Associated Press v. Canterbury

appraisal expertise opine should no mention in the record of economic obso- lescence, proper procedure unique evaluation for these encompasses “legislation which that properties. impairs property rightsf.]” restricts or W. § Every Va.C.S.R. 110-1P-2.2.1.1. learned very complicated programs These are appraisal examining treatise and court case many governing prop- have technical rules the term “economic obsolescence” holds that erty’s operation. appraisal The of the value government-mandated restricted rents are a properties of these does not fit into the rou- form of economic obsolescence that lowers market, process tine evaluation under the factor, the value of real estate. This which income, approaches calculating or cost ease, favors the landowners in this was com- properties. value of real The real estate pletely ignored by the appraisers. assessors’ housing very market for subsidized differ- ent market proper- from the for other rental government-mandated When restricted ty because of the restrictions on rent and the fully fairly rents are considered in both proper- lack of a market for the sale of these approach income and the approach cost ties. The Tax existing regu- Commissioner’s (as §§ value defined in W. Va.C.S.R. 110- designed lations are not to evaluate these -2.5.3.4), 1P-1 appraisal value under unique properties, restricted-rent although appi’oach each should be similar. require do consideration of actual rents arriving at a value. See W. Va.C.S.R. case, §§ 110-1P-2.1.1.9 [1991]. government-mandated

actual rents are re-

stricted rents. taxing authorities in pro the more

gressive adopting regulations states are guides directly valuation address the 688 S.E.2d 317 proper evaluation appraisal methods for the PRESS, The ASSOCIATED Plaintiff type properties.2 of these Although at least Below, Appellant, adopted states addressing have statutes v. appraisal properties, of LIHTC I’m not legislators any sure expertise have more CANTERBURY, Steven D. Administrative evaluating this arcane area in restricted Virginia Supreme Director of the West projects income appellate than judges. court Appeals, Below, Ap- Court of Defendant The Tax Commissioner should use reliable pellee. appraisal treatises, experts, learned evalua No. 34768. states, guides tion of other and studies to develop Virginia guide a West for the fair Appeals Court of valuation and apprais tax assessment for the Virginia. West al properties. of restricted-rent Submitted Oct. 2009. My second observation is in review- Decided Nov. 2009. ing the arguments, record and the Court was concerned that the record is devoid of Concurring Dissenting Opinion of Justice showing evidence approach that the cost Workman correctly. was done In footnote 15 of the Nov. 2009. majority opinion, Justice Davis instructs the circuit courts on remand to determine if the correctly

assessors applied ap- the cost

proach, including giving consideration to

physical deterioration, deprecia- functional

tion, and required economic obsolescence as W. Va.C.S.R. 110-1P-2.2.1.1. There was See, Revenue, e.g., Washington Department

2. erty Multifamily Tax Assessment of Low-Income Housing 2008). Prop- Housing "Low-Income Properties” (September Valuation Guide:

from an order the Circuit Court of Kana County denying part request wha AP’s injunctive against relief Steven D. Can terbury, Administrative Director of the West Virginia Supreme Appeals, Court of defen (hereinafter dant below referred to as “Mr. Canterbury”). Specifically, alleges the AP ordering the circuit court committed error in Canterbury only Mr. to turn over five of sought thirteen e-mail communications it un Virginia der the Freedom of Informa West (hereinafter “FOIA”).1 tion Act referred to as Canterbury cross-appeal filed al Mr. has leging circuit court committed that the error finding in that five of the thirteen e-mails subject under After to disclosure FOIA. McGinley, Rudolph DiTrapano, L. Sean P. record, thorough review of the briefs and Charleston, DiPiero, DiTrapano, Barrett & having arguments and listened to the WV, McGinley, Law of Pat- Patrick C. Office parties, part we affirm that of the circuit WV, McGinley, Morgantown, Ap- for rick C. eight court’s order which denied disclosure of pellant. Additionally, the e-mails. we of reverse Goodwin, Goodwin, & Carte P. Goodwin part required of the order which disclosure of WV, Amicus, Charleston, for Judicial WV remaining Finally, five e-mails.2 we re Assoc. mand this case to the trial court for further Baur, Virginia Terris S. ACLU of West disposition opinion. consistent with this Amici, Foundation, Charleston, WV, for the Reporters The Committee for Freedom Assoc, Press, WV, I. Capitol ACLU of Editors, Reports The Radio & Television & AND FACTUAL PROCEDURAL Assoc., Society The of Pro- News Directors HISTORY Press Assoc. fessional Journalists WV simple are rather Wilmoth, The facts of this case Ramey, Step- Aneil G. William D. 2008, 29, February Johnson, straightforward. On & Robert P. Fitz- toe & Charleston Offices, simmons, request to Mr. the AP submitted FOIA Fitzsimmons Law Wheel- WV, Guida, ing, Canterbury.3 request sought Daniel J. Law Office The FOIA all Guida, Weirton, WV, Appellee. Daniel J. reflecting communication between Maynard4 Elliot E. and Donald L. Justice DAVIS, Justice: Blankenship5 during period beginning 2006, 1, January through February 2008.6 Press, plaintiff below The Associated (hereinafter AP”), Canterbury request on appeals Mr. denied the AP’s referred to as “the 29B-1-1, seq. ganizations helpful insights and the their briefs W. et 1. See Va.Code parties’ arguments. lend to the acknowledge 2. We the contributions wish earlier, broadly- AP an 3. The had submitted the briefs submitted the Amici Curiae. from worded, 16, 2008, request January on supporting Mr. Canter- An amicus curiae brief Canterbury. Mr. That re- which was denied Virginia bury's position was filed the West appeal. quest is not the of this brief Judicial Association. An amicus curiae supporting position was filed on behalf the AP’s re- 4. Justice was defeated his bid for Reporters The Committee for Freedom of the election in 2008. Press, The American Civil Liberties Union Capitol Report- Virginia, West The Association of Energy Blankenship Massey 5. Mr. is the CEO Editors, The and Television News ers and Radio Company. Association, Society Directors The of Profession- Journalists, sought Virginia request all communica- and The Press Asso- 6. The FOIA also al West Blankenship Mr. participation tions that were made between ciation. value the of these or- We ground right injunctive such communication was [u]nless absolute to disclosure under FOIA. There statute, power relief is conferred after’, AP April on filed a com continue, grant modify, or refuse or to or plaint seeking declaratory in circuit court temporary permanent dissolve a or a in- injunctive relief.7 junction, preventive mandatory whether character, ordinarily rests in the sound 2008, In June of the circuit court held an court, discretion of the according trial evidentiary hearing. During hearing, the facts and the circumstances of the Canterbury Mr. testified to the existence of (hereinafter case; particular and its action the exer- electronic mail referred to as “e-mail”) cise of communications that covered the its discretion will not be disturbed period request. appeal under the AP’s FOIA on showing the absence of a clear produced circuit court ordered the e-mails be anof abuse of such discretion. Subsequent for an in camera review. to its Syl. MackJo, Inc., pt. Corp, G Inc. v. e-mails, in camera review of the the circuit (1995) (quoting W.Va. 466 S.E.2d 820 court September entered a final order on Syl. pt. Stuart Washington v. Lake Real- order, 2008. In that the circuit court found ty Corp., 141 W.Va. 92 S.E.2d 891 that five of the e-mails involved “Justice (1956)). specifically, More we have held Maynard’s campaign for re-election are [and] reviewing exceptions [i]n the to the find- to disclosure under ings of fact and support- conclusions of law However, FOIA.” the order further held ing granting [or ... denial] [an] remaining [eight] “that the e-mail communi- injunction, apply three-pronged we will cations are not records as defined deferential standard of review. We review way [eight] FOIA. no do these e-mails the final order granting denying] [or contain information related to the ‘affairs of injunction ... and the disposition ultimate government’, Maynard’s Justice ‘official acts’ standard, under an abuse of discretion we officer, as a state or the conduct of the review underlying the circuit court’s factu- Accordingly, business.” the circuit findings al clearly under a erroneous stan- court Canterbury ordered Mr. to disclose to dard, and questions we review of law de only the AP the five e-mails which involved novo. Maynard’s Justice campaign for re-election. order, 1, Syl. pt. parties Imperial From this State v. ap- Mktg., filed their 196 W.Va. peals. 346, (1996). 472 S.E.2d 792 Accord Weaver Ritchie, 690, 693, v. 197 W.Va. 478 S.E.2d

II. 363, (1996). 366 With these standards in mind, we turn to the merits of this case. STANDARD OF REVIEW judice, In the ease sub we are called III. upon to review a final order the circuit DISCUSSION granted, denied, court part, that part, request injunctive the AP’s for presents relief.8 This case the issue of whether general As a matter we have recognized thirteen e-mail communications sent Jus- staff, Maynard’s and Justice declaratory as well as communi- unnecessary.” relief is We also cation between Justice his staff parties suggested and/or should note that the have Magann, with employee. Brenda a Court The the standard of review is that which we utilize clearly reflects that no such communica- summary judgment. Farley for Worley, See v. tions existed. 835, (2004) 215 W.Va. 599 S.E.2d 841 (" 'Summary judgment preferred is the method 29B-1-50) 7. See W. (1977)(Rep. Va.Code Vol. ”) resolving brought (quot- cases under FOIA.’ 2007) ("Any person right inspect denied the ing Mgt., Evans v. Personnel Office of public body the proceedings record of a institute 34, (D.D.C.2003)). However, F.Supp.2d injunctive declaratory relief in applicable standard of review is not because the county the circuit court in the where the evidentiary hearing trial held court an in which kept.’’). record is testimony witness taken. We therefore treat 8. The explicitly circuit court's order disposition arising held that anas order from a bench injunctive provided insofar "[a]s the relief 52(a). effec- trial. See W. Va. R. Civ. P. tively dispute parties, resolves the between the public body Blankenship are When a asserts that certain Maynard to Mr. tice portions records under FOIA.9 documents or of documents in its disclosure as issue, ease possession exempt this substantive from disclosure un In addition to un important procedural exemptions issue presents an der contained W. (2002 Vol.) (2003 Va.Code, concerning the circuit court’s in Repl. der FOIA 29B-1-4 review of the thirteen e-mails. Inso Supp.), public body produce camera must procedural Rosen, both the substantive and Vaughn Vaughn far as index named for v. specific (D.C.Cir.1973), denied, lan require an examination of issues 484 F.2d 820 cert. FOIA, provide 977, 1564, must guage under we 415 U.S. 94 S.Ct. 39 L.Ed.2d 873 analysis. (1974). statutory our framework for Vaughn provide The index must relatively justification why detailed as to long Court has held This exempt, specifically is each document iden “ language of a statute is clear ‘[w]here reason(s) tifying why exemption plain meaning ambiguity the and without Va.Code, 29B-1-4 is under W. relevant resorting to the rules accepted to be without correlating exemption the claimed with interpretation.’” v. Goals Coal Huffman particular part of the withheld docu Co., 724, 729, 679 S.E.2d 223 W.Va. exemption ap ment to which the claimed (2009) Elder, Syl. pt. v. (quoting State plies. Vaughn index need not be so (1968)). On the 165 S.E.2d 108 W.Va. compromises privilege detailed that it hand, ambiguous statute that “[a] other public body claimed. The must also sub applied.” before it can be must be construed affidavit, indicating why mit an disclosure Buckalew, Syl. Farley pt. v. 186 W.Va. harmful and documents would be (1992). Additionally, as a 414 S.E.2d 454 why exempt. such documents should matter, general “the words of a statute are to 6, Syl. pt. part, Farley Worley, v. 215 signifi given ordinary their and familiar be (2004). 412, pur- 599 S.E.2d 835 The W.Va. T meaning[.]” and Amick v. C & Dev. cance “ pose Vaughn index is ‘to allow the 118, 73, Co., Inc., 115, 416 187 W.Va. S.E.2d validity courts to determine the of the Gov- (1992). 76 “It is not for this Court arbitrari physically ernment’s claims without examin- it does ly [a statute] to read into that which ” Co., ing Daily Inc. each document.’ Gazette say. not to not Just as courts are eliminate Virginia Office, Dev. v. West W.Va. through judicial interpretation words that (1996) (quoting 482 S.E.2d included, purposely obliged we are Corp. Department Coastal States Gas v. something Legislature to add to statutes (D.C.Cir.1980)). Energy, 617 F.2d Banker, purposely Banker v. omitted.” case, the record shows that In the instant 535, 546-47, 474 S.E.2d 476-77 W.Va. Canterbury Vaughn index produced Mr. (1996). trial court. for the In Review Under A. Camera FOIA Nevertheless, beyond the trial court went Vaughn index to make its opin indicated earlier in this reliance on the

As we ion, re- Canterbury regard, In this the trial court required the trial court Mr. decision. quired production of the e-mails produce the thirteen e-mails for an in actual to for an in review. The trial court’s previ This Court has not camera camera review. Court is specifically “[t]he noted that ously producing addressed the issue of docu order re- cognizant that in other cases in camera an in camera review in a FOIA ments for burdensome, may time and of this view be both proceeding. Prior FOIA decisions cost, however, given ‘public approved requiring government the definition Court presented, case entity produce Vaughn index: record’ and the facts of the to or letters abundantly disclosure 'internal memoranda 9. We wish to make clear that this from body.' prepared by any public W. opinion issue of whether received or does not address the -4(a)(8) (2008). Accordingly, § his Va.Code 29B-1 communication between Justice and concerning information personnel such internal communications law clerks or other court making judicial clearly decision judicial decision-making would reflect the was to disclo- exempt disclosure process from court’s order ex- and would sure under FOIA. The circuit exempts pressly passing "FOIA under FOIA.” noted in in camera Court believes review of the e- In the proceeding, instant the trial court required- mails evidentiary this case.” held an hearing prior requir- ing Canterbury produce Mr. the thirteen authority The for the trial court’s in e-mails for in camera review. Insofar as the camera review is found in W. Va.Code trial court articulated a valid reason for 29B-l-5(2) (1977) 2007). § (Repl. Vol. This e-mails, needing actually review the we states, part, any statute in relevant that “[i]n find that the trial court did not abuse its [FOIA], suit filed juris under the court has requiring discretion in Canterbury Mr. production any diction to ... order the produce the e-mails for an in camera review. improperly person withheld from the Determining B. Whether the E-mails disclosure____The court, seeking on its own are Public Records Under FOIA motion, may view the documents in contro versy reaching in camera before a deci begin by noting We underlying plain unambigu sión!.]” view of the purpose FOIA has been set out statute, language ous of this we now hold Legislature as follows: proceeding seeking in a disclosure of Pursuant to philosophy the fundamental Virginia records under the West Free of the American rep- constitutional form of Act, § dom of Information W. 29B- Va.Code government resentative which holds to the 1-1, seq., et a trial court sponte sua principle government is the servant of production order the of the records withheld people, them, and not the master of it and hold an in camera review of the records hereby declared policy to be the order to decide whether of the records Virginia per- state of West that all to disclosure under the Act. W. are, sons expressly pro- unless otherwise (1977) 29B-l-5(2) Va.Code (Repl. Vol. law, vided entitled to full complete 2007). regarding information gov- the affairs of ernment and the official acts of those who Although acknowledge we that a trial represent them as officials and em- court has discretion to conduct an in camera ployees. people, in delegating author- documents, requested review of a trial ity, give do not their servants the court should “not resort to in camera review ” right to good decide what is people for the ‘as a matter of course.’ United America to know and good what is not for them to Fin., Potter, 29, Inc. v. F.Supp.2d 531 40 n. 3 people know. The remaining insist on in- (D.D.C.2008). words, In other they may formed so that retain control a court [trial] should not undertake in over government they the instruments of camera review of withheld documents as a end, have created. To provisions that requiring agency’s substitute for expla- of this liberally article shall be construed nation exemptions of its claimed in accor- with-the carrying view of out the above Vaughn. dance with court [trial] declaration policy. of should first agency opportuni- offer the (1977) § W. Va.Code (Repl. 29B-1-1 Vol. demonstrate, ty through Vaughn [a in- 2007).. This Court has held that disclo- dex], “[t]he detailed testimony, affidavits and oral provisions sure of this State’s Freedom of the withheld clearly information is Act, Va.Code, Information W. 29B-1-1 et exempt and segregable, contains no nonex- amended, seq., as liberally are to be con- empt portions. strued, and exemptions to such Act are to Spirko Service, v. United States Postal 147 Va.Code, strictly construed. W. 29B-1-1 (D.C.Cir.1998). 992, F.3d 997 See also Wick 4, Syl. pt. [1977].” Casey, Hechler v. Communications County Co. v. Montrose 434, (1985). W.Va. 333 S.E.2d 799 Comm’rs, County Bd. 81 P.3d (“As (Colo.2003) (1992) requesting party § (Repl. Va.Code 29B-1-3 W. 2007) ease personal diary did not show that provides a “[e]very was Vol. person has a likely record, a the trial right inspect court is not copy any public or record of authorized to conduct an in state, camera review of public body except in this as other personal diary.”). the defendant’s expressly provided by wise [§ 29B-1-4] of ly, argues “public body” the AP the e-mails became defines a FOIA this article.” because of the interest context records sought.12 in which We will ad officer, department, agency, every state separately. dress each issue executive, ju- legislative and including the division, bureau, board departments, dicial 1. The e-mails are not commission; city every county and express under definition of FOIA’s district, special dis- body, governing school “generally permits record. FOIA board, trict, any municipal corporation, by govern of information retained disclosure commission, agency council or department, i.e., agencies, public records.” Frank ment thereof; any body which is cre- other Davis, Cleckley, lin D. Robin J. & Louis J. authority by or local or which is ated state Palmer, Jr., Litigation Handbook on West or local au- primarily funded the state 26(b)(1) § Virginia Procedure Rules Civil thority. (3d 2008).13 ed. A record” under 29B-l-2(3) (1977) (Repl. § Vol. Va.Code W. “including] any writing FOIA is defined as 2007). clear that the definition It is containing information to the con judi includes the “public body” under FOIA business, prepared, duct of the government.10 of State See W. cial branch public body.” owned and retained W. 10.04(a) (“Ml are, persons Tr. Ct. R. Va. 29B-l-2(4). fully § order Va.Code provided by law expressly unless otherwise presented in the ease consider the issues sub 10.03, excepted by Rule entitled to full and however, judiee, we must further discern the regarding operation complete information meaning of two elements of this definition: system. Any elect judicial and affairs “writing” and “the business.” appointed official or other court em ed or administering judi ployee charged with First, “writing” is defined FOIA as system promptly respond to cial shall books, cards, tapes, “any maps, photographs, Virginia request pursuant filed to the West recordings documentary materials or other Act.”); State ex rel. Freedom of Information regardless physical form or characteris Brotherton, 214 440 n. Wyant v. W.Va. 29B-l-2(5). § It is clear tics.” W. Va.Code (“We (2003) 818 n. 13 589 S.E.2d “writing”, and we from FOIA’s definition Virgi recognize that Rule 10.04 of the West hold, “wilting” definition of a so permits Rules access to court nia Trial Court (1977) 29B-l-2(5) contained W. Va.Code court records under files and other 2007), Virginia (Repl. of the West Free Vol. FOIA”). Clearly, may be utilized to Act includes an e-mail dom of Information judicial public nonexempt records.11 obtain Spokane v. communication. Accord Tiberino Prosecuting Attorney, arguments County, essentially two The AP makes Office (2000) 680, 13 Wash.App. why P.3d as to the thirteen e-mails sent Justice (“Ms. dispute that the e public rec- Tiberino does not Blankenship Mr. are to First, they writings and that are the AP asserts under mail records are ords. owned, records, or retained a state public prepared, used express definition of FOIA’s Second, although FOIA does not agency.”). Mternative- public e-mails were records. Proceedings Corpus in West Vir- suggestion Canterbury’s Habeas reject in Mr. viction 10. We application ginia filing petition habeas no to records a for writ of brief that FOIA has government. kept by judicial support branch of corpus and to obtain documentation thereof.”). abso- 11. We wish to make clear that there is no judi- right nonexempt of lute to obtain disclosure variety of brief frames the issues a 12. The AP's through public FOIA if other means cial records However, ways. those issues to we have reduced 3, e.g., Syl. pt. State ex of disclosure exist. See analytical their essence. Brotherton, 434, Wyant 214 W.Va. 589 rel. v. ("An (2003) 812 inmate not use the S.E.2d whether or not as this case turns on Act, 13. Insofar § 29B- Freedom of Information W. Va.Code records,” “public we e-mails are the thirteen pur- seq., obtain court records for the 1-1 et to exemptions. See W. not address FOIA’s need filing petition corpus. pose for writ of habeas a (2009) (setting Instead, (Supp.2009) § 29B-1-4 proce- Va.Code an inmate is bound to follow exemptions). Governing out FOIA’s in the Rules Post-Con- dures set out 716 business,” computer County “the it that is on a of the Pinal ... phrase

define the correctly phrase governmental entity presumed stated that “the has been to be a ... ‘public commonly public generated business’ is understood record and that records government.” of the to mean the business public computer presumptively open on a Ass’n, Symphony Forest O’Melia v. Lake public inspection.” Griffis, 156 P.3d at 825, Inc., (internal omitted). 237 Ill.App.3d Ill.Dec. 708 420 quotations The ease (1999). is, N.E.2d That “the ultimately the Arizona reached ... ‘public only relate words business’ purely person- that a Court. That court held purview agency’s within the matters public al e-mail communication was not a duties, jurisdiction.” Lucarelli functions record disclosure under Comm’n, v. No. CV Freedom state’s FOIA statute. reasoned as of Information Griffis 91-0063707S, *3 WL at follows: 1992). Aug.18, (Conn.Super.Ct. See also public requires pub- law records all Fulson, City Co. v. Kansas Star 859 S.W.2d lic and maintain officials to make (“Public (Mo.Ct.App.1993) business reasonably necessary provide knowledge encompasses matters over which the those of all activities undertake in the fur- public governmental body supervision, has therance of their duties. That definition control, jurisdiction advisory power.”). or encompass purely does not documents of a upon plain language Based of FOIA’s Instead, private personal only or nature. record,” definition of we find this having those documents a “substantial nex- ambiguity. definition to be free from See agency’s government us” with a activities Ogden City Newspapers, Inc. v. Williams qualify public Determining records. as a town, 453 S.E.2d 192 W.Va. status, therefore, requires document’s a (1994) (“[W]e ‘public find definition of inquiry. content-driven plain unambigu to be record’ [FOIA] purpose Because the nature ous.”). definition, Under that an e-mail com status, pos- document determine its mere writing munication or is a record other by public session of a document a officer or only it the conduct of the relates to if agency does not itself make that docu- business, duties, i.e., responsibili official record, expenditure ment a nor does body. obligations particular public ties or creating funds in the document. hand, Turning issue at this Court To hold would otherwise create an absurd previously person- has not decided whether a Every government- result: made on note al e-mail communication a official paper, government owned in a located of- or employee fice, a constitutes government-owned written pen, with a However, defined under FOIA courts composed government-owned or on a com- other states have addressed the issue under puter presumably would rec- respective equiva- their statute or analysis, its grocery ord. Under list below, lent. majority As illustrated government employee written while work, courts have held that e-mail commu- at a communication to schedule a by public employee dinner, nication official or family does report a child’s or card purposes record for constitute a government stored in a drawer in a desk equivalent. disclosure under FOIA its employee’s would be office to dis- public closure. The records law was never example, For court in the v. Pinal Griffis documents; encompass intended to such (2007), County, 215 Ariz. 156 P.3d 418 purpose open govern- the law is of the to of e- addressed the issue whether activity public scrutiny, ment to not to by county mails sent and received a former private disclose information about citizens. manager public Griffis, were documents. a newspaper Although public local A’izona obtained a records trial the law creates requiring strong court order a in favor presumption disclosure of e-mails of disclo- sure, county applies only sent and the presumption received former man- when a ager during specific period. a qualifies public time The trial document as a record. first grounds “everything apply presumption court did so on To of disclosure the a when sages at here have a demonstrable nature of the issue as to the question a exists performance public in- inappropriate: The initial connection to the of is document document is receipt expendi- be whether the functions or involve the or quiry must The reason for this apparent to the statute. It ture of funds. a purely clear’: Disclosure of requirement large portion messages the in- of e-mail nothing to advance documents does private only sexually-explieit stead contain ex- underlying the purposes the changes Baker Sale. between Based purely private docu- e-mails, The contents of law. upon the content of the it is clear light govern- how the ments shed no on per- in furtherance of their were sent conducting spend- or ment is its business relationship and not for sonal were use money. ing taxpayer performance of the functions of the Clerk and Recorder’s Office. These (internal quota 421-22 Griffis, 156 P.3d at messages very private demonstrate ex- omitted).14 tions and citations only changes____The purpose discernable Publishing Co. v. Similarly, in Denver disclosing messages of the content of these County County Commissioners Board of light Baker and is to shed on extent of (Colo.2005), a Arapahoe, 121 P.3d 190 of newspaper publishing company fluency sexually-explieit termi- Sales’ with successfully nology satisfy prurient interests required a court order that obtained trial public. press and the a communication between disclosure of e-mail Accordingly, not all of the e-mail mes- deputy county and assistant chief recorder sages at records under issue Open Records Act. The under Colorado’s CORA..... of Colorado. reached the Court ease e-mail commu- high

The state court held that purely personal was not a nication that was appeals’ Given court of erroneous subject to disclosure under Col- public record understanding “public records” defi- Open Records Act. The court rea- orado’s district court’s nition and the error as follows: soned finding messages that all of the order plain language ... Given the records”, “public we reverse the court of whole, statutory scheme a it is CORA as application appeals’ interpretation and apparent that e-mail must meet the same and remand “public records” definition requirements as other record to with the directions to return ease “public “public record”. To be a deemed a findings consistent the district court for record”, message must be for use an e-mail opinion. with this performance public functions or in the Co., Publ’g Denver 121 P.3d at 199-204. receipt expenditure pub- involve the ease, City In another such State v. creation, simple possession, lic funds. The (Fla.2003), Clearwater, a news- 863 So.2d 149 receipt e-mail record or of an seeking an paper company filed an action employee dispositive official or is not as City of compelling order Clearwater “public record”. whether the record is received release all e-mail sent from or public employee The fact that a city employees government- who used two message received a while official sent or computers for communication. owned by public using pub- compensated funds or appel- rejected request. An trial court licly-owned computer equipment is insuffi- affirmed, question but certified late court message rec- cient to make the certified Supreme Court. The to the Florida ord”. question was as follows: or re- all e-mails transmitted considering the content of the e- Whether After statute, govern- employees of a required by ceived messages, mail pursuant agency public records ment conclude that not all of the e-mail mes- we public document. high case of the e-mails constituted 14. The court in remanded the Griffis of whether the contents of determination 119.011(1), and, therefore, Section Florida statutes business” do not fall within (2000), I, 24(a) and Article Section the public definition of records in section 119.011(1) Florida Constitution virtue of their placement virtue of their on placement government-owned on a com- government-owned computer system. puter system. Accordingly, we rephrased answer the question negative in the approve Clearwater, the high 863 So.2d at 150. The court Second District’s decision. in Clearwater question answered the certified negative in the as follows: Clearwater, 863 So.2d at 151-55. Publishing argues Times place- that the The Arkansas case of County Pulaski v. City’s ment of on computer e-mails the Democrat-Gazette, Inc., Arkansas 370 Ark. system records, makes the e-mails (2007), 260 S.W.3d 718 county involved a regardless of their content or intended comptroller who was arrested for embezzle purpose____ arrest, Subsequent ment. a local newspaper complaint filed a seeking disclo ... Publishing’s argument Times sure of all e-mail communications between placement City’s of e-mails on the com- county comptroller nongovernmen and a puter automatically network makes them third-party tal county was stored on a contrary records is to this Court’s computer. The trial court ordered disclosure Byron, Harless, decision in Shevin v. e-mails, of all county and the appealed to the Assocs., Schaffer, Inc., Reid & 379 So.2d Arkansas Court. appeal, On (Fla.1980). Shevin, this Court re- county argued pub that the e-mails were not jected the First District’s conclusion that lic documents to disclosure under the 119.011(1) “section applies every- to almost state’s high FOIA statute. The court thing generated or received Pulaski addressed the issue as follows: agency.” Although Id. at 640. this Court County argues Pulaski that when deter- acknowledged Legislature that the broad- mining whether a document is a ened the class of enacting records in record, we must look at the content of the 119.011(1), section this Court concluded document, rather than where it is located. that the definition “public of the term rec- Appellee agrees that we must look at the ords” limited information to those content, argues but also that we must look is, materials which constitute records —that context, at including “the circum- prepared materials that have been with the surrounding stances the transmission of perpetuating intent of formalizing e-mails, e-mails, the location of the Thus, knowledge.” Id. merely it cannot subsequent light facts that have come to placement City’s of the e-mails on the regarding comptroller] position [the in his computer system that makes the e-mails as a official.” Rather, public records. the e-mails must have prepared been “in connection with agency official business” and be “intended County argues Pulaski that an in cam- communicate,

to perpetuate, or formalize era necessary review is in this case to knowledge of type.” some Id. determine the content Spe- of the e-mails. cifically, County Pulaski asserts that n .. [Pjrivate finding circuit court’s could not documents have been cannot be reviewing deemed made without solely by virtue of e-mails Further, question. placement their it contends that agency-owned on an be- com- cause puter. the circuit court did determining not conduct an factor is the na- record, review, ture camera physical not its e-mails were not location. record,

included in the and therefore there is no evidence in support the record to Based on foregoing, we conclude findings circuit court’s “personal” e-mails are not “made or pursuant received to law or ordinance or in Appellee responds, arguing that because connection with the transaction of official there is no claim that the e-mails fall under

719 paper is on which a officer in camera review writes exemption, an a FOIA something.” State ex rel. v. necessary---- not Steffen Kraft (1993), 619 67 Ohio St.3d N.E.2d the circuit court must have held that We 688, “To the extent that item ... 689. question information in review the relevant ‘record,’ i.e., is not a does not serve to exemption FOIA whether an to determine etc., present organization, document applies____While the to disclosure office, that the e- not involve a claim it is not a record and case does exemption, we mails fall under an need not be disclosed.” State ex rel. Fant hold that an in camera review is neces- v. Enright, 66 Ohio St.3d ^[186] at 188, sary. N.E.2d ^[997] at 999 [ (1993) ]. If, as al- Wilson-Simmons, leged by requested purpose

Comparing the nature against agency’s official’s or ac- e-mail consists of racist slurs her document with an co-workers, then, required although to determine whether the individual tivities necessarily requires a fact- reprehensible, nexus exists the e-mail does serve to functions, inquiry, specific inquiry. organization, poli- To make that document personal, cies, decisions, maintaining privacy of procedures, operations, while or documents, per- a court should non-public department. other activities of the sheriffs A neutral an in camera review. allegation form There is no evidence or that the be the final arbiter of what court should alleged racist e-mail documented sheriffs public record---- qualifies as a policy procedures. or It was department

allegedly only to a few co-work- circulated ers and was not used to conduct sheriffs County relying on Pulaski Rather than department business. Appellee or to make the determination public, it is whether the documents are conclusion, requested This e make necessary to have a neutral court purposes mail not a record for of R.C. Accordingly, remand this this decision. we 149.43, supported both state and fed court with instruction to case to the circuit Steffen, precedent. eral See 67 Ohio St.3d conduct an in camera review to determine (“A 439, judge’s at 619 N.E.2d at 689 trial a record of the if these e-mails “constitute personal during made handwritten notes performance of official functions that are trial are not rec the course of a by public or be carried out official should ords.”), and eases cited at 67 Ohio St.3d at thereby making them employee” 689; Union, 619 N.E.2d at Internatl. pursuant FOIA. records” Auto., Agricultural Aerospace & United Pulaski, at 722-26. 260 S.W.3d v. Voinovich Implement Workers Am. Likewise, in State ex rel. Wilson-Simmons (1995), App.3d 654 N.E.2d 100 Ohio County Department, 82 (Governor’s v. Lake ap calendars and Sheriff's (1998), an Ohio St.3d 693 N.E.2d 789 pointment did not constitute records books county department employee of a sheriffs 149.43 to disclosure under R.C. petition for a writ of mandamus with filed a they did not serve to document because Court, seeking compel functions.); Ohio Bur. any official activities or provide to an e-mail the sheriff to her access Dept. Affairs, v. States Natl. Inc. United allegedly generated by employees fellow (C.A.D.C.1984), 742 F.2d Justice high against her. The here, contained racial slurs (“Where, is cre a document held that the e court Wilson-Simmons agency employee, consideration ated mail was not a record and therefore what extent that em of whether and to the sheriff did not have to disclose the e-mail agen ployee used the document to conduct Records Act. The under the state’s Public cy highly relevant for determin business is opinion reasoned as follows: ‘agency ing that document is an whether meaning FOIA [the record’ within the requested e-mail does not constitute Act].”); 149.011(G) of Information purposes of R.C. federal Freedom

“records” for 149.43(A)(1) Bd. v. Natl. Labor Relations “does not Gallant and 149.43. R.C. (“[E]ven (C.A.D.C.1994), F.3d any piece ‘public define a record’ as 720

though employing agency resources in the correspondence creation of the is a rele- 10-7-301(6) language § of T.C.A agency analysis, vant factor in the unambiguously states in order to be a agency the utilization of resources this thereby subject or state record and significant ease is not as the other fac- 10-7-503, § to access under T.C.A. employed precedents, tors in our which document must be “made or pur- received compel a conclusion ... corre- suant to law or ordinance or in connection spondence personal, rather than at- with the transaction of official business agency.”). tributable to the any governmental agency.” inAs Therefore, although alleged racist e- case, question when a arises as to whether by public employees mail was created via a certain purview documents fall within the system, office’s e-mail it was never definition, statutory of the it is the role of used to conduct the business of the court, the trial as the gatekeeper of the office and did not constitute records for law, to make that determination. 149.011(G) purposes of R.C. and 149.43. § When T.C.A. 10-7-503 is read in con- Wilson-Simmons, 693 N.E.2d at 792-93. junction with the relevant definition at 10-7-301(6), T.C.A. it is clear that the Lastly, in County Brennan v. Giles Board legislature placed some limitation on those Education, No. M2004-00998-COA-R3- documents be accessed under the CV, (Tenn.Ct.App. Aug.18, 2005 WL 1996625 Public By plain Records Act. language 2005), plaintiff filed an seeking action definition, this limitation involves county have a board of education disclose all purpose behind the creation of the “digital activity, records of Internet including (i.e. document whether it was “made or received, e-mails sent and web sites visited pursuant received to law or ordinance or in and transmissions sent and received and the connection with the transaction of official identity any and all Internet Service Pro by any governmental business agency”). Brennan, viders.” 2005 at WL *1. However, not, the limitation does as the The trial court conducted an in camera re Appellant argues, upon inquiry rest into requested view of the documents and deter (i.e. the time during whether business mined that none of the documents constitut hours) upon place or where the docu- ed a record for disclosure under the (i.e. produced ment was stored on and/or plaintiff ap state’s Public Records Act. The was, computers). school owned It there- pealed “that, arguing by virtue of the fact fore, necessary per- for the trial court to requested that the documents were created judicial form its viewing function during school hours virtue of the and/or requested documents in camera to deter- fact requested that the documents were cre mine whether these documents were ated stored computer on school owned and/or “made pursuant or received to law or ordi- facts, equipment, se, per these make them nance inor connection with the transaction Brennan, records under the Act.” 2005 of official any governmental business WL at *2. The Tennessee Court of agency.” For the trial court to allow the Appeals disagreed plaintiff with the as fol documents to be accessed under the Public lows: just by Records Act the mere fact that Appellant [T]he interprets herein the Pub- during were made business hours very lic broadly Records Act champi- computers on that were school- and/or reading whereby any ons citizen of Ten- owned would be a violation of the clear may gain nessee access to and all and, legislature consequently, intent of the during records created work hours on com- judicial dereliction of the most basic puters operated by owned and governmen- duty. However, tal entities. light when read in applicable definitions, statutory Brennan, it is at WL *2-3. Accord clear legislature News, that the City LP, did not intend for Morning Dallas v. Dallas (“The all records to public perus- be available for (Tex.App.2009) S.W.3d ____ al requested ‘public e-mails are not information’ Cowles, collected, assembled, not meet this definition.” do they are unless 900. a result of Idaho’s broad the transaction P.3d at As in with maintained connection record, (1) statutory public high the by governmental definition of a official business of (2) body the court in Cowles held that the e-mails consti- governmental and body; or for a public record. body the information or tuted a owns governmental it.”). right has a of access justified decision in the Court’s The Cowles case, public AP have determination that the e-mails were the seeks to In the instant records, part, upon that majority position of based fact reject Court county prosecutor publicly had defended the purely personal e-mail com- nondisclosure of employee. integrity manager juvenile of the edu- by public a officer or munication Instead, training cation and court. As a result of the adoption the AP seeks of the minor- conduct, county by prosecutor’s in Cowles Cowles stated ity position taken the court “[wjhether supervisor did so County Board that he as her Publishing Co. v. Kootenai Commissioners, defending job performance, her or whether County 144 Idaho (2007). alleged inappropriate decision in Cowles he did so because of an P.3d 896 The Cowles, by newspaper pub- relationship public is a concern.” request a a local involved Further, held that seeking correspon- e-mail 159 P.3d at 900. Cowles access to lisher manager juvenile simply edu- is not the fact that the emails “[i]t between a dence employees training supervisor, her were sent and received while the and court and cation public ... them a county prosecutor. At the time of the were at work makes Rather, legiti- record. it is their relation to highly publicized administrative request, a involving public pub- fi- mate interest that makes them a investigation taking place, was Cowles, juvenile record.” 159 P.3d at 901. discrepancies in the edu- lic nancial court, al- training as well as an cation and proceeding, In the instant the trial court relationship between the leged intimate by adopted position taken the court county manager juve- prosecutor and the rejected majority position. Cowles and The trial training education and court. nile here, below, AP as it did The contends public that the e-mails were rec- court found public is Idaho’s definition of a record consis case and ordered their disclosure. The ords public FOIA definition of a tent with our appealed to the Idaho Court. was simply wrong. record. The AP is Idaho’s provi high public definition of record contains a inquiry The made court initial to,” sion, not found of whether the “but is not limited in Cowleswas a determination provi FOIA definition.15 The Idaho public a record under our e-mails constituted sion, to,” permits limited disclo opinion Act. The set “but is not Idaho’s Public Records any writing, even if it sure of does statutory definition of a out public’s involve “the conduct of the business.” follows: rec expansive Idaho’s definition “includes, A but is not public record Legislature simply goes beyond what our ord to, any writing containing informa- limited reach our FOIA defi permitted. has The relating tion to the conduct or administra- to docu a record is limited nition of prepared, tion of the business “the conduct of the ments that relate to owned, agen- retained state used or public’s business.” body corporate cy, independent public physi- politic agency regardless of or local majority position on e-mail believe the We cal form or characteristics.” employ- by public officials or communication added). definition of Cowles, with our FOIA (emphasis ees is consistent 159 P.3d at 900 Therefore, that a public record. we hold because of the high court held that to,” Virginia “public under the West under the record” language, “but is not limited (FOIA) record, de- Act “other Freedom of Information statutory definition of containing any writing “inelud[ing] writings may qualify even if fined as records and 140/2(c) (2002); Ann. phrase § Or. Rev. Stat. Only 15. two other states use a similar (2005). 192.410(4) § FOIA definition of "but is not limited to" their Comp. Ill. Stat. Ann. record. See 5 agency employee’s information to the conduct of the such eases an creation business, prepared, owned and re- of a document can be to an attributed public body.” tained W. Va.Code depending agency purpose on the 29B-l-2(4) 2007). (1977) (Repl. Vol. Un- created, which the document actu- language der document, the clear record” al use extent definition, e-mail communication which creator of the document employee, official or which employees acting scope other within the not of the does relate to the conduct employment their upon relied the docu- business, subject is not a record to carry ment to out the business disclosure under FOIA. Thus, agency. plaintiffs] suggested [the resources, employing agency test holding Our is with decisions consistent alone, standing is sufficient to render federal in courts federal FOIA cases. See record,” “agency an document is inconsis- Farley, 215 W.Va. at 599 S.E.2d at 843 governing precedent. tent with (“Previously to we have looked federal FOIA district, On the facts before the guidance interpreting cases for the court at West Act.”). summary Virginia judgment, Freedom of Al- we reach the same Information though conclusion that court did. we have been unable to find The ... letters “personal were records” [the federal court that has addressed the issue Board n member], e-mails, facing “agency this Court in and not within the context of records” meaning Nothing of the FOIA. in the specific federal courts have addressed private record here issue of whether indicates that Board [the documents created government employee correspondence member] created the with official or were subject anything other than purely personal to disclosure FOIA. A under federal objective retaining point job. case on her actual Gallant v. National Labor The Board, (D.C.Cir.1994). correspondence, use of the Relations 26 F.3d and Board [the employees’ member] and other of reli- lack Gallant, In a member of the National La- correspondence carry ance on to out (hereinafter bor Relations Board “the agency, supports the business of the also Board”) sent letters and faxes number of finding the district court’s docu- that the attempt reap- individuals her to secure records____ agency ments were not pointment plaintiff the Board. The (internal Gallant, quota- 26 F.3d at 171-72 sought disclosure Gallant of those documents omitted). tion marks and citations under the federal The district FOIA. court request denied the ground on the that the similar, relatively another and recent documents, private letters and faxes were not case, Bloomberg, L.P. v. United States Secu records,” i.e., “agency public documents. Commission, Exchange rities and plaintiff appealed. The Ap- The Court of (D.D.C.2004), F.Supp.2d compa a media peals agreed with the court district based L.P., ny, Bloomberg, filed an in a action upon following reasoning: seeking federal district court disclosure While [FOIA] itself does not indicate the certain documents from the office types of “agency documents that constitute United States Exchange Securities and Com Act, meaning records” within the (hereinafter SEC”). mission “the Specifical ease law “agen- makes clear that the term ly, plaintiff sought the SEC chairman’s cy records” is not so as to broad include calendar, telephone logs, telephone and mes personal employee’s pos- materials in an sage slips, as well as notes the chairman’s session, though even the materials chief of staff. district court held all physically agency____ located at the sought personal documents disclosure agency as under FOIA. The federal district court ad

... [I]n eases ... where documents are request dressed the for each document created an agency employee and locat- follows: ed agency, within the the document use of

becomes more important determining Bloomberg argues that Chairman Pitt’s the status of the under “agency document FOIA. In is an calendar record” Bloomberg argues logs requirements because un- because the disclosure totality using ... were maintained in electronic form of the circumstances der the by agency per- computer hardware and software and were calendar was relied on every thirty days, they agen- archived were inte- integrated into the sonnel and grated agency record-keeping sys- into the cy’s system when it was maintained Moreover, Bloomberg system backed-up tem. asserts that computer on the thirty-days logs agency-related server. The because the contain every on the and, following disagrees for the rea- business and the Chairman’s assistant and Court sons, Deputy Chief of Staff had access to the finds that Chairman Pitt’s calendar logs, agency records under personal record---- FOIA____ reasons, following For the First, only Chairman Pitt’s ... Bloomberg’s arguments unper- Court finds Staff, assistant, Deputy Chief of his suasive, and concludes much like calendar, and Chief of Staff accessed the calendar, telephone Chairman Pitt’s availability. only his then to determine logs personal are records. Second, ... Pitt’s calendar was Chairman First, logs were created and main- use, personal his own not for created for him of tained to remind calls to make or purpose creating an official record of return, and did not serve as an official Furthermore, that the calen- his schedule. Second, telephone record his calls. personal dar both and business includes calendar, only was the case with his appointments preclude finding not does Chairman’s assistant and his two most sen- personal is a record. that the document telephone logs. ior staff had access to the Finally, Bloomberg argued has that be- There is no indication that these individu- maintained on the cause the calendar was telephone log any sig- als relied on the computer system backed-up and agency way nificant in the course of their duties. every thirty days, inte- the calendar was Third, log was maintained elec- system. grated agency into the record tronically agency’s computer system on the However, previ- ... the D.C. Circuit has noted____ dispositive-as previously is not ously agency employing held that re- Accordingly, Court finds that the total- sources, alone, standing not sufficient to ity support finding of the circumstances agency record. Ac- render a document an telephone logs that Chairman Pitt’s are cordingly, Court not find that the does personal subject records that are not to fact that the calendar was maintained on jurisdiction Court’s under FOIA. agency computer system establishes integrated agency’s it into the [telephone ... The SEC has withheld records. personal message slips] as records and The Court thus finds that Chairman logs messages describes them as and main- “agency calendar is not an record” Pitt’s personal tained for use [the Chairman’s] jurisdiction under to the Court’s convenience, so that he could ensure FOIA.... (whether responded any call that he related)____

family, social or business Bloomberg argues message telephone logs Pitt’s ... have Chairman slips “agency records” under FOIA are personal withheld the SEC as been they created or maintained because were SEC, According records. the tele- they “entirely resources” and [SEC] with phone logs were maintained the Chair- agency contained information related convenience, personal to remind him man’s business.... returned, or of of calls that had not been daily wanted make. The calls that he

message logs ... Court finds that the books of [T]he included numerous records family telephone message slips and the individual personal of calls from members and message slip “agency not records.” range friends on of issues unrelated to are [SEC]____ only for These documents were intended the business of the 724 personal

Chairman Pitt’s use and were not the Court concludes that Mark Radke’s anyone other than him circulated to April notes of the [meeting] assistant, Moreover, his who wrote them. “agency juris- not records” to its kept agency with official diction under FOIA. records.... (internal Bloomberg, F.Supp.2d at 164-67 omitted). quotations and citations See also final document withheld the SEC York, Sibille v. Federal Reserve Bank Newof as a ... notes of [are] (handwritten (S.D.N.Y.1991) F.Supp. Radke, Mai’k Chairman Pitt’s Chief of meetings telephone notes of conversa- Staff, regarding April meeting FOIA). agency tions were not records under O’Kelly, Eugene with Chief Executive of KPMG. Radke attests that these were holding In view of our the instant “personal ease, during authorities, notes” he took the meet- foregoing and the we con ing, and that the notes were not circulated clude that none of the thirteen e-mails at anyone in the Office of the Chairman or issue herein constituted a record un kept otherwise. The notes were with his der FOIA. None of the e-mail’s contents private files his office and no one else duties, involved the responsibilities official them____ had access to obligations duly- of Justice aas response, Bloomberg argues that the elected member of this Court. Twelve of the by notes were created simply provided Radke in the course e-mails pri URL16 links to of his official duties as Chief of Staff and vately-operated internet websites that car they appear only to be the record of Chair- ried Maynard news articles Justice believed man Pitt’s conversation with the head of Blankenship Mr. would be interested in read ..., accounting firm [the] which ing. Bloom- All twelve of the news articles were berg subject asserts was the of considera- by private written already entities and were sum, press coverage. ble In it is Bloom- public in the domain. The thirteenth e-mail berg’s contention that disclosure of the nothing did provide more than Mr. Blanken notes of Chairman meeting Pitt’s with Mr. ship with agenda meeting the for a being O’Kelly undoubtedly would open serve to by private held organization. Consequents a agency light public action to the scruti- ly, logic dictates that we conclude that not ny. one of the thirteen e-mails was related in

Bloomberg’s arguments regarding the manner to either public the conduct of the public business, interest in sidestep duties, these notes the or to the responsibil official primary issue obligations before the Courtwhether particular ities or public the are, fact, such “agency instance, public of the interest con records because Court, they sought. requests AP appeal in The AP On to this

text which were analysis adopt of that we also a context driven argued has further that a determination public records to determine whether e-mails whether the e-mails are However, disclosed. we are not require also an examination of the should be should persuaded by either the AP or the circuit public interest “context” in which were context as a sought. regard, the AP asserts that court’s reliance on a document’s status period e-mails covered a when there was determinative factor document’s conclude, instead, relationship public a record and gréat public interest in the be- by Blankenship, approach, which is dictated our tween Justice and Mr. better statutory by majority a of and national law and followed as well as “enormous statewide [solely] a con- public judicial proee- “[o]ther [that]18 use[s] in our recusal states interest” public activity ing of upon a context-driv- whether to disclose records 17. The trial court’s reliance officers); police logs payroll analysis adopted and time sheets of due to the fact that it en analytical 286, Bradley, by W.Va. 673 S.E.2d 500 upon the Idaho Smith v. 223 framework relied (2007) is, (allowing public be a factor in interest to in Court in Cowles. That the court per- deciding public whether to disclose record applied analysis a Cowles context-driven of-student, formance evaluations in the form reaching its decision. evaluations); City peer, chair v. Manns of Nevertheless, permit 18. our cases do a "context- Dep’t., 209 W.Va. 550 Charleston Police are, fact, analysis writings (2001) driven" (allowing public to be S.E.2d 598 interest for records, public specifically exempt- but which are deciding public a factor in whether to disclose by W. regarding police depart- ed from disclosure FOIA. See Va.Code outcome of (2009) (setting (Supp.2009) § every 29B-1-4 out investigations officer ment’s internal However, exemptions). complaint we have never against FOIA’s had whom civil or criminal filed); Merritt, analysis appropriate held that a context-driven W.Va. been Robinson v. 180 (1988) deciding (allowing public whether a document 204 interest 375 S.E.2d public deciding deemed a record in the first whether to disclose should be to be a factor in See, e.g., compensation public contain- In re workers’ records information, instance. Charleston Gazette (2008) names, addresses, employer Request, ing 222 S.E.2d 776 W.Va. 671 regarding type injuries (allowing public sustained a factor in decid- information interest to be Meadows, analysis determining 20, 24, tent-driven Frazier v. whether 193 W.Va. Pulaski, public (“Courts (1994) a document is a record.” 260 S.E.2d not free to Griffis, at 722. S.W.3d Accord 156 P.3d at there, language read into the what is not but (“Determining a document’s status ... written.”). apply rather should the statute as Denver, requires inquiry.”); a content-driven If public FOIA’s definition of a record is to (“[T]he ‘public P.3d at 197 records’ defi include an examination of the record’s con- require[s] nition ... inquiry a content-driven text virtue of the interest in the ensuring the records disclosed ... were tied record, Legislature must add such lan- funds.”). public public functions or guage Legislature definition. The indicated, previously As POIA defines a Consequently, has not done so. we hold that public “any writing containing record as in a trial per- court’s determination of whether formation pub to the conduct of the. sonal e-mail public communication offi- business, prepared, lic’s owned and retained record, employee cial or is a public body.” § W. Va.Code 29B-1- Virginia disclosure under the West Freedom 2(4). expressly This definition neither nor Act, 29B-1-1, Information Va.Code W. implicitly makes a document a record séq., analysis et is restricted to an merely because of interest in the rec content of the e-mail and does not extend to engage ord. For this Court to the con analysis context-driven because analysis text-driven used the circuit court interest in the record. AP, urged by this Court would have to rewrite FOIA’s definition rec Accordingly, we find that the circuit court analysis. ord to include a context-driven in refusing eight was correct to release Simply put, liberty we are not at to rewrite e-mails,19 but committed ordering error in FOIA’s definition of a in disclosure of remaining the five e-mails. analysis. clude a context-driven We have held on a number of occasions that “[t]his IV. court ‘cannot [a] rewrite statute so as to provide interpret relief ... nor can we CONCLUSION statute in a manner inconsistent with the findWe that none of the thirteen e-mails plain meaning of the McVey words.’” v. sought by the AP Pritt, records under 537, 540-41, 218 W.Va. 625 S.E.2d (2005) Consequently, FOIA. we part affirm that (quoting 302-03 Young, v. VanKirk the trial (1988)). court’s order which denied AP 196, 198 180 W.Va. 375 S.E.2d e-mails, Friedman’s, Inc., eight access to Dunlap the but Accord v. reverse (2003) 841, part required W.Va. of the order which 582 S.E.2d disclo (“[T]his remaining Court sure of judg cannot substitute its own the five e-mails. This ease ment legislature for that of the signifi and is remanded to the trial court for further cantly statute.”); rewrite the disposition State ex rel. opinion.20 consistent with this workers); 7, 697, injured (2008) ("[T]his Group numerous Child Prot. 106 n. 662 S.E.2d 705 n. 7 Cline, (1986) v. 177 W.Va. 350 S.E.2d 541 may any in Court event affirm the circuit court (allowing public interest basis, to be a factor in decid- any proper upon by on relied whether the ing public employ- whether to disclose not.”); Murphy Smallridge, circuit court or v. Moreover, history). ee’s medical in we Cline 35, 36-37, 196 W.Va. 468 S.E.2d 168-69 analysis limited a as follows: context-driven (1996) ("An appellate court is not limited to the may pecuniary, "The interest be or the court, legal grounds upon by relied the circuit may legal rights have an interest because their may but it affirm or reverse a decision on any- liabilities are affected. It does not mean independently ground sufficient that has ade- Cline,

thing curiosity.” so narrow as mere quate support.”). W.Va. at 350 S.E.2d at 544. indicated, previously 20. As we as a result of the agree 19. We with the circuit court’s decision not upon circuit e-mails, court’s resolution of this case based eight to release disapprove the but relief, request injunctive the AP's for it did circuit court’s context-driven determination that eight declaratory have to the reach the AP’s claim for e-mails would have been ordered dis judgment. closed had Justice We leave for the had not recused circuit court to frpm extent, involving Massey Energy himself Company. cases any, determine on remand to what if the Helton, request declaratory judgment See Schmehl v. 222 W.Va. AP's for has merit Reversed, Part; ongoing Part; that there was an Affirmed, reflect relationship sitting Supreme between Remanded. corporate Justice and the chief officer

Court major litigant in a ease at a time when and reserves dissents Justice WORKMAN participating was in that case. the Justice dissenting opinion. right file a the to Q. infor- John Citizen is entitled to have that Justice, WORKMAN, part, concurring, in weight mation and to accord to it whatever dissenting, part: meaning appropriate. he deems (Filed 2009) Nov. Accordingly, respectfully I must dissent majority’s conclusions agree I with the majority’s conclusion that a deter from this extent: mination of whether an e-mail communication subject is a disclosure (1) may conduct an in camera A trial court analysis restricted to an of the content of subject request to a under review of records writing analysis and that such cannot be Act, of Information Virginia’s Freedom West Further, disagree I context-driven. with (2007 §§ to -7 Virginia Code 29B-1-1 West majority’s conclusion that the e-mails which (“FOIA”). Supp.2009) & strictly are the of this case were (2) disclo- “writings” E-mails are exempt personal and therefore from FOIA, used to under and FOIA sure it is accurate that disclosure. While ju- nonexempt “public records” of the obtain messages primarily substance of the dicial branch. nature,2 fact, very personal in it is that when (3) personal e-mail communication A juxtaposition viewed the context of the employee, does official or which Maynard’s position as a Justice public’s busi- not relate to the conduct participation his in the Court Justice with ness, (However, public record. is not a then-pending litigation involving Mr. Blank herein, fully agree I do not more set forth enship’s companies, which makes them rele majority’s conclusion that the mes- with public’s business. vant to the conduct of do not relate to the sages at issue in this case judicial The fact that a officer is a close business.) conduct litigant case he personal associate of a whose hearing is relevant information. (4) per se1 Campaign-related e-mails are not Background subject to disclosure. The Factual I. understand issues court released the five In order better But while the lower (albeit important role that before this Court and campaign-related e-mails reason, play in they public rec- context of a communication can wrong i.e. that were writing in- determining whether a contains campaign related to activi- ords because to the conduct of the majority held that none of formation that relates ty), and the has records, business, thorough descrip- I a more the thirteen e-mails background case is tion of the factual of this hold that all thirteen e-mails at issue would records,” majority provides no factual be- needed. The should be considered whatsoever, the casual relating background to the so that they cause contain information business, why might understand the con- on the reader never conduct of the based important in They text of the communications is so context in which were written. relating injunctive merits of a light disposition relief could be construed as to the in of our involving Blankenship Massey decision. and a case Mr. pending subsidiary, be- which was at that time computer, writing generated 1. A on a or Virginia. in West Because fore a circuit court prepared, owned and retained otherwise ultimately appealed court cases can circuit relating public body, provided information Supreme Appeals, com- an e-mail Court business, public's apart to the conduct of the arguably menting of such a case on the merits campaign, would be a from the conduct of May- to Justice contains information public record. business, public's based on nard’s conduct of the content alone. released the circuit court 2. One of the e-mails Maynard that contained a comment Justice resolving Caperton, whether these were in records. sion but while that ease was majority All the tells us pending. Mr. Blanken- (“CEO”) ship Chief is the Executive Officer surfaced, Shortly photos after Massey Energy Corporation, only but with Caperton Plaintiffs in asking filed motions information, might one be left to wonder Maynard Justice to recuse himself from that why relationship Maynard his with Justice or case. The AP request filed its first FOIA on their communications would be of interest to 16, 2008, January while that motion to recuse (“AP”) general the Associated Press or to the pending. Maynard was Justice then official Virginia. of the State of West That ly pending Massey recused himself from all background meaningful is essential to a ex- 18, 24, January cases on January 2008.4 On legal amination of this issue. 2008, Court, Maynard’s without Justice participation, granted petitions the Plaintiffs’ early In the AP submitted two re rehearing Caperton for in and vacated its quests pursuant Virginia’s to West FOIA to November 2007 decision.5 Canterbury, Steven D. the Administrative After AP submitted the first of its Virginia Supreme Director of the West Court 16, 2008, requests FOIA January on Mr. Appeals. requests sought variety Both Canterbury information, released certain documents, but including reflecting refused to release thirteen e-mails that had communications between Justice Elliot E. Maynard been sent Justice to Mr. Blank- Maynard and Donald L. Blankenship. At enship Maynard’s from Justice official Su- requests, time of the AP’s appeal preme Appeals Court of e-mail address. The civil in approximately verdict the amount of AP then request made its second on Febru- against Massey million Energy Compa $50 29, 2008, ary Canterbury and Mr. again re- ny, Caperton Massey v. A.T. Company, Coal Inc., fused to disclose the e-mails. The thirteen e- (2009), 225 W.Va. 690 S.E.2d 322 at two-year mails issue had been sent over a pending was before this Court. Mr. Blank period, January time from through enship, No- as the Chairman and Massey CEO of times, vember 2007. Caper- At all relevant Energy Company,3 obviously closely was con pending ton was before the Court in some corporate nected to the entity defendant in form. that suit. addition, In throughout the fall of 2007 and requests, Prior to the AP’s FOIA on No- winter of Maynard Justice was in the 20, 2007, Court, vember with Justice midst of a re-election campaign, seeking to Maynard voting in majority, had issued secure another term on Virginia the West case, its first in Caperton decision revers- Appeals.6 Court of It is under these ing the million against Massey verdict $50 circumstances that AP made its a 3-2 vote. On December following request. them, against

the verdict the Plaintiffs in II. Discussion Caperton petitions rehearing. filed While petitions pending, those early outset, Janu- At the an examination of West ary photos showing surfaced Virginia’s Justice FOIA statute pro- order. It Blankenship together and Mr. “[ejvery person vides that right has a Carlo, Monaco, Monte during inspect copy the summer of any public record of a state____” prior 2006—thus original body Court’s deci- W. Va.Code 29B- Inc., Massey Company, 3. A.T. Coal and remanded. The case was heard for a third Massey Energy Company. renamed September time in and the Court issued its 12, 2009, again third decision on November rul- 4. At the request, Massey time of the AP's FOIA ing Massey, by favor of but this time a 4- vote of Energy Company party was a to several other 1. Court, pending cases also involved worker’s in this most of which compensation claims. 6.By September when the Circuit Court of 5. Caper- The Court issued its second decision in County, Virginia, finally Kanawha West ruled on April again ton on Massey. sion, voting 3-2 in favor of request, the AP’s FOIA Justice had lost appealed After the Plaintiffs that deci- his bid for re-election. Supreme the United States Court reversed added). alone 1-3(1) of the The cases cited hold that these factors The focus (emphasis decision, I my disagreement not make a document a record. do majority’s therewith, “pub- true agree on the definition of that the same is under West centers Virginia Code 29B-1- Virginia’s FOIA. lic record.” West 2(4) “any “public record” as writ- defines a cited, However, every in each and case relating to the containing information ing lengthy, fact-specific is either a discus- there business, prepared, public’s conduct why at sion as to the documents issue are body.” by public No- and retained owned nature, personal to be determined language of the tably, nothing plain in the exempt thus from disclosure under that considering from prevents a court statute FOIA, or the case is remanded to a state’s in which a document is written the “context” analysis. lower court for such In Pulaski “contains determining whether it informa- Democrat-Gazette, Inc., County v. Arkansas relating to the conduct of the tion (2007), 370 Ark. 260 S.W.3d 718 for business.” example, Arkansas Court of policy” explaining of In its “declaration “[cjomparing that the nature and concluded enacting the FOIA on which it was principles purpose document with an or of a official’s law, Legislature persons that “all stated agency’s to determine whether the activities complete informa- ... entitled to full and are required necessarily requires a nexus exists government and regarding the affairs of tion fact-specific inquiry.” (emphasis Id. at 724 represent of who them the official acts those added). Moreover, recognized it that while employees.” Id. at public officials and personal official are not disclosed, Indeed, brief, "the must relate to reply AP to be the records in its the instant case. specifically Canterbury’s public's conduct of business.” Mr. asser- the disavowed

730 stead, they simply conclusory writing make a state- that gener- the context which a at in the ment that all the e-mails issue ated is relevant to whether it be consid- instant,ease nature, personal case, county without In ered a record. attempting to discuss whether an e-mail be- prosecutor exchanged had e-mails with the sitting Supreme tween a Court Justice and manager juvenile training of a education and pend- corporate litigant court, the CEO of a with a supervised who he and with whom he ing ease worth over million creates such romantically $50 involved. Id. at 898. After a substantial nexus or has other demon- emerged involving a scandal the official pub- strable connection to the conduct manager, prosecutor public- duties of the the lic’sbusiness. ly Determining defended her actions. Id. personal the e-mails between the two equally unpersuaded majori I am the to disclosure under that state’s cases, ty’s reliance on two federal FOIA Gal FOIA, Supreme Court of Idaho stated: Board, lant v. National Labor Relations legitimate has a interest (D.C.Cir.1994), Bloomberg, F.3d and L.P. these communications between this elected Exchange v. United States Securities and (D.D.C. employee official whom Commission, he hired F.Supp.2d supervised 2004). because when the JET eases, In reviewing each of those problems Court’s financial and eventual interpreted “agency court the term records” apparent demise became public, under the federal Freedom of Information Douglas management defended Kalani’s Act, §§ Unquestion 5 U.S.C. 551 to 559. public. both the Boai’d and the Whether ably, “agency the determination of an rec supervisor defending he did so as her her ord” under the federal FOIA bears little job performance, or whether he did so “public relation to what constitutes a record” alleged because of an inappropriate rela- Virginia’s under West FOIA. Because the tionship is a concern. Put another “agency federal statute does not define rec way, Douglas’s defending ord,” reasons Ka- Supreme the United States Court has lani relate to the conduct and administra- looked to the agency definition of set public’s tion Act, business. Disposal forth in the Records 44 U.S.C. § “agency which indicates that rec added). Thus, (emphasis Id. at 900 the con- ords” must be made “under Federal law or relationship text of the prosecu- between the in connection mth the transaction manager tor and the transformed communi- Dept. business.” U.S. Justice v. Tax Ana cations which would otherwise have been lysts, 492 U.S. 109 S.Ct. 106 strictly nature into communica- (1989). L.Ed.2d relating tions public’s to the conduct of the business. Requiring that a record be made “in con- Cowles,

nection with the transaction of distinguish majority busi- To relies ness,” significantly scope narrows of what on a language difference our record,” “agency constitutes an compared statute and the found in one Idaho. In Ida- Virginia’s statutory requirement ‘includes, West ho “[a] but is not to, simply document must any writing relate to the con- limited containing information duct of the relating business. Because West to the conduct or administration of Virginia’s “public sig- owned, definition of record” is prepared, business used nificantly definition, broader than the by any federal agency, independent retained state analysis I find the of the federal public body politic statute corporate and or local unhelpful misleading in the agency context of regardless physical form or charac- ” the instant ease. (quoting teristics.’ Id. at 900 Idaho Code 9-337(13)).

Furthermore, majority rejects the rea- soning Publishing in Cowles Co. v. County Kootenai As the Circuit Court of Kanawha County Commissioners, case, County Board noted in the instant Idaho’s definition of (2007), 144 Idaho “public closely 159 P.3d 896 which I Virgi- record” mirrors West persuasive find in the instant case. nia’s definition. Both define record” Cowles, Court writing containing of Idaho held as a information business, that the context in which a public’s which document is the conduct of the owned, provide retained a prepared, used or written can both information and is Indeed, only body. designation the difference public implicate public its as a record. Indeed, Idaho’s any significance to this case is that majority the limits its discussion of not limited to” definition includes the “but public’s “context” to whether or not the in majority in, reasons that provision. with, terest fascination issue should any “permits the disclosure of writ- provision determining be considered its status as a ing, if it does not involve ‘the conduct even question, agree On this I public record.8 ” public’s the business.’ majority public’s personal with the that the thereof, curiosity, particular or lack in a writ majority recognize, fails to how- What the ing should not influence whether the docu ever, Cowles, the “but not limited is public Virginia’s ment is a record. West completely provision of Idaho’s FOIA was to” contemplate FOIA does not such consider Supreme Court’s decision. irrelevant ation, public I policy and find no reasonable scheme, Explaining statutory the Idaho its including basis for such consideration. That that Supreme Court stated public may a curious be interested in the if it is a public a record be a public private of a life details official’s does (1) wilting that contains information relat- writings revealing aspects not mean that of the ing to the conduct or administration private equated such life can be to “informa (2) business, prepared, public’s and relating public’s tion to the conduct owned, by governmental used or retained fact, completely personal business.” In e However, legislature has agency. our Thus, I mails are not accessible under FOIA. records; broadly other rec- defined agree majority with that the may qualify they if writings ords and even interest, purely personal curiosity, in a i.e. definition. do not meet this particular issue is not relevant to a court’s (internal omitted). citation 159 P.3d at 900 particular determination of whether a docu reviewing writings In at issue in that ment is a record. ease, however, Supreme the Idaho Court con- B. The Role of Context cluded “it is clear that the emails contain information to the conduct and ad- ways Two in which a consideration of “con- business,” and ministration of the relevant, only necessary, to a text” is not but owned, prepared, that used immediately come to FOIA determination public body. Id. at 900-01. The “but not First, necessarily must be mind. context phrase limited contained within Idaho’s to” meaning writing considered where the of a analyzing statute was not discussed in example, apparent not on its face. For con- completely and thus was irrelevant case judge hypothetical sider a e-mail from a to a way, even the court’s decision. Put another personal simply states: “Go friend not if Idaho’s statute did not contain “but the boat.” A consideration of ahead and rent provision, reasoning limited to” that e-mail was written the context which not have been Idaho Court would necessary it to determine whether contains Consequently, I affected in Cowles. cannot relating to conduct of the information “the majority agree with the the “but not judge If and the re- public’s business.” provision distinguishes limited to” basis discussing cipient merely of that e-mail are holding for the in Cowles. adventure, the friend planned weekend conclusion, majority’s pend- to the court or reaching its has no connection cases, clearly opinion ignores ways ing personal the e-mail is completely the various (9th distinguish "pub- Dictionary important Blacks Law ed. 8. It is between the stake.” 2009). public may very “the As used example, lic’s interest" and by interest." For “public’s majority, interest" refers "interested” in the fashion choices or population’s curiosity or fascination with an official, habits of an elected but such matters are aspect person, issue or such as interest in some something as a whole has which the public figure’s personal life. "The stake, relate to "the and thus do not interest,” hand, "[sjome- on the other refers to interest.” thing in which the as a whole has a Amendment, relating only does not contain information to the a court must consider not such, public’s speech, conduct of the business. As it the content of that but the in context subject spoken. Myers, would not a which it is Connick v. be record nor to 138, 145-46, disclosure under U.S. 103 S.Ct. FOIA. L.Ed.2d (1983). Specifically, in addressing this If, however, judge hypotheti- the sent the issue, stated, Supreme the Court has personal hap- cal e-mail to a friend who also “[wjhether employee’s speech addresses a pened judge plan to be hired the to matter of concern must be determined retreat, court being and the boat was rented content, form, given the and context of a funds, purpose using public for that such statement, as the whole record.” revealed statement does relate to conduct of the added). (emphasis Id. at 147-48 public’s Specifically, business. the context in Although “public the test for record” un- which the e-mail was sent reveals that it Virginia’s obviously der West is not relates to official court business and involves particular identical to the test for whether such, expenditure funds. As it concern,” speech “public par- relates to a would be considered a and be cases, allels are In clear. both a court is subject to disclosure under FOIA. attempting to discern whether a communica- example, meaning In this of the con- private tion relates to a matter. depends tent of understanding the e-mail on Like a determination particular of whether the circumstances in which it was written. speech concern,” “public addresses a I be- Thus, “context” can be central to determin- lieve that a determination par- of whether a ing whether content relates to “the con- writing ticular “relates to the conduct of the public’s duct of the business.” public’s business” must also include a consid- Second, the in context which a document is eration of the context in which the communi- itself, provide, written can in and of informa cation is made. tion relating public’s to the conduct of the explain To better how the context in which May business. The mere fact that Justice writing was created can determine whether Blankenship nard and Mr. exchanged e-mails it public’s relates to the conduct of the busi- (the nothing content of which had to do with ness, my I hypothetical return to earlier pending the ease then Supreme before the example. Assume that the e-mail sent from Appeals) Court virtually demonstrates friend, judge to his which stated nothing solely by when examined their literal boat,” simply, “Go ahead and rent content.9 But garner can from the merely in planned reference to a weekend context of the e-mails that the two are adventure. Further per- assume that friends. That information is relevant under happens sonal friend party also to be a liti- the circumstances of their roles as Justice gant pending in a judge. case before the In litigant, and thus such information scenario, e-mail, such the content of the tak- should be to disclosure as a alone, provide en does not information relat- record.10 ing business; to the conduct of the it By way analogy, merely provides well-settled law relating information to the area speech rights provides sup- of free plans weekend between friends. Neverthe- port proposition. less, for this Specifically, the the context in which that e-mail was written, United States recognized Court has judge party litigant, pro- vides, in determining particular speech— itself, if and of information spoken whether aloud or in written judge’s form— conduct of the business. concern,” relates to a and thus is It judge indicates to the reader that the protections party under the First a relationship have of such a na- fact, exception 9. with any judgment Maynard the one described to whether Justice 2, supra, basically note the e-mails are innocu- any way improperly regard acted with to con- ous. tinuing Massey during to sit on the case the time e-mails. That is not the issue before this Maynard clearly right 10. person- Justice has a Court. associates, nothing al opinion in this makes pending unrelated to matters before this spend a weekend to- they would ture that Court, clearly relationship relationship does not relevant such gether. While judge will between Justice and Mr. Blanken necessarily indicate ship. relationship that was the ba decisions or rule Because judicial or her biased his recusal, manner, relationship fact that the sis of a motion for unjust the mere in an Maynard’s was itself related to Justice con information” relat- was sent “contains e-mail of his or her duct of the business.11 judge’s performance ing to the public duties. in which the e-mails Because of the context sent, hand, sitting light in this were and in of the Justice on the ease

In the case at a Virgi Appeals legislative expressed intent in West Virginia Supreme Court of West statute, reg- nia’s FOIA as well as extensive ease e-mail on somewhat communicated indicating the Chair- law from this Court that our stat with a friend who was ular basis interpretation in litigant given a ease ute is to be a liberal party of a with man and CEO public’s right favor of the to access to inform excep- one pending before the Court. With ation,12 tion, did I would hold that all thirteen of the content of those e-mails the literal records, public at issue because relating information to the con- e-mails not contain relating contained information to the public The fact that those duct of business. however, sent, simply, contain conduct of the business. Put had been did e-mails foremost, communicates, justice judge it when a or via a information. First and relevant prepared, record that is owned and retained personal relation- discloses the existence (or body, litigant sitting public party a CEO of with a ship Justice and between therewith) addition, closely when the AP someone connected while party litigant. In party’s pending that case is before that request, FOIA a motion filed made its first judge, necessarily communication con Caperton seeking Justice such by the Plaintiffs judge was tains information that relates to that Maynard’s pend- recusal from that case justice’s public of the business to the was his conduct ing, the basis of which extent that it reveals the nature of the rela relationship Blankenship. with Mr. The fact sent, tionship between the two.13 the e-mails were albeit on issues that acknowledged disclo '[t]he the im- 12. "We have ... made clear 11.The circuit court provisions In portance of this State’s Freedom of the fact that these e-mails were sent sure of Act, Va.Code, seq., sitting justice party and a CEO of a W. 29B-1-1 et between a formation amended, construed, litigant, liberally when it stated: and the are to be strictly exemptions con to such Act to be important May- that had Justice It is to note Va.Code, Sylla [1977].’ W. 29B-1-1 strued. Caperton from the nard not recused himself Casey, 175 W.Va. bus Point Hechler v. case, involving Massey, other cases these (1985). Daily See also 333 S.E.2d 799 Gazette placed pub- have been into the e-mails would Co., Office, Development v. W. Inc. Va. by Caperton’s Motion to Recuse lic’s business 563, 574, (1996) S.E.2d W.Va. photographs and the release of ('WVFOIA fully and com ... was enacted to Blankenship. Maynard Be- Justice and Don 'regarding pletely the affairs inform the within the e- cause the information contained government the official acts of those light would have shed on mail communications represent officials and who them as relationship Maynard’s of Justice the extent Va.Code, [1977], in employees.’ W. 29B-1-1 Blankenship and whether or not that with Don Virgi part.’); AT & T Communications West relationship may influenced have affected or nia, Virgi v. Public Serv. Comm'n West Inc. decision-making Massey Maynard’s Justice nia, 423 S.E.2d 188 W.Va. cases, public would have been entitled to (1992) (’The general policy act is [FOIA] of the that information. possible many public court, however, records as to allow as disagree I with the circuit omitted).’’ public.’Xfootnote be available to the public records because Jus- the e-mails were not Request, 222 FOIA W.Va. In re Charleston Massey Gazette Maynard from tice had recused himself 771, 778-79, (2008) 671 S.E.2d 783-84 request e- when the was made. When the cases (footnote omitted). sent, pending, Caperton was and Jus- mails were participating in the decision. tice Importantly, of such com- 13. the mere existence writing made that It is the context in which the improper way munication in no indicates that whether the document con- should determine judge relationship and the between the pub- existed to the conduct of tains information business, recipient, commu- subsequent nor does the existence of such lic not some action judge’s necessarily re- nication indicate that author. mandatory Aside from disclosure under be considered when determining writing if a statute,14 I Virginia’s West additionally is a record.” believe that such communications should be III. Conclusion disclosure to ensure the light majority’s decision that legitimacy legal process. As the Com consideration of whether a document consti- mentary to 1 of Canon the Code of Judicial “[djeference states, tutes a record is limited to the content Conduct judg document, found in the four corners of rulings depends upon ments and courts Legislature integrity confidence in should amending and inde consider pendence judges.” clarify To maintain the the statute to the context necessary legitima confidence to sustain the which may the communication was made also cy judiciary, disclose, judges of the must legislative be considered. This change is FOIA, requested when under their communi sorely needed if our State is to continue party litigants. cations with Such disclosure developing body a vivacious regarding law may required despite the fact that right to full information. literal content of such communications herein, For the reasons stated respectful- I directly pending relate to the case or concur, dissent, ly part, part. business, other conduct of inas this Consequently, given case. significant these concerns,

public policy light and in

statutory requirement Virginia’s that West construed,” “liberally

FOIA be I would hold

that the context in which a document is writ

ten can “contain information business,”

conduct of the and should Rather, appropriate. However, cusal was or was not privacy!.]” it reasonable invasion of Id. merely contains information that relates to the writing personal even when a of a nature could business, and, such, conduct of the privacy,” constitute "an unreasonable invasion of subject Virginia’s to disclosure under West FOIA subject it is still to disclosure if "the statute. convincing interest clear and evidence re- quires particular disclosure instance!.]” statute, Virginia’s 14. Under West FOIA once a Importantly, exemptions strictly Id. are to be record,” writing "public is determined to abe it against construed non-disclosure. In re Charles- to disclosure unless it falls under one Request, ton at Gazette W.Va. eight exemptions. § of Only W. Va.Code 29B-1-4. S.E.2d at 783. For the reasons discussed exemptions, one of these for "information throughout opinion, I would find that the e- nature, personal kept such as that in a case, constituting mails in this while information personal, file,” medical or similar could be of nature, personal exempted 29B-l-4(2). would not be relevance here. at Id. In the disclosure, from because the "public event that interest record” includes docu- nature, convincing requires ments of clear such those evidence disclo- documents are still disclosure unless "the sure in this instance. public disclosure thereof would constitute an un- notes body, records” which was in this Justice that are require- Maynard. disclosure analysis, In the final if we ments of FOIA. The adopted Court concludes that position the AP’s that these e-mails they are records, not----The notes were public created constituted grocery then “a reference, Radke’s own were list government employee written while upon by work, not agency personnel, relied other at a communication to schedule a fami files, incorporated dinner, were agency ly not report a child’s card stored in a were agency’s not under the government control. desk drawer in employee’s of Even apparently Radke rely did not on fice would be to disclosure. [FOIA] these any purpose. notes for FOIA does was encompass never intended to such docu sweep not personal papers [its] into reach Griffis, ments[.]” 156 P.3d at 421. Accord employee’s relate to an ... City Taft, work Braun v. Cal.App.3d 154 (1984) (“ but which the rely upon individual Cal.Rptr. does not 201 658 ‘This defini perform his or Accordingly, her duties. public [of tion record] is intended to cover Evansville, 16. URL is the University "[a]bbreviation of Uniform Re- v. 755 N.E.2d Locator, (Ind.2001) (”[E]ach global source the page address of documents web is stored and ac- and other resources on separate unique the World Wide Web.” cessed as file located Webopedia Dictionary, http://www. Online address called a Uniform Resource Locator webopedia.com/term/u/url.html. (URL).”). See also Felsher sought the e-mails were in dures. Insofar as kind of record every conceivable there was during a time when interest process----Only governmental in the volved matters, position AP to ‘the in those takes information unrelated purely personal could be the e-mails became records for public’s business’ conduct definition, i.e., purposes exempt from this considered home, phoned from shopping list analysis This context-driven advocated from a friend which to a officer letter adopted the AP was the circuit court. governmental totally reference to void of order, held “that its the circuit court both ” v. (quoting San Tribune activities.’ Gabriel at and the con content of the e-mails issue Court, Cal.App.3d Superior they were are rele text under which created (Cal.Ct.App.1983))); Cal.Rptr. 415 Clear they vant to the determination of whether (“If water, Attorney So.2d at 154 contain information to the conduct brings his household bills to the General rendering business.”17 In lunch, during they do be office to work on ruling, the circuit court made two distinct temporarily puts if public record he come First, context-driven determinations. in his desk drawer? If a Senator them circuit found that five of the court e-mails speaking with a note to herself while writes they records because were creat phone on the does it her husband become ed interest context of Justice note public record because she used a state Second, Maynard’s campaign for re-election. secretary, proud pad pen? The Sheriffs the circuit court determined that because of children, Day brings her Mother’s of her relationship interest in the be to show her friends. Do cards the office Maynard Blankenship, tween Justice and Mr. keeps records if she them become remaining eight e-mails would have been cabinet?”). filing in the ordered disclosed had Justice involving Massey cases recused himself from were not 2. The e-mails Energy Company.

Notes

notes end, provisions § 29B-1-1. “To that “[tjhere Arkansas, usually “public records” construed____” liberally be this article shall instances, however, per- in which the Legislature should Id. This directive or em- sonal activities official lightly. not be taken ployee inextricably linked to his or her are directive, however, the Despite this clear (quoting governmental role.” Id. at majority the definition of construes Peltz, Richard J. The John J. Watkins & liberally, narrowly, by holding record” Act, 91 Arkansas Freedom of Information a court’s consideration of whether that (m 2004)) ed., Press, (empha- m 4th and 93 & writing public record is con- particular is a added). sis fined to the literal content of that document. Moreover, most of the eases cited construction, adopt a more liberal I would provide for ana majority also some standard recognizing that information to the writings might otherwise be con lyzing may be con- conduct of the business example, sidered in nature. For tained in the context in which a document writing look to whether the contained courts written, words of in addition to the actual “ ” governmental nexus’ ac a ‘substantial wilting. tivity, County, 215 Ariz. v. Pinal Griffis Majority’s Analysis A. The (2007), or whether the 156 P.3d majority support position, of its connection” documents had “a demonstrable jurisdictions many from other cites cases functions, performance Den country holding purely per around the County Publishing Company v. Board ver e-mails are not to disclosure. sonal County Arapahoe, 121 Commissioners of ease, seeking disclo Unlike the instant those (Colo.2005). 190, 192 P.3d primarily sure of records in the cited cases case, however, per- majority in rely should be our on the contention that records analysis it factual nor does fact that forms no such virtue of the analytical framework the-appropriate official on a discuss generated funds, writing relates to determining whether a paid by public gener for computer, In- public’s business. public place.7 the conduct of the during ated work hours at a effect, re-affirming position its AP in the tion to that 7. This is not the contention

Case Details

Case Name: Associated Press v. Canterbury

Court Name: West Virginia Supreme Court

Date Published: Nov 18, 2009

Citation: 688 S.E.2d 317

Docket Number: 34768

Court Abbreviation: W. Va.