIA law, the Legislature stated that all persons are . . . 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. Id. at § 29B-1-1. To that end, the provisions of
this article shall be liberally construed . . . . Id. This directive by the Legislature should
not be taken lightly.
Despite this clear directive, however, the majority construes the definition of
public record narrowly, not liberally, by holding that a court's consideration of whether a
particular writing is a public record is confined to the literal content of that document. I
would adopt a more liberal construction, recognizing that information relating to the conduct
of the public's business may be contained in the context in which a document is written, in
addition to the actual words of that writing.
A. The Majority's Analysis
In support of its position, the majority cites cases from many other jurisdictions
around the country holding that purely personal e-mails are not subject to disclosure. Unlike
the instant case, those seeking disclosure of records in the cited cases primarily rely on the
contention that records should be public by virtue of the fact that they are generated by a
public official on a public computer, paid for by public funds, or generated during work
hours at a public place. (See footnote 7)
The cases cited hold that these factors alone do not make a
document a public record. I agree that the same is true under West Virginia's FOIA.
However, in each and every case cited, there is either a lengthy, fact-specific
discussion as to why the documents at issue are determined to be personal in nature, and thus
exempt from disclosure under that state's FOIA, or the case is remanded to a lower court for
such analysis. In Pulaski County v. Arkansas Democrat-Gazette, Inc.
, 260 S.W.3d 718 (Ark.
2007), for example, the Supreme Court of Alabama concluded that [c]omparing the nature
and purpose of a document with an official's or agency's activities to determine whether the
required nexus exists necessarily requires a fact-specific inquiry
at 724 (emphasis
added). Moreover, it recognized that while the personal notes of a public official are not
usually public records in Arkansas, [t]here may be instances, however, in which the
personal activities of a public official or employee are inextricably linked to his or her
at 722 (quoting
John J. Watkins & Richard J. Peltz, The Arkansas
Freedom of Information Act,
91 and 93 (m & m Press, 4th ed., 2004)) (emphasis added).
Moreover, most of the cases cited by the majority also provide some standard
for analyzing writings that might otherwise be considered personal in nature. For example,
courts look to whether the writing contained a 'substantial nexus' to governmental activity, Griffis v. Pinal County
, 156 P.3d 418, 421 (Ariz. 2007), or whether the documents had a
demonstrable connection to the performance of public functions, Denver Publishing
Company v. Board of County Commissioners of County of Arapahoe
, 121 P.3d 190, 192
The majority in our case, however, performs no such factual analysis nor does
it discuss the appropriate analytical framework for determining whether a writing relates to
the conduct of the public's business. Instead, they simply make a conclusory statement that
all the e-mails at issue in the instant case are personal in nature, without attempting to discuss
whether an e-mail between a sitting Supreme Court Justice and the CEO of a corporate
litigant with a pending case worth over $50 million creates such a substantial nexus or has
any other demonstrable connection to the conduct of the public's business.
I am equally unpersuaded by the majority's reliance on two federal FOIA cases, Gallant v. National Labor Relations Board
, 26 F.3d 168 (D.C. Cir. 1994), and Bloomberg,
L.P. v. United States Securities and Exchange Commission,
357 F. Supp. 2d 156 (D.D.C.
2004). In each of those cases, the reviewing court interpreted the term agency records
under the federal Freedom of Information Act, 5 U.S.C. §§ 551 to 559. Unquestionably, the
determination of an agency record under the federal FOIA bears little relation to what
constitutes a public record under West Virginia's FOIA. Because the federal statute does
not define agency record, the United States Supreme Court has looked to the definition of
agency records set forth in the Records Disposal Act, 44 U.S.C. § 3301, which indicates that
agency records must be made under Federal law or in connection with the transaction
of public business.
U.S. Dept. of Justice v. Tax Analysts
, 492 U.S. 136, 145 (1989).
Requiring that a record be made in connection with the transaction of public
business, significantly narrows the scope of what constitutes an agency record, as
compared to West Virginia's statutory requirement that the document must simply relate
the conduct of the public's business. Because West Virginia's definition of public record
is significantly broader than the federal definition, I find the analysis of the federal statute
unhelpful and misleading in the context of the instant case.
Furthermore, the majority rejects the reasoning in Cowles Publishing Co. v.
Kootenai County Board of County Commissioners,
159 P.3d 896 (Idaho 2007), which I find
persuasive in the instant case. In Cowles
, the Supreme Court of Idaho held that the context
in which a writing is generated is relevant to whether it may be considered a public record.
In that case, a county prosecutor had exchanged e-mails with the manager of a juvenile
education and training court, who he supervised and with whom he was romantically
at 898. After a scandal emerged involving the official duties of the manager,
the prosecutor publicly defended her actions. Id.
Determining that the personal e-mails
between the two were subject to disclosure under that state's FOIA, the Supreme Court of
The public has a legitimate interest in these communications
between this elected official and the employee whom he hired
and supervised because when the JET Court's financial
problems and eventual demise became apparent to the public,
Douglas defended Kalani's management to both the Board and
the public. Whether he did so as her supervisor defending her
job performance, or whether he did so because of an alleged
inappropriate relationship is a public concern. Put another way,
Douglas's reasons for defending Kalani relate to the conduct
and administration of the public's business.
Id. at 900 (emphasis added). Thus, the context of the relationship between the prosecutor and
the manager transformed communications which would otherwise have been strictly of a
personal nature into communications relating to the conduct of the public's business.
To distinguish Cowles, the majority relies on a difference in the language of
our FOIA statute and the one found in Idaho. In Idaho [a] public record 'includes, but is
not limited to, any writing containing information relating to the conduct or administration
of the public's business prepared, owned, used or retained by any state agency, independent
public body corporate and politic or local agency regardless of physical form or
characteristics.' Id. at 900 (quoting Idaho Code § 9-337(13)).
As the Circuit Court of Kanawha County noted in the instant case, Idaho's
definition of public record closely mirrors West Virginia's definition. Both define public
record as a writing containing information relating to the conduct of the public's business,
which is prepared, owned, used or retained by a public body. Indeed, the only difference of
any significance to this case is that Idaho's definition includes the but not limited to
provision. The majority reasons that this provision permits the disclosure of any writing,
even if it does not involve 'the conduct of the public's business.'
What the majority fails to recognize, however, is that, in Cowles, the but not
limited to provision of Idaho's FOIA was completely irrelevant to the Supreme Court's
decision. Explaining its statutory scheme, the Idaho Supreme Court stated that
a record may be a public record if it is a writing that (1) contains
information relating to the conduct or administration of the
public's business, and
(2) was prepared, owned, used or retained
by a governmental agency. However, our legislature has
broadly defined public records; other records and writings may
qualify even if they do not meet this definition.
159 P.3d at 900 (internal citation omitted). In reviewing the writings at issue in that case,
however, the Idaho Supreme Court concluded it is clear that the emails contain information
relating to the conduct and administration of the public's business, and that they were
prepared, owned, and used by a public body. Id.
at 900-01. The but not limited to phrase
contained within Idaho's statute was not discussed in analyzing that case
and thus was
completely irrelevant to the court's decision. Put another way, even if Idaho's statute did not
contain the but not limited to provision, the reasoning of the Idaho Supreme Court would
not have been affected in Cowles
. Consequently, I cannot agree with the majority that the
but not limited to provision distinguishes the basis for the holding in Cowles
In reaching its conclusion, the majority's opinion completely ignores the
various ways that the context in which a document is written can both provide information
and implicate its designation as a public record. Indeed, the majority limits its discussion of
context to whether or not the public's interest in, or fascination with, an issue should be
considered in determining its status as a public record. (See footnote 8)
On this question, I agree with the
majority that the public's personal curiosity, or lack thereof, in a particular writing should not
influence whether the document is a public record. West Virginia's FOIA does not
contemplate such consideration, and I find no reasonable public policy basis for including
such consideration. That a curious public may be interested in the details of a public
official's private life does not mean that writings revealing aspects of such private life can
be equated to information relating to the conduct of the public's business. In fact,
completely personal e-mails are not accessible under FOIA. Thus, I agree with the majority
that the public's interest, i.e. purely personal curiosity, in a particular issue is not relevant to
a court's determination of whether a particular document is a public record.
B. The Role of Context
Two ways in which a consideration of context is not only relevant, but
necessary, to a FOIA determination immediately come to mind. First, context necessarily
must be considered where the meaning of a writing is not apparent on its face. For example,
consider a hypothetical e-mail from a judge to a personal friend that simply states: Go ahead
and rent the boat. A consideration of the context in which that e-mail was written is
necessary to determine whether it contains information relating to the conduct of the
public's business. If the judge and the recipient of that e-mail are merely discussing a
planned weekend adventure, and the friend has no connection to the court or any pending
cases, the e-mail is clearly personal and does not contain information relating to the conduct
of the public's business. As such, it would not be a public record nor subject to disclosure
If, however, the judge sent the hypothetical e-mail to a personal friend who also
happened to be hired by the judge to plan a court retreat, and the boat was being rented for
that purpose using public funds, such statement does relate to the conduct of the public's
business. Specifically, the context in which the e-mail was sent reveals that it relates to
official court business and involves the expenditure of public funds. As such, it would be
considered a public record and be subject to disclosure under FOIA.
In this example, the meaning of the content of the e-mail depends on
understanding the circumstances in which it was written. Thus, context can be central to
determining whether the content relates to the conduct of the public's business.
Second, the context in which a document is written can provide, in and of
itself, information relating to the conduct of the public's business. The mere fact that Justice
Maynard and Mr. Blankenship exchanged e-mails (the content of which had nothing to do
with the case then pending before the Supreme Court of Appeals) demonstrates virtually
nothing when examined solely by their literal content. (See footnote 9)
But the public can garner from the
context of the e-mails that the two are friends. That information is relevant under the
circumstances of their roles as Justice and litigant, and thus such information should be
subject to disclosure as a public record. (See footnote 10)
By way of analogy, the well-settled law in the area of free speech rights
provides support for this proposition. Specifically, the United States Supreme Court has
recognized that, in determining if particular speech - whether spoken aloud or in written form
- relates to a public concern, and thus is subject to protections under the First Amendment,
a court must consider not only the content of that speech, but the context in which it is
spoken. Connick v. Myers,
461 U.S. 138, 145-46 (1983). Specifically, in addressing this
issue, the Supreme Court has stated, [w]hether an employee's speech addresses a matter of
public concern must be determined by the content, form, and context
of a given statement,
as revealed by the whole record. Id.
at 147-48 (emphasis added).
Although the test for public record under West Virginia's FOIA obviously
is not identical to the test for whether particular speech relates to a public concern, the
parallels are clear. In both cases, a court is attempting to discern whether a communication
relates to a private or public matter. Like a determination of whether particular speech
addresses a public concern, I believe that a determination of whether a particular writing
relates to the conduct of the public's business must also include a consideration of the
context in which the communication is made.
To better explain how the context in which a writing was created can determine
whether it relates to the conduct of the public's business, I return to my earlier hypothetical
example. Assume that the e-mail sent from the judge to his personal friend, which stated
simply, Go ahead and rent the boat, is merely in reference to a planned weekend adventure.
Further assume that this personal friend also happens to be a party litigant in a case pending
before the judge. In such scenario, the content of the e-mail, taken alone, does not provide
information relating to the conduct of the public's business; it merely provides information
relating to weekend plans between friends. Nevertheless, the context in which that e-mail
was written, by a judge to a party litigant, provides, in and of itself, information relating to
that judge's conduct of the public's business. It indicates to the reader that the judge and that
party have a relationship of such a nature that they would spend a weekend together. While
such relationship does not necessarily indicate that the judge will be biased in his or her
judicial decisions or rule in an unjust manner, the mere fact that the e-mail was sent contains
information relating to the judge's performance of his or her public duties.
In the case at hand, a Justice sitting on the West Virginia Supreme Court of
Appeals communicated by e-mail on a somewhat regular basis with a friend who was the
Chairman and CEO of a party litigant with a case pending before the Court. With one
exception, the literal content of those e-mails did not contain information relating to the
conduct of public business. The fact that those e-mails had been sent, however, did contain
relevant information. First and foremost, it discloses the existence of a personal relationship
between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its
first FOIA request, a motion filed by the Plaintiffs in Caperton
seeking Justice Maynard's
recusal from that case was pending, the basis of which was his personal relationship with Mr.
Blankenship. The fact that the e-mails were sent, albeit on issues unrelated to matters
pending before this Court, is clearly relevant to the relationship between Justice Maynard and
Mr. Blankenship. Because that relationship was the basis of a motion for recusal, the
relationship was itself related to Justice Maynard's conduct of the public's business. (See footnote 11)
Because of the context in which the e-mails in this case were sent, and in light
of the legislative intent expressed in West Virginia's FOIA statute, as well as extensive case
law from this Court indicating that our statute is to be given a liberal interpretation in favor
of the public's right to access to information, (See footnote 12)
I would hold that all thirteen of the e-mails
at issue were public records, because they contained information relating to the conduct of
the public's business. Put simply, when a judge or justice communicates, via a record that
is prepared, owned and retained by a public body, with a party litigant (or someone closely
connected therewith) while that party's case is pending before that judge, such
communication necessarily contains information that relates to that judge or justice's conduct
of the public business to the extent that it reveals the nature of the relationship between the
two. (See footnote 13)
Aside from mandatory disclosure under West Virginia's FOIA statute, (See footnote 14)
additionally believe that such communications should be subject to public disclosure to
ensure the legitimacy of the legal process. As the Commentary to Canon 1 of the Code of
Judicial Conduct states, [d]eference to the judgments and rulings of courts depends upon
public confidence in the integrity and independence of judges. To maintain the public
confidence necessary to sustain the legitimacy of the judiciary, judges must disclose, when
requested under FOIA, their communications with party litigants. Such disclosure may be
required despite the fact that the literal content of such communications may not directly
relate to the pending case or other conduct of public business, as in this case. Consequently,
given these significant public policy concerns, and in light of the statutory requirement that
West Virginia's FOIA be liberally construed, I would hold that the context
in which a
document is written can contain information relating to the conduct of the public's
business, and should be considered when determining if a writing is a public record.
In light of the majority's decision that consideration of whether a document
constitutes a public record is limited to the content found in the four corners of the document,
the Legislature should consider amending the statute to clarify that the context in which the
communication was made may also be considered. This legislative change is sorely needed
if our State is to continue developing a vivacious body of law regarding the right of the
public to full information.
For the reasons stated herein, I respectfully concur, in part, and dissent, in part.
A writing generated on a public computer, or otherwise prepared, owned and retained
by a public body, that provided information relating to the conduct of the public's business,
as apart from the conduct of the campaign, would be a public record.
One of the e-mails released by the circuit court contained a comment by Justice
Maynard that could be construed as relating to the merits of a case involving Mr.
Blankenship and a Massey subsidiary, which was at that time pending before a circuit court
in West Virginia. Because circuit court cases can ultimately be appealed to the Supreme
Court of Appeals, an e-mail commenting on the merits of such a case arguably contains
information relating to Justice Maynard's conduct of the public's business, based on content
In 2000, A.T. Massey Coal Company, Inc., was renamed Massey Energy Company.
At the time of the AP's FOIA request, Massey Energy Company was a party to
several other cases also pending in this Court, most of which involved worker's
The Court issued its second decision in Caperton
on April 3, 2008, again voting 3-2
in favor of Massey. After the Plaintiffs appealed that decision, the United States Supreme
Court reversed and remanded. The case was heard for a third time in September 2009, and
the Court issued its third decision on November 12, 2009, again ruling favor of Massey, but
this time by a vote of 4-1.
By September 2008, when the Circuit Court of Kanawha County, West Virginia,
finally ruled on the AP's FOIA request, Justice Maynard had lost his bid for re-election.
This is not the contention of the AP in the instant case. Indeed, in its reply brief, the
AP specifically disavowed Mr. Canterbury's assertion to that effect, re-affirming its position
that, to be disclosed, the records must relate to the conduct of the public's business.
It is important to distinguish between the public's interest and the public interest.
As used by the majority, the public's interest refers to the population's curiosity or
fascination with an issue or person, such as interest in some aspect of a public figure's
personal life. The public interest, on the other hand, refers to [s]omething in which the
public as a whole has a stake. Blacks Law Dictionary
1350 (9th ed. 2009). For example,
the public may be very interested in the fashion choices or personal habits of an elected
official, but such matters are not something in which the public as a whole has a stake, and
thus do not relate to the public interest.
In fact, with the one exception described in note 2, supra
, the e-mails are basically
Justice Maynard clearly has a right to personal associates, and nothing in this opinion
makes any judgment as to whether Justice Maynard in any way acted improperly with regard
to continuing to sit on the Massey case during the time of the e-mails. That is not the issue
before this Court.
The circuit court acknowledged that the importance of the fact that these e-mails
were sent between a sitting justice and a CEO of a party litigant, when it stated:
It is important to note that had Justice Maynard not recused
himself from the Caperton
case, and other cases involving
Massey, these e-mails would have been placed into the public's
business by Caperton's Motion to Recuse and the public release
of the photographs of Justice Maynard and Don Blankenship.
Because the information contained within the e-mail
communications would have shed light on the extent of Justice
Maynard's relationship with Don Blankenship and whether or
not that relationship may have affected or influenced Justice
Maynard's decision-making in Massey cases, the public would
have been entitled to that information.
I disagree with the circuit court, however, that the e-mails were not public records because
Justice Maynard had recused himself from Massey cases when the request was made. When
the e-mails were sent, Caperton
was pending, and Justice Maynard was participating in the
decision. It is the context in which the writing is made that should determine whether the
document contains information relating to the conduct of public business, not some
subsequent action by the author.
We have . . . made clear that, '[t]he disclosure provisions of
this State's Freedom of Information Act, W. Va. Code, 29B-1-1 et seq.
, as amended, are to be liberally construed, and the
exemptions to such Act are to be strictly construed. W. Va.
Code, 29B-1-1 .' Syllabus Point 4, Hechler v. Casey,
W. Va. 434, 333 S.E.2d 799 (1985). See also Daily Gazette Co.
Inc. v. W. Va. Development Office,
198 W. Va. 563, 574, 482
S.E.2d 180, 191 (1996) ('WVFOIA . . . was enacted to fully and
completely inform the public 'regarding the affairs of
government and the official acts of those who represent them as
public officials and employees.' W. Va. Code, 29B-1-1 ,
in part.'); AT & T Communications of West Virginia, Inc. v.
Public Serv. Comm'n of West Virginia,
188 W. Va. 250, 253,
423 S.E.2d 859, 862 (1992) ('The general policy of the [FOIA]
act is to allow as many public records as possible to be available
to the public.')(footnote omitted)).
In re Charleston Gazette FOIA Request
, 222 W. Va. 771, 778-79, 671 S.E.2d 776, 783-84
(2008) (footnote omitted).
Importantly, the mere existence of such communication in no way indicates that an
improper relationship existed between the judge and the recipient, nor does the existence of
such communication necessarily indicate that the judge's recusal was or was not appropriate.
Rather, it merely contains information that relates to the conduct of the public's business,
and, as such, is subject to disclosure under West Virginia's FOIA statute.
Under West Virginia's FOIA statute, once a writing is determined to be a public
record, it is subject to disclosure unless it falls under one of eight exemptions. W. Va. Code
§ 29B-1-4. Only one of these exemptions, for information of a personal nature, such as that
kept in a personal, medical or similar file, could be of relevance here. Id. at § 29B-1-4(2).
In the event that the public record includes documents of such personal nature, those
documents are still subject to public disclosure unless the public disclosure thereof would
constitute an unreasonable invasion of privacy[.] Id. However, even when a writing of a
personal nature could constitute an unreasonable invasion of privacy, it is still subject to
disclosure if the public interest by clear and convincing evidence requires disclosure in the
particular instance[.] Id. Importantly, the exemptions are to be strictly construed against
non-disclosure. In re Charleston Gazette FOIA Request, 222 W. Va. at 778, 671 S.E.2d at
783. For the reasons discussed throughout this opinion, I would find that the e-mails in this
case, while constituting information of a personal nature, would not be exempted from
disclosure, because the public interest by clear and convincing evidence requires disclosure
in this instance.