2. Under the West Virginia Freedom of Information Act (FOIA), W.Va. Code, 29B-1-1, et seq., a public record includes any writing in the possession of a public body that relates to the conduct of the public's business which is not specifically exempt from disclosure by W.Va. Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.
3. Under the West Virginia Freedom of Information Act, W.Va. Code,
29B-1-1, et seq., a referendum petition filed with a public body is a public record required
to be disclosed under the Act.
The Shepherdstown Observer (hereafter the Observer) appeals an order of the Circuit Court of Jefferson County dismissing its civil complaint against Jennifer Maghan, in her capacity as the Clerk of the County Commission of Jefferson County (County Clerk or Clerk). For the reasons set forth herein, we reverse the Circuit Court of Jefferson County and remand this matter for further proceedings consistent with this opinion.
After the petition had been filed, the Observer submitted a Freedom of Information Act (FOIA or Act) request to the County Clerk. In its request, the Observer sought copies of all certification documents for the then-proposed zoning referendum, including the petition (See footnote 4) and the signatures thereon. An Assistant Prosecuting Attorney for Jefferson County replied to the Observer's FOIA request, informing the Observer that the referendum petition containing the voter signatures was not a public record and, therefore, not subject to release under the Freedom of Information Act. The Assistant Prosecutor further explained that under the Act:
A public record is defined as 'any writing containing information in relation to the conduct of the public's business, prepared, owned and retained by a public body.' Obviously, the petition was not prepared by the County Commission, nor was it prepared on behalf of the County Commission[.] (Emphasis in original).
Following the Clerk's refusal to provide the petition, the Observer filed a civil action against the Clerk in the Circuit Court of Jefferson County seeking to compel disclosure of the referendum petition. The Clerk moved to dismiss the complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, arguing that the petition was not a public record subject to disclosure under the West Virginia Freedom of Information Act. While the Observer's civil action was being litigated, a referendum vote was held on
the zoning ordinance, and a majority of the county's citizens voted to reject the new ordinance.
Following briefing and argument, the circuit court granted the Clerk's motion to dismiss the complaint, finding that the referendum petition was not a public record within the meaning of the Freedom of Information Act. The circuit court concluded that the Act only requires disclosure of writings prepared, owned and retained by a public body, W.Va. Code, 29B-1-2(4), and because the petition (and signatures thereon) sought by the Observer was not prepared by the Clerk's office, it was not a public record within the meaning of the Act. The circuit court further concluded, citing our decision in State ex rel. Daily Gazette Company v. Bailey, 152 W.Va. 521, 164 S.E.2d 414 (1968), that: (1) the individuals signing the petition were entitled to secrecy; (2) disclosing the names of signatories on the petition could have a chilling effect on the ability of citizens to petition the government; and (3) there was no valid purpose in making the signatures public.
The Observer now appeals the circuit court's order. The Observer argues that the circuit court's conclusion that a public record must not only relate to the public's business, but also must have been a record that was created by the public body in the first instance, is an overly restrictive interpretation of what constitutes a public record subject to disclosure under our Freedom of Information Act. The Observer further argues that the circuit court erred in concluding that a petition to force a referendum on a county zoning ordinance is analogous to a secret ballot and, therefore, constitutionally protected from public disclosure.
In response, the Clerk argues that the definition of what constitutes a public record for purposes of a FOIA request is clear and unambiguous and that the circuit court was correct in finding that FOIA applies only to writings prepared, owned and retained by a public body. The Clerk further argues that the circuit court was correct in finding that disclosing the identities of the signatories on the petition would have a chilling effect on the ability of citizens to petition the government.
II. Standard of Review
Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac- Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
Public record includes any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body.
A statute should be so read and applied as to make it accord with the spirit, purposes, and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law applicable to the subject matter, whether constitutional, statutory, or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the 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.
The 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 .
Includes and including, when used in a definition contained in this article, does not exclude other things otherwise within the meaning of the term being defined.
We are also guided by the Legislature's choice of wording used for the other
terms it has defined in the Freedom of Information Act. Presently, there are five defined
terms in the Act, all contained in W.Va. Code, 29B-1-2 . (See footnote 6) In reviewing these
definitions, we note that for two of the definitions the Legislature used the more definite, restrictive word means to define a custodian in subsection (1) and a public body in subsection (3). (See footnote 7) In stark contrast, the Legislature used the less definite, less restrictive word includes to define a person in subsection (2), a public record in subsection (4) and a writing in subsection (5).
To adopt the position of the Clerk, the Legislature's definition of public record would need to read: 'Public record' means any writing . . .. The Clerk's suggested definition of a public record would severely limit the scope of the Act and the right of every person to inspect or copy any public record of a public body in this state. W.Va. Code, 29B-1-3(1) . It is obvious that the Legislature did not intend such a restrictive interpretation, and meant for the word includes to be given its common, ordinary and accepted meaning, which is that of a word of enlargement. Davis Memorial Hospital, 222 W.Va. at 684, 671 S.E.2d at 689 ([t]he term 'includ[es]' in a statute is to be dealt with as a word of enlargement).
Accordingly, we hold that under the West Virginia Freedom of Information Act (FOIA), W.Va. Code, 29B-1-1, et seq., a public record includes any writing in the possession of a public body that relates to the conduct of the public's business which is not specifically exempt from disclosure by W.Va. Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.
Having resolved the issue relevant to the word includes, we next address whether the referendum petition sought by the Observer is subject to disclosure under the Freedom of Information Act. In Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009), we discussed in detail when a writing in the possession of a public body is required to be disclosed under the Act. In that appeal we were asked to determine whether e-mails by public officials are writings as defined by the Act and whether, if so, the e-mails at issue were a public record under the Act. While we found in Syllabus Point 2 of Associated Press that e-mails, as a classification, are a writing under the Act, we concluded that the specific e-mails at issue in Canterbury were not a public record because the e-mails were of a personal nature and did not relate to the conduct of the public's business.
Our decision in Associated Press sets forth a useful model of the analysis that should be applied by public bodies responding to a FOIA request. This model, succinctly stated, is as follows: A writing in the possession of a public body is a public record required to be disclosed under the Act where the writing relates to the conduct of the public's business and is not specifically exempted from disclosure pursuant to W.Va. Code, 29B-1-4. Conversely, a writing in the possession of a public body is not a public record and need not be disclosed under the Act where the writing does not relate to the conduct of the public's business or where the writing is specifically exempt from disclosure pursuant to W.Va. Code, 29B-1-4.
In the case before us, the Jefferson County Commission voted to replace a
non-traditional zoning ordinance with a traditional zoning ordinance. Pursuant to W.Va.
Code, 8A-7-13(j), voters within Jefferson County were entitled to organize a petition
drive to force a ballot referendum to approve or disapprove the ordinance passed by the
County Commission. In order to force the referendum, two things were required to occur.
First, 10% of the eligible voters residing in the area affected by the ordinance had to sign
a petition demanding a referendum. Second, the petition had to be filed with the County Clerk within ninety days of the new ordinance being passed by the County Commission. (See footnote 8) Based on the record before us, both of these conditions were met.
It is clear to this Court that referendum petitions, such as the one before us, are a writing as that term is defined by W.Va. Code, 29B-1-2(5). (See footnote 9) It is also clear that such petitions, when filed with a public body, are writings in the possession of a public body. It is equally clear that where such petitions call upon or require the public body to perform an official act, the petitions relate to the conduct of the public business. In the present case, the referendum petition was required to be filed with a public body (here the County Clerk) and, once filed, the petition required the County Commission and County Clerk to perform various official acts. There is no question that the petitions are public records required to be disclosed under our Freedom of Information Act.
Accordingly, we find that under the West Virginia Freedom of Information
Act, W.Va. Code, 29B-1-1, et seq., a referendum petition filed with a public body is a public
record required to be disclosed under the Act. The Legislature has mandated 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) . We find no exception which would exempt the petition at issue from
disclosure under the Act.
The legislature has declared that candidates may be nominated for political office in a manner other than by conventions or primary elections. This declaration has been made in the following words: (a) Groups of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections[.]
[a] qualified voter who signs a certificate . . . effectively casts his vote for the nomination of the candidate named therein and his vote, except where necessarily revealed, is entitled to the same secrecy as one cast in a primary election.
The circuit court's conclusion that a referendum petition should be treated, under Bailey, as a ballot cast and therefore entitled to the same secrecy as one cast in [an] election, is misplaced. In Bailey, we expressly recognized the distinction between a petition like the one before us and the nominating certificates at issue in Bailey.
These signers were not making a supplication or request to a superior or to a group in authority, as in the connotation of a petition. They were affirmatively making a nomination, which, if done in accordance with the appropriate statute, would succeed in placing their candidate on the ballot in the general election.
Bailey, 152 W.Va. at 526, 164 S.E.2d at 417.
As opposed to dealing with secret ballots and nominating certificates, the issue before us is whether disclosure of the petition, and the signatures thereon that requested a ballot referendum, under our Freedom of Information Act would violate the First Amendment to the United States Constitution or Article III, §§ 7 (See footnote 13) and 16 (See footnote 14) of the Constitution of West Virginia.
In John Doe No. 1 v. Reed, 561 U.S. ___ (2010), 130 S.Ct. 2811, (See footnote 15) the United States Supreme Court addressed this very issue. In Reed, the Supreme Court was asked to determine whether the First Amendment rights of signatories to a referendum petition would be violated if a referendum petition, and the signatures contained thereon, were disclosed to the public under Washington State's Public Records Act.
In Reed, the state legislature enacted a new law that generated some public opposition. (See footnote 16) Those opposed to the new law organized a petition drive to force a ballot referendum, where it was hoped the new law would be nullified by the voters. In order to force a ballot referendum, state law required that a petition containing the requisite number of valid signatures be filed in the Washington State Secretary of State's office. Once filed, the Secretary of State would canvas the signatures to assure that each met the elements required in order to be deemed valid (voter's signature, address and county of voter registration) and if the required percentage was met, the law would be placed on the ballot as a voter referendum. The process for bringing about a ballot referendum in the state of Washington is virtually identical to that required to force a ballot referendum on a zoning ordinance under W.Va. Code, 8A-7-13 . (See footnote 17)
The issue in Reed developed when, after the petition seeking a ballot referendum on the new law had been filed, the Washington Secretary of State received several requests for copies of the referendum petition pursuant to Washington's Public Records Act. (See footnote 18) Those requesting the copies of the petition had publicly stated that they intended to publish the names online, in a searchable format. Before the Secretary of State acted on the request, the referendum petition organizer and some of the people who had signed the petition filed a complaint seeking injunctive relief to bar release of the petition on the grounds that, inter alia, the Public Records Act was unconstitutional as it applied to referendum petitions. A preliminary injunction was granted, but that injunction was subsequently reversed by the United States Court of Appeals for the Ninth Circuit and the Supreme Court granted certiorari.
On certiorari, the Supreme Court found that the compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment because [e]ven if the signer is agnostic as to the merits of the underlying law, his signature still expresses the political view that the question should be considered 'by the whole electorate.' Reed, 561 U.S. at____, 130 S.Ct. at 2817. (Citations omitted). However, the Court went on to determine that disclosure under the [Public Records Act] would not violate the First Amendment with respect to referendum petitions in general. Id., 561 U.S. at ___, 130 S.Ct. at 2821. In reaching this conclusion, the Court concluded that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process. Id., 561 U.S. at ___, 130 S.Ct. at 2820. This interest, the Court noted, was particularly strong with respect to efforts to root out fraud, although not limited to that interest alone.
[T]he State's interest in preserving electoral integrity is not limited to combating fraud. That interest extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. That interest also extends more generally to promoting transparency and accountability in the electoral process[.]
Id., 561 U.S. at ___, 130 S.Ct. at 2819. (Citations omitted). (See footnote 19)
Having fully considered the Supreme Court's decision in John Doe No. 1 v. Reed, we see nothing in our state law or state Constitution that would bar disclosure of the referendum petition at issue pursuant to a FOIA request.
For these reasons, we reverse the circuit court's Order of Dismissal dated August 21, 2009, and remand this matter with directions that an order be entered requiring the Clerk of the County Commission to provide the Observer the public records sought in its FOIA request.
Non-traditional zoning ordinance means an ordinance that sets forth development standards and approval processes for land uses within the jurisdiction, but does not necessarily divide the jurisdiction into distinct zoning classifications or districts requiring strict separation of different uses, and does not require a zoning map amendment.