Thomas E. Buck, Esq.
Jason P. Pockl, Esq.
Bailey & Wyant
Wheeling, West Virginia
Attorneys for Petitioners
Darrell V. McGraw, Jr., Esq.
Jamie S. Alley, Esq.
Senior Assistant Attorney General
Civil Rights Division
Charleston, West Virginia
Attorneys for Respondents
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
1. The general procedure involved with discovery of allegedly privileged documents is as follows: (1) the party seeking the documents must do so in accordance with the reasonable particularity requirement of Rule 34(b) of the West Virginia Rules of Civil Procedure; (2) if the responding party asserts a privilege to any of the specific documents requested, the responding party shall file a privilege log that identifies the document for which a privilege is claimed by name, date, custodian, source and the basis for the claim of privilege; (3) the privilege log should be provided to the requesting party and the trial court; and (4) if the party seeking documents for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery. Syllabus Point 2, State ex rel. Nationwide Mut. v. Kaufman, 222 W. Va. 37, 658 S.E.2d 728 (2008).
2. When a party to a case brought under the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1 to 5-11-21, asserts that a communication sought to be discovered is privileged, the administrative law judge should conduct an in camera inspection of the requested materials to determine whether the communication is privileged.
3. A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect. Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
4. The provision of the Open Governmental Proceedings Act, W. Va. Code §§ 6-9A-1 to 6-9A-12, that recognizes a specific and limited right of governing bodies to meet in an executive session which is closed to the public is not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which are not otherwise privileged.
5. The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them. Syllabus Point 7, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
The petitioners and defendants below, the Marshall County Commission and Marshall County Communication 911, seek extraordinary relief to prevent the enforcement of an order entered by Respondent Chief Administrative Law Judge Phyllis H. Carter in a claim brought by Respondent John R. Briggs under the State Human Rights Act. The order complained of by the petitioners directs them to produce for in camera inspection by the administrative law judge an audio recording of an executive session meeting in which the petitioners discussed hiring an applicant to fill one of two vacancies in the Marshall County Communication 911 Department. The petitioners argue before this Court that the audio recording in question is protected from disclosure for the purpose of an in camera inspection by an executive session privilege, the attorney-client privilege, and the work product doctrine. For the reasons that follow, we deny the writ requested.
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With these principles to guide us, we proceed to address the issues raised by the petitioners.
disclosure of allegedly privileged materials to the district court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege. Indeed, this Court has approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection, see Kerr v. United States District Court for Northern District of Cal., 426 U.S. 394, 404-405 (1976), and the practice is well established in the federal courts. See, e.g., In re Antitrust Grand Jury, 805 F.2d 155, 168 (CA6 1986); In re Vargas, 723 F.2d 1461, 1467 (CA10 1983); United States v. Lawless, 709 F.2d 485, 486, 488 (CA7 1983); In re Grand Jury Witness, 695 F.2d 359, 362 (CA9 1982).
United States v. Zolin, 491 U.S. 554, 568-569 (1989).
Likewise, this Court has recognized that it is appropriate for a circuit court to examine allegedly privileged materials in camera to determine whether the materials are privileged. In State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992), we instructed the circuit court to examine the allegedly privileged records of a medical review organization in an in camera hearing which, this Court indicated, is contemplated in Rule 26(c) of the West Virginia Rules of Civil Procedure. (See footnote 5) Also, the foremost authority on the West Virginia Rules of Civil Procedure provides that [w]hen a party asserts that a communication is privileged the trial court should examine the requested materials in an in camera hearing. Cleckley, Davis & Palmer, Litigation Handbook, § 26(b)(1), 697 (2d ed. 2006) (citing State ex rel. Shroades v. Henry, supra.). Further, in State ex rel. Westfield Insurance Co. v. Madden, 216 W. Va. 16, 602 S.E.2d 459 (2004), this Court outlined in the context of a bad faith action against an insurer the general procedure for discovery of material alleged to be privileged. Although Westfield was confined to the context of a bad faith insurance action, we indicated elsewhere that this discovery procedure [outlined in Westfield] should have a general application to discovery of privileged communication in any context. State ex rel. Nationwide Mut. v. Kaufman, 222 W. Va. 37, 43, 658 S.E.2d 728, 734 (2008). Accordingly, we held in Syllabus Point 2 of Kaufman that
The general procedure involved with discovery of
allegedly privileged documents is as follows: (1) the party
seeking the documents must do so in accordance with the
reasonable particularity requirement of Rule 34(b) (See footnote 6) of the West
Virginia Rules of Civil Procedure; (2) if the responding party
asserts a privilege to any of the specific documents requested,
the responding party shall file a privilege log that identifies the
document for which a privilege is claimed by name, date,
custodian, source and the basis for the claim of privilege; (3) the
privilege log should be provided to the requesting party and the
trial court; and (4) if the party seeking documents for which a
privilege is claimed files a motion to compel, or the responding
party files a motion for a protective order, the trial court must
hold an in camera proceeding and make an independent
determination of the status of each communication the
responding party seeks to shield from discovery. (Footnote
Finally, in the case of Feathers .v West Virginia Bd. of Medicine, 211 W. Va. 96, 562 S.E.2d 488 (2001), this Court discussed the proper procedure to be followed when a doctor asserts the privacy protections afforded to certain information in a doctor's files. This Court explained:
As in other instances where a party asserts a privilege, a log of
the privileged material should be provided to the Board of
Medicine, and the materials provided to a court for in camera inspection. See, e.g., State ex rel. Shroades v. Henry, 187 W.
Va. 723, 421 S.E.2d 264 (1992) (hospital sought to protect hospital peer review documents as statutorily privileged); State ex rel. U.S.F. & G. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995) (insurance company sought to protect documents as attorney-client privileged). Only that material which is privileged is protected from examination.
211 W. Va. at 105, 562 S.E.2d at 497 (footnote omitted). We believe it is clear from the foregoing authorities that a judicial officer may inspect allegedly privileged materials in camera and that such an inspection does not violate the sanctity of the attorney-client privilege or the work product doctrine.
The petitioners assert, however, that even if circuit court judges are permitted to examine allegedly privileged materials in camera, an ALJ should not be accorded the same power because an ALJ is a trier of fact. The implication is that an ALJ may be improperly influenced in their fact finding by knowledge of privileged material that is inadmissible at a hearing. We disagree. Administrative law judges who adjudicate Human Rights Act cases are licensed attorneys who are authorized by statute to hold and conduct hearings, to direct the scope of discovery including the consideration of motions to compel and motions for protective orders, to determine all questions of law and fact, and to render a final decision on the merits of the complaint. W. Va. Code § 5-11-8(d)(3) (1998). As with circuit court judges who conduct bench trials, ALJs are regularly required to rule on evidentiary matters which requires them to consider evidence which is ultimately determined to be inadmissible. In such circumstances, we properly expect the circuit court judge or the ALJ to disregard inadmissible evidence and to render a decision based on the evidence introduced at the trial or administrative proceeding.
Therefore, for the reasons set forth above, we hold that when a party to a case brought under the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1 to 5-11-21, asserts that a communication sought to be discovered is privileged, the administrative law judge should conduct an in camera inspection of the requested materials to determine whether the communication is privileged.
As noted above, Rule of Evidence 501 limits privileges to those provided for
by the Constitution, statute, or common law. An executive session privilege is not provided
for in our State Constitution or common law. Therefore, we must determine whether the
Legislature intended to create an executive session privilege in the Open Governmental
Proceedings Act. Our review of the language of the Act indicates to this Court that the
Legislature did not so intend. In determining legislative intent, we consider the precise
words used by the Legislature. A statutory provision which is clear and unambiguous and
plainly expresses the legislative intent will not be interpreted by the courts but will be given
full force and effect. Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951). A plain reading of the Open Governmental Proceedings Act establishes that the Act
is completely silent on the issue of whether civil litigants may obtain access through
discovery to information related to executive session proceedings.
The Legislature plainly expressed its intent in enacting an executive session exception to the open proceedings provision in its declaration of policy contained in W. Va. Code § 6-9A-1. This code section provides in pertinent part:
The Legislature finds, however, that openness, public access to
information and a desire to improve the operation of government
do not require nor permit every meeting to be a public meeting.
The Legislature finds that it would be unrealistic, if not
impossible, to carry on the business of government should every
meeting, every contact and every discussion seeking advice and
counsel in order to acquire the necessary information, data or
intelligence needed by a governing body were required to be a
public meeting. It is the intent of the Legislature to balance
these interests in order to allow government to function and the
public to participate in a meaningful manner in public agency
It is clear from this declaration of policy that the Legislature's intent was to balance the benefits of public participation in government meetings with the occasional need for government bodies to obtain necessary information and counsel outside of the public's view.
In other words, the Act and its executive session exception are concerned with the public's access to government meetings, not what may or may not be obtained by means of civil discovery. Mr. Briggs is not simply a member of the public but a party to a discrimination claim with a critical interest in whether the executive session included discussions indicating unlawful motives that would support his claim. (See footnote 8) Therefore, the executive session exception has no applicability to Mr. Briggs' efforts to discover the recording of the executive session.
This Court also is mindful when considering the recognition of evidentiary privileges that
For more than three centuries it has now been recognized as a
fundamental maxim that the public . . . has a right to every
man's evidence. When we come to examine various claims of exemption, we start with the primary assumption that there is a
general duty to give what testimony one is capable of giving,
and that any exemptions which may exist are distinctly
exceptional, being so many derogations from a positive general
United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting Wigmore, Evidence § 2192 (3d ed.)). We are also aware that an evidentiary privilege is not without its costs. Since the privilege has the effect of withholding relevant information from the factfinder, it applies
only where necessary to achieve its purpose. United States v. Zolin, 491 U.S. at 562 (citations and internal quotation marks omitted). In the instant case, the recognition of an executive session privilege is not necessary to protect matters discussed in an executive session from public scrutiny. (See footnote 9)
Moreover, our decision herein is supported by courts in other jurisdictions that have addressed this issue and have declined to find that similar open meetings statutes create an executive session privilege. See , e.g., State v. District Judges for Chase County, 273 Neb. 148, 728 N.W.2d 275, 279-80 (2007) (finding that [i]n view of the fact that the Open Meetings Act contains no language related to a closed session discovery privilege, we conclude that no such privilege exists in Nebraska); Springfield Local Sch. v. Ass'n of Pub. Sch., 106 OhioApp.3d 855, 667 N.E.2d 458, 467 (1995) (ruling that there is no absolute privilege to be accorded discussions held in executive session [although] a trial court, in its discretion, may limit discovery); Dillon v. City of Davenport, 366 N.W.2d 918, 921 (Iowa 1985) (open meetings act does not specify that the discussions at the closed meeting acquire the status of confidential communications which are privileged from any use other than specified); Connick v. Brechtel, 713 So.2d 583, 587 (La.Ct.App. 1998) (finding the fact that some matters may be discussed in executive session does not render the . . . discussions and actions taken in executive session privileged); Sands v. Whitnall School Dist., 312 Wis.2d 1, 754 N.W.2d 439 452 (2008) (finding no language in our own open meetings laws indicating that our legislature intended to create a broad discovery privilege for communications occurring in closed sessions of governmental bodies).
The petitioners further contend that permitting discovery of discussions conducted in executive session will impede a full and frank discussion of the issues in such sessions. We disagree. Nothing in our decision herein impedes the purpose for which the Legislature enacted the executive session exception to the Open Governmental Proceedings Act. Government bodies can still freely consider and discuss in closed meetings all relevant information necessary to lawfully and efficiently conduct government business. We simply reaffirm the rights of a litigant in a civil action to discover potentially relevant evidence of unlawful conduct arising from an executive session of a government body.
Finally, this Court is convinced that while there is no compelling reason to shield executive session discussions from discovery, there are compelling reasons not to do so. The very notion of an executive session privilege is offensive to the ideal that all citizens have equal access to a fair and unbiased system of justice regardless of the identity of the alleged wrongdoer. Recognition of an executive session privilege would have the pernicious effect of immunizing public agencies from civil liability for any conduct engaged in during executive sessions. While the Open Governmental Proceedings Act provides that no decisions are to be made in executive session, nothing prevents members of a government body from actually making their decision in executive session and then merely formalizing that decision in an open session.
Accordingly, for the foregoing reasons, we hold that the provision of the Open Governmental Proceedings Act, W. Va. Code §§ 6-9A-1 to 6-9A-12, which recognizes in specific and limited circumstances the right of governing bodies to meet in an executive session which is closed to the public is not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which are not otherwise privileged.