Jason E. Huber
Foreman & Huber Moler & Staton, L.C.
Charleston, West Virginia Jessica L. Toler
Attorney for the Appellant Mullens, West Virginia
Attorneys for the
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE STARCHER concurs in part; and dissents in part; and reserves the right to file a separate opinion.
2. Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syllabus pont 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. For a person to have brought a suit for the disclosure of public records under the West Virginia Freedom of Information Act (FOIA), as permitted by W. Va. Code § 29B-1-5 (1977) (Repl. Vol.1998), so as to entitle him/her to an award of attorney's fees for 'successfully' bringing such suit pursuant to W. Va. Code § 29B-1-7 (1992) (Repl. Vol. 1998), he/she need not have prevailed on every argument he/she advanced during the FOIA proceedings or have received the full and complete disclosure of every public record he/she wished to inspect or examine. An award of attorney's fees is proper even when some of the requested records are ordered to be disclosed while others are found to be exempt from disclosure or are released in redacted form. In the final analysis, a successful FOIA action, such as would warrant an award of attorney's fees as authorized by W. Va. Code § 29B-1-7, is one which has contributed to the defendant's disclosure, whether voluntary or by order of court, of the public records originally denied the plaintiff. Syllabus point 7, Daily Gazette Co. v. West Virginia Development Office, 206 W. Va. 51, 521 S.E.2d 453 (1999).
4. 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 . Syllabus point 4, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).
5. In response to a proper
Freedom of Information Act request, a public body has a duty to redact or
segregate exempt from non-exempt information contained within the public
record(s) responsive to the FOIA request and to disclose the nonexempt information
unless such segregation or redaction would impose upon the public body an
unreasonably high burden or expense. If the public body refuses to provide
redacted or segregated copies because the process of redacting or segregating
would impose an unreasonably high burden or expense, the public body must
provide the requesting party a written response that is sufficiently detailed
to justify refusal to honor the FOIA request on these grounds. Such written
response, however, need not be so detailed that the justification would compromise
the secret nature of the exempt information.
6. When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va. Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must produce a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va. Code, 29B-1-4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. The Vaughn index need not be so detailed that it compromises the privilege claimed. The public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt. Syllabus point 3 of Daily Gazette Co., Inc. v. West Virginia Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), is hereby expressly modified.
Jeff Farley (hereinafter Mr.
Farley) appeals a denial of attorneys fees in a Freedom of Information
Act (hereinafter FOIA) case he filed against the City of Mullens
and its Mayor, Harold Worley (hereinafter collectively referred to as the
City). Having read the briefs, reviewed the record, examined the authorities,
and heard argument, we reverse the circuit court's decision and remand this
case for an award of an appropriate amount of attorney's fees.
On August 12, 2002, Mr. Farley sent another letter to the City referencing his July 24 letter. The August 12 letter also specifically cited FOIA and referenced the opinion in Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), holding that it would not violate the privacy of taxpayers to permit a review of the roll of B & O taxpayers. It also cited our opinion in Daily Gazette Co. v. West Virginia Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), discussing the Vaughn index. (See footnote 1)
The City replied to the
August 12 letter on the same day. The City's response denied the July 22
request because B & O Tax information is confidential and is exempt
from disclosure pursuant to the Freedom of Information Act. The letter
also detailed that citizens have a legitimate expectation of privacy
of the information provided to the city government. The City's response
also stated that [o]ur attorney is aware of the cases you cited in
Mr. Farley then sued alleging the City violated FOIA because: 1) it did not disclose the requested documents; 2) it did not provide a redacted version of the documents; or, 3) it did not provide an index which specifically identified each document and the exemption which the City relied upon in denying disclosure. The City filed an answer and a motion to dismiss alleging that tax information is confidential and exempt from disclosure under FOIA. After some discovery, Mr. Farley filed a motion for summary judgment.
On December 17, 2002, the circuit court heard arguments on the motion to dismiss and the motion for summary judgment. (See footnote 2) After this hearing, but before the circuit court entered any order, Mr. Farley sought attorney's fees pursuant to FOIA's fee-shifting section, W. Va. Code § 29B-1-7. He requested $262.48 for costs and $6,060.00 in attorney's fees for 30.3 hours his counsel expended at $200.00 an hour.
On March 11, 2003, the circuit court, properly recognizing that it was reviewing the City's motion to dismiss by looking beyond the pleadings, construed the motion to dismiss as one for summary judgment. It granted the City summary judgment and denied Mr. Farley attorney's fees.
In its order, the circuit court found that, at the hearing, Mr. Farley for the first time offered a compromise and that the litigation likely may have been avoidable if he had been so amenable before suing. (See footnote 3) The circuit court then found that Mr. Farley was entitled to a list showing delinquent B & O tax amounts owed that did not include the names of taxpayers and without any identifying information. The court also directed the City, if Mr. Farley desired, to supply the Court with a roll of taxpayers which Mr. Farley could review in the court's chambers, but not including any tax return information, pursuant to Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992).
As to the garbage and sewer fees, the court found this information to be exempt under W. Va. Code §§ 29B-1-4(a)(5) (2003) (Supp. 2003) and 11-10-5d(a) (2002) (Repl. Vol. 2003). (See footnote 4) However, the court found that Mr. Farley was entitled the total amount of the delinquencies. The court directed the City to provide Mr. Farley a list of amounts owed for garbage and sewer delinquencies for each tax period, but not including account numbers and names, in response to Mr. Farley's narrowed FOIA request.
Having set out the substantive rulings, the circuit court then turned to attorney's fees. The court found that Mr. Farley has not substantially prevailed in this matter because he did not make a request that the Defendants could lawfully comply with until the hearing in this matter. The circuit court then found the City did honor Mr. Farley's narrowed request made at the summary judgment hearing. Because the City honored what the circuit court characterized as a legal request, the circuit court denied fees.
is the preferred method of resolving cases brought under FOIA. Evans
v. Office of Personnel Mgt., 276 F. Supp. 2d 34, 37 (D.D.C. 2003). In
FOIA cases, the same standard of appellate review applicable generally
to summary judgments is utilized. Petroleum Info. Corp. v. United
States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (R.B.
Ginsburg, J.). However, FOIA summary judgment is viewed through the evidentiary
burden placed upon the public body to justify the withholding of materials. See
id. (In performing that review, however, we are mindful that the
'burden is on the agency' to show that requested material falls within a
FOIA exemption. (citation omitted)); Valencia-Lucena v. United States
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (At the summary
judgment stage, . . . the agency has the burden to show that it acted in accordance with the statute[.]). See
also W. Va. Code § 29B-1-5(2) (1977) (Repl. Vol. 2003) ([T]he
burden is on the public body to sustain its action.); Williams
v. Precision Coil, Inc., 194 W. Va. 52, 62, 459 S.E.2d 329, 339 (1995)
([I]n making a ruling, 'the judge must view the evidence presented
through the prism of the substantive evidentiary
burden.' (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202, 215 (1986)).
Our standard of review for summary judgment orders is well-established. A circuit court's entry of summary judgment is reviewed de novo. Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). It is equally well-established that, as here, [w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Cf. W. Va. Code § 29B-1-5(2) (in reviewing a public body's actions in response to a FOIA request, [t]he court shall determine the matter de novo[.]). Having set forth the parameters of our review, we turn to the merits of the case.
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.
W. Va. Code § 29B-1-7. Both sides agree that our interpretation of this provision as contained in Syllabus point 7 of Daily Gazette Co. v. West Virginia Development Office, 206 W. Va. 51, 521 S.E.2d 453 (1999) (hereinafter Daily Gazette II), is controlling here. In Syllabus point 7 of Daily Gazette II, we held:
For a person to have brought a suit for the disclosure of public records under the West Virginia Freedom of Information Act (FOIA), as permitted by W. Va. Code § 29B-1-5 (1977) (Repl. Vol.1998), so as to entitle him/her to an award of attorney's fees for successfully bringing such suit pursuant to W. Va. Code § 29B-1-7 (1992) (Repl. Vol. 1998), he/she need not have prevailed on every argument he/she advanced during the FOIA proceedings or have received the full and complete disclosure of every public record he/she wished to inspect or examine. An award of attorney's fees is proper even when some of the requested records are ordered to be disclosed while others are found to be exempt from disclosure or are released in redacted form. In the final analysis, a successful FOIA action, such as would warrant an award of attorney's fees as authorized by W. Va. Code § 29B-1-7, is one which has contributed to the defendant's disclosure, whether voluntary or by order of court, of the public records originally denied the plaintiff.
It is at this point that the
parties diverge. Mr. Farley contends that he successfully brought suit pursuant
to W. Va. Code § 29B-1-5(1) (See
footnote 6) because the City originally denied him access to
any records, and, at the end of the litigation he had access to the records he
sought, albeit in a redacted form. The City, of course, disagrees. It argues that Mr. Farley's FOIA request
originally sought information protected from disclosure under FOIA so it
had no duty to disclose any documents. The City also says it had no sua
sponte duty to turn over any redacted records. Rather, the City argues
that it was not until the summary judgment hearing that Mr. Farley requested
redacted records. The City asserts that this was the only legal request
that Mr. Farley made and that it was only in response to this narrowed
request that the City was obligated to provide redacted records_not as
a result of the litigation. Finally, the City asserts it had no duty to
produce a Vaughn index as such an index is required only when the
public body relies upon FOIA's internal memorandum exception codified at
W. Va. Code § 29B-1-4(8) in refusing to provide the requested records.
We reject the City's arguments.
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.
W. Va. Code § 29B-1-1. 'Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.' John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462, 471 (1989) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119, 128 (1973)). Consistent with the Legislature's broad directives, we have held [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 . Syl. pt. 4, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). We believe the circuit court erred by giving Mr. Farley's initial FOIA request far too narrow a construction and implicitly holding that unless a FOIA requestor specifically asks for redacted information, that redacted information need not be provided.
Previously we have looked to federal FOIA cases for guidance in interpreting the West Virginia Freedom of Information Act. See Daily Gazette Co. v. West Virginia Develop. Office, 198 W. Va. 563, 571, 482 S.E.2d 180, 188 (1996) (hereinafter Daily Gazette I) (Recognizing the close relationship between the federal and West Virginia FOIA, we note, in particular, the value of federal precedents in construing our state FOIA's parallel provisions.). We do so again here. (See footnote 7)
The FOIA's declaration
of policy provides 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. W. Va. Code § 29B-1-1 (emphasis
added). Moreover, FOIA 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. W. Va. Code § 29B-1-2(4).
And, while observing that FOIA's policy is to allow as many public
records as possible to be available to the public[,] our recognition
as to the disclosure of documents originated from the broader recognition
that agencies have a responsibility to disclose as much information
to the public as [they] can. AT&T Comm'n v. Public Serv.
Comm'n, 188 W. Va. 250, 253, 423 S.E.2d 859, 862 (1992) (footnote omitted).
Indeed, FOIA itself recognizes that those invoking its provisions seek not
documents, but information. W. Va. Code § 29B-1-3(4) (All requests
for information must state with reasonable specificity the information sought.).
In short, [t]he focus of the FOIA is information, not documents[.] Mead Data Cent., Inc. v. Department
of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Accord Church
of Scientology Intern. v. United States Dep't of Justice, 30 F.3d 224,
232 (1st Cir. 1994); City of Virginia Beach v. United States
Dep't of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993); Willamette
Indus., Inc. v. United States, 689 F.2d 865, 867 (9th Cir.1982); Northern
Cal. Police Prac. Project v. Craig, 90 Cal. App. 3d 116, 123-24, 153
Cal. Rptr. 173, 178 (1979) (interpreting state Public Records Act consistently
with Federal FOIA and quoting Mead Data, 566 F.2d at 260). Consequently, [o]ne
should normally presume that a request for information under the FOIA is
a request for all or any, not for all or none, of the information described. Public
Citizen Health Research Group v. FDA, 185 F.3d 898, 907 (D.C. Cir.
Courts have held that a FOIA request seeking records containing both exempt and non-exempt information without the request specifying that redacted records will be acceptable must be treated as a request for the production of any non-exempt information contained in a public record otherwise reasonably falling within the request. In other words,
an entire document is not exempt merely because an isolated portion need not be disclosed. Thus the agency may not sweep a document under a general allegation of exemption, even if that general allegation is correct with regard to part of the information. Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973) (footnotes omitted). (See footnote 9) Indeed, recognizing that [i]t is quite possible that part of a document should be kept secret while part should be disclosed[,] id., the District of Columbia Circuit has thus long held 'that nonexempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.' Bullington v. United States Dep't of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000) (quoting Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999)). See also FBI v. Abramson, 456 U.S. 615, 626, 102 S. Ct. 2054, 2062, 72 L. Ed. 2d 376, 386 (1982) (FOIA requires agencies and courts to differentiate among the contents of a document rather than to treat it as an 'indivisible' record for FOIA purposes.). (See footnote 10) Thus, [e]ven if the requester does not raise the issue of segregability at the administrative level or before the court . . . . an agency must adequately demonstrate to the court that all reasonably segregable, non-exempt information . . . was disclosed. U.S. Dep't of Justice, Office of Inform. & Privacy, Freedom of Information Act Guide & Privacy Act Overview 70-71 (2002) (footnotes omitted). Accord 1 Burt A. Braverman & Frances J. Chetwynd, Information Law 159 (1985) (The agency response to the FOIA request letter should describe its compliance with the mandate to review withheld documents for segregable disclosable portions. (footnote omitted)).
This Court's opinions have followed this same reasoning. For example, in Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the town sought to prohibit the release of B & O tax information. While recognizing in Syllabus point 4 that under W. Va. Code § 11-10-5(d)(a) the legislative intent to keep confidential the contents of all tax returns, including B & O tax returns, is clear, we further recognized in Syllabus point 5 that
[i]t would not violate the confidentiality requirements
of W. Va. Code § 11- 10-5d(a) to permit a review of the role of B & O
taxpayers since every person or company involved in a business or occupation
is assumed to pay B & O taxes, and the list would contain only the names
of the taxpayers, not the actual contents of the tax returns.
Consequently, we accepted that FOIA provides for the segregability of information.
Similarly, in Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 453 S.E.2d 631 (1994), a newspaper made a FOIA request to review a redacted police report concerning two juveniles involved in a gunfight. We found that the newspaper was entitled to the redacted report, notwithstanding FOIA's law enforcement investigation exemption, (See footnote 11) FOIA's exemption for statutorily created disclosure exemptions, (See footnote 12) and the juvenile confidentiality statute, (See footnote 13) because the report sought would be redacted. We held in Syllabus point 2 that a blanket rule of non-disclosure was permissible if that was the only way to protect the identity of the juveniles involved. However, we went on to hold in Syllabus point 2 that:
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.
Ogden thus recognized that a public body did have a duty to take steps to provide non- exempt information contained in a public record if it could do so while protecting exempt information.
Finally, our most explicit recognition of the duty to redact came in Daily Gazette I. There we observed that, albeit in the specific context of the internal memorandum exception to FOIA, to the extent that segregable, factual data may be extracted, that information should be disclosed. 198 W. Va. at 573, 482 S.E.2d at 190.
However, we have previously observed that it is often the case in our vocation . . . to craft a working rule that reflects a delicate balance between two competing interests. State ex rel. Roark v. Casey, 169 W. Va. 280, 284, 286 S.E.2d 702, 705 (1982). Thus, we implied that the duty to redact or segregate is not necessarily absolute, stating in Town of Burnsville that if the steps needed to segregate non-exempt from exempt information were overly burdensome or costly, then such steps may not be required. 188 W. Va. at 515, 425 S.E.2d at 191 (We do not believe compiling a list of only taxpayer names will be overly burdensome or costly given the size of the Town of Burnsville.). (See footnote 14) We were not alone in adding this caveat.
For example, federal courts have
found such burdens where exempt and non- exempt information is so inextricably
intertwined that redaction or segregation of the exempt information would impose
significant costs in time or money or when the costs of redacting or segregating
are not justified because redaction or segregation would produce a FOIA response
with little informational value. See, e.g., Vaughn, 484 F.3d at 825 n.19
(It may be, of course, that the exempt and the non-exempt portions are
so inextricably intertwined that it is impossible to separate them.). Compare
Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir.
1998) (documents not reasonably segregable when segregation process would take
eight work years to identify all non-exempt information in agency investigatory
files); Doherty v. United States Dep't of Justice, 775 F.2d 49, 53 (2d
Cir. 1985) (The fact that there may be some nonexempt matter in documents
which are predominantly exempt does not require the district court to undertake
the burdensome task of analyzing approximately 300 pages of documents, line-by-line.) with
Wightman v. Bureau of Alchol, Tobacco, and Firearms, 755 F.2d 979, 983 (1st Cir.
1985) (finding blanket denial could be justified by unusual burdens such as the
voluminous nature of the contested record or the cost of doing a line by line
analysis that would, for other reasons, be high, but concluding under the facts
of the case that redacting 36 pages was not facially unreasonable).
Of course, a public body cannot simply state in a conclusory or cursory manner that redaction would be unreasonably burdensome or costly. In Daily Gazette Co. I, 198 W. Va. at 573, 482 S.E.2d at 190 (1996) (citations omitted), we explained that FOIA imposes upon the government agency 'the burden of showing the express applicability of [the claimed] exemption to the material requested.' Conclusory or general assertions on the part of the government agency do not satisfy this burden. We therefore agree that
agencies should not be forced to provide such a detailed
justification that would itself compromise the secret nature of potentially exempt
information. Nevertheless, unless the segregability provision of the FOIA is
to be nothing more than a precatory precept, agencies must be required to provide
the reasons behind their conclusions in order that they may be challenged by
FOIA plaintiffs and reviewed by the courts.
Mead Data Cent., Inc. v. United States, 566 F.2d 242, 261 (D.C. Cir. 1977).
Other states, through judicial, legislative, or administrative avenues, have followed this approach. For example, the Louisiana Court of Appeals held in Association of Rights for Citizens, Inc. v. Parish of St. Bernard, 557 So. 2d 714, 717 (La. Ct. App. 1990):
In the instant case, the custodian merely testified that
it would not be possible to delete the private information from the original
applications, leaving access to the non-confidential telephone numbers. The custodian
has a legal duty to segregate the public from the nonpublic information or to
make a written statement, showing that this would be unreasonably burdensome
or expensive. [The custodian] has not fulfilled her duty to make the non-confidential
telephone numbers available.
See also Cal. Gov't Code § 6255 (West Cum. Pocket Part 2004) ((a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (b) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.); ACLU v. Deukmejian, 32 Cal. 3d 440, 444, 186 Cal. Rptr. 235, 237, 651 P.2d 822, 823-24 (Cal. 1982) (section 6255 allows agency to avoid providing redacted or segregated material if unduly burdensome); Butler v. Cohen, 163 Wis. 2d 819, 825-26, 472 N.W.2d 579, 581-82 (Ct. App. 1991) (The denial to a written request must be in writing and must be accompanied by a statement of the specific public policy reasons for the refusal. . . . Although the custodian is not required to provide a detailed analysis of the record and why public policy directs that it must be withheld, mere legal conclusions that a record is 'confidential' or that its release would be 'contrary to the public interest' insufficiently justify refusal because such reasons lack specificity.); 37A Am. Jur. 2d Freedom of Information Acts § 440, at p. 416 (1994) ([I]n certain states, if segregating the nonexempt portions would be unreasonably burdensome or expensive, then the custodian must state so in writing. (footnote omitted)); 76 C.J.S. Records § 124, at p. 235 (1996) (If. . . segregation would be unreasonably burdensome or expensive, the agency should provide the party requesting the documents with a statement showing this. (footnote omitted)). In sum, [i]f the agency can show with reasonable specificity why material could not be segregated, it meets its burden under FOIA. Billington v. United States Dep't of Justice, 301 F. Supp. 2d 15, 23 (D.D.C. 2004).
We must observe here that the process we have articulated is not based upon any specific FOIA exemption, but upon the reasonableness of segregation or redaction, (See footnote 15) in light of the balance between the public's rights and public bodies' obligations under FOIA and the limited resources public bodies have to not only respond to FOIA requests, but to provide other critical government services. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 157, 110 S. Ct. 471, 478, 107 L. Ed. 2d 462, 474 (1989) (This Court consistently has taken a practical approach when it has been confronted with an issue of interpretation of the Act.); Solar Sources, Inc., 142 F.3d at 1039 (Imposing this burden upon the Government [of eight work years to identify all non-exempt information], as well as the reviewing courts, would conflict with the 'practical approach' that courts have taken in interpreting the Act.). Cf. W. Va. Code § 29B-1-3(3) (records custodian may make reasonable rules and regulations to, inter alia, prevent interference with the regular discharge of his or her duties.)
Consequently, we hold that, in response to a proper Freedom of Information Act request, a public body has a duty to redact or segregate exempt from non-exempt information contained within the public record(s) responsive to the FOIA request and to disclose the nonexempt information unless such segregation or redaction would impose upon the public body an unreasonably high burden or expense. If the public body refuses to provide redacted or segregated copies because the process of redacting or segregating would impose an unreasonably high burden or expense, the public body must provide the requesting party a written response that is sufficiently detailed to justify refusal to honor the FOIA request on these grounds. Such written response, however, need not be so detailed that the justification would compromise the secret nature of the exempt information.
In crafting our holding today, we endorse the views expressed by the D.C. Circuit in Mead Data, 566 F.2d at 261 (footnote added):
[A]n agency should . . . describe what proportion of
the information in a document is non-exempt and how that material is dispersed
throughout the document. Armed with such a description, both litigants and judges
will be better positioned to test the validity of the agency's claim that the
non-exempt material is not segregable. For example, if only ten percent of the
material is non-exempt and it is interspersed line-by-line throughout the document,
an agency claim that it is not reasonably segregable because the cost of line-by-
line analysis would be high and the result would be an essentially meaningless
set of words and phrases might be accepted. On the other extreme, if a large
proportion of the information in a document is non-exempt, and it is distributed
in logically related groupings, the courts should require a high standard of
proof for an agency claim that the burden of separation justifies nondisclosure
or that disclosure of the non-exempt material would indirectly reveal the exempt
information. Of course it is the cases in between these extremes which, no doubt,
will more frequently present themselves to the courts and provide the true test
for the procedures we have suggested. We therefore urge that they not be viewed
as a thaumaturgic formula, but as a potentially useful approach, to be tried
and improved by experience, as the courts struggle to strike a balance between the unavoidably conflicting
values implicated by the segregability requirement of the FOIA. (See
In this case, the City did not provide any redacted or segregated records responsive to Mr. Farley's original FOIA request prior to his lawsuit. Further, the City did not assert the process of redacting the records would be unreasonably burdensome or expensive. Indeed, the circuit court's summary judgment order specifically found that the City had installed a new computer system in 2002. Mullens City Manager Kathy Lusk testified that the City could redact the names of taxpayers carried on the City's computerized list of B & O taxpayers. Ms. Lusk also testified that it would be easy to redact the name of the taxpayer from the list of garbage taxpayers. Finally, Ms. Lusk testified that the name of the taxpayer could be redacted from the computerized database containing the names of sewage taxpayers. Therefore, we conclude that the City was required to provide Mr. Farley this redacted material in response to his original FOIA request, even though Mr. Farley did not initially seek redacted material. It is evident, therefore, that the City's argument in this regard is legally erroneous.
It appears that Mr. Farley believes that a public body must prepare and present a Vaughn index to a FOIA requestor whenever the public body denies a FOIA request. This is incorrect. While Mr. Farley cites Daily Gazette I in support of this argument, we do not think that Daily Gazette I supports this position. In Daily Gazette I, the burden of producing a Vaughn index did not arise at the administrative stage, but was directed by the circuit court as part of the litigation under section 5 of FOIA. 198 W. Va. at 566, 482 S.E.2d at 183. Further, the view that a Vaughn index is not required at the administrative stage of FOIA proceedings is amply supported by substantial precedent.
the D.C. Circuit stated in dicta (See
footnote 17) in Mead
Data that a Vaughn index is as applicable at the administrative
level as in litigation, Mead Data, 566 F.2d at 251, the D.C. Circuit
went on to conclude there is no error if the index is provided during litigation. Id.Hence, [w]ith
regard to the timing of a Vaughn Index, it is well-settled that
a requester is not entitled to receive one during the administrative process. Freedom
of Information Act Guide, supra, at p.681 (footnote omitted). In other
words, the Vaughn index is implicated by FOIA litigation_not simply
by a FOIA denial. See Natural Resources Def. Council v. Nuclear Reg.
Comm'n, 216 F.3d 1180, 1190 (D.C. Cir. 2000) (Vaughn index is
a rule that governs litigation in court and not proceedings before the
agency.). See also Ruotolo v. Department of Justice,
53 F.3d 4, 6 (2d Cir. 1995) (A Vaughn index is provided in
the course of FOIA litigation [.]); Dickerson v. Department of
Justice, 992 F.2d 1426, 1429 n.2 (6th Cir. 1993) (A
'Vaughn index'. . . is . . . specially prepared for litigation purposes.); Rugerio v.
United States Dep't of Justice, 234 F. Supp. 2d 697, 700 n.1 (E.D.
Mich. 2002) (A 'Vaughn index' is a routine FOIA-litigation
[t]here is no requirement that an agency provide a search certificate or a Vaughn index on an initial request for documents. The requirement for detailed declarations and Vaughn indices is imposed in connection with a motion for summary judgment filed by a defendant in a civil action pending in court.
Schwarz v. United States Dep't of the Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000) (footnote and citation omitted). Accord Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) (Agencies need not provide a Vaughn Index until ordered by a court after the plaintiff has exhausted the administrative process.), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996). (See footnote 18)
However, we also find that the City misapprehends the Vaughn index requirement. The City cites Daily Gazette I and argues that a Vaughn index is required only when the public agency withholds documents based upon the internal memorandum exception of FOIA codified at W. Va. Code § 29B-1-4(a)(8). (See footnote 19) We believe, however, that the City has read [Daily Gazette I] too narrowly and has missed the point actually decided in that case. Jordan v. National Grange Mut. Ins. Co., 183 W. Va. 9, 11, 393 S.E.2d 647, 649 (1990).
While Syllabus point 3 of Daily Gazette I only spoke in terms of the internal memorandum exemption , we have repeatedly pointed out that '[t]he statement contained in a syllabus is to be read in the light of the opinion.' Jones v. Jones, 133 W. Va. 306, 310, 58 S.E.2d 857, 859 (1949), citing Koblegard, Trustee v. Hale, 60 W. Va. 37, 41, 53 S.E. 793 [, 794] . Cupano v. West Virginia Ins. Guar. Ass'n, 207 W. Va. 703, 708, 532 S.E.2d 127, 132 (2000). See also syl. pt. 5, State v. Franklin, 139 W. Va. 44, 79 S.E.2d 692 (1954) (Point 2, Syllabus, State v. Collins, 108 W. Va. 98, read in light of the opinion and the facts therein and explained.) Thus, we discussed the Vaughn index in Daily Gazette I in the context of the internal memorandum exemption simply because that was the exemption at issue in that case. 198 W. Va. at 570, 482 S.E.2d at 187. Nothing in the body of Daily Gazette I indicated that a Vaughn index is required only when FOIA's internal memorandum exemption is invoked. Indeed, we explained in Daily Gazette I, that a Vaughn index must set forth, inter alia, 'the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.' 198 W. Va. at 566 n.2, 482 S.E.2d at 183 n.2 (emphasis added) (citation omitted). Because it appears Daily Gazette I is being taken out of context, we modify Syllabus point 3 of Daily Gazette I as follows:
When a public
body asserts that certain documents or portions of documents in its possession
are exempt from disclosure under any of the exemptions contained in W. Va.
Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must produce
a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d
873 (1974). The Vaughn index must provide a relatively detailed justification
as to why each document is exempt, specifically identifying the reason(s) why
an exemption under W. Va. Code, 29B-1-4 is relevant and correlating the claimed
exemption with the particular part of the withheld document
to which the claimed exemption applies. The Vaughn index need not be
so detailed that it compromises the privilege claimed. The public body must
also submit an affidavit, indicating why disclosure of the documents would
be harmful and why such documents should be exempt. A Vaughn index is
a litigation tool and is not required to be prepared or produced at the FOIA
administrative level. Syllabus point 3 of Daily Gazette Co., Inc. v. West
Virginia Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), is hereby expressly modified.
In conclusion, we find that the City did not disclose any of the information Mr. Farley sought, either in total or in redacted form, in response to his FOIA request, even after acknowledging its counsel's familiarity with Town of Burnsville v. Cline. As is evident from our above discussion, we reject the City's contention that it was not obligated to provide redacted copies of the responsive records until Mr. Farley narrowed his FOIA request at the summary judgment hearing. Consequently, it was not until the circuit court directed the City to provide redacted records that the City provided Mr. Farley information responsive to his FOIA request. This being the case, we find that Mr. Farley was a successful FOIA litigant. Consequently, he was entitled to an award of reasonable attorneys fees and costs. Thus, we remand to allow the circuit court to determine an appropriate award of attorney's fees under W. Va. Code § 29B-1-7 and Daily Gazette II, 206 W. Va. at 64-65, 521 S.E.2d at 556-57.
If on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]