| Rudolph L. DiTrapano Sean P. McGinley DiTrapano, Barrett & DiPiero Charleston, West Virginia |
Ancil G. Ramey William D. Wilmoth Steptoe & Johnson Charleston & Wheeling, West Virginia |
| Patrick C. McGinley Law Office of Patrick C. McGinley Morgantown, West Virginia Attorneys for Appellant |
Robert P. Fitzsimmons Fitzsimmons Law Offices Wheeling, West Virginia |
| Carte P. Goodwin Goodwin & Goodwin Charleston, West Virginia Attorney for Amicus, WV Judicial Assoc. |
Daniel J. Guida Law Office of Daniel J. Guida Weirton, West Virginia Attorneys for Appellee |
| Terris S. Baur ACLU of West Virginia Foundation Charleston, West Virginia Attorney for the Amici, The Reporters Committee for Freedom of the Press, ACLU of WV, Assoc. of Capitol Reports & Editors, The Radio & Television News Directors Assoc., The Society of Professional Journalists and WV Press Assoc. |
|
Davis, Justice:
The Associated Press, plaintiff below (hereinafter referred to as “the AP”),
appeals from an order of the Circuit Court of Kanawha County denying part of the AP's
request for injunctive relief against Steven D. Canterbury, Administrative Director of the
West Virginia Supreme Court of Appeals, defendant below (hereinafter referred to as “Mr.
Canterbury”). Specifically, the AP alleges the circuit court committed error in ordering Mr.
Canterbury to turn over only five of thirteen e-mail communications it sought under the West
Virginia Freedom of Information Act (hereinafter referred to as “FOIA”). (See footnote 1) Mr. Canterbury
has filed a cross-appeal alleging that the circuit court committed error in finding that five of
the thirteen e-mails were subject to disclosure under FOIA. After a thorough review of the
briefs and record, and having listened to the arguments of the parties, we affirm that part of
the circuit court's order which denied disclosure of eight of the e-mails. Additionally, we
reverse that part of the order which required disclosure of the remaining five e-mails. (See footnote 2) Finally, we remand this case to the trial court for further disposition consistent with this
opinion.
[u]nless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.
Syl. pt. 1, G Corp, Inc. v. MackJo, Inc., 195 W. Va. 752, 466 S.E.2d 820 (1995) (quoting Syl. pt. 11, Stuart v. Lake Washington Realty Corp, 141 W. Va. 627, 92 S.E.2d 891 (1956)). More specifically, we have held that,
[i]n reviewing the exceptions to the findings of fact and conclusions of law supporting the granting [or denial] of [an] . . . injunction, we will apply a three-pronged deferential standard of review. We review the final order granting [or denying] the . . . injunction and the ultimate disposition under an abuse of discretion standard, we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo.
Syl. pt. 1, State v. Imperial Mktg, 196 W. Va. 346, 472 S.E.2d 792 (1996). Accord Weaver
v. Ritchie, 197 W. Va. 690, 693, 478 S.E.2d 363, 366 (1996). With these standards in mind,
we turn to the merits of this case.
When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va. Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must produce a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va. Code, 29B-1-4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. The Vaughn index need not be so detailed that it compromises the privilege claimed. The public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt.
Syl. pt. 6, in part, Farley v. Worley, 215 W. Va. 412, 599 S.E.2d 835 (2004). The purpose
of the Vaughn index is “'to allow the courts to determine the validity of the Government's
claims without physically examining each document.'” Daily Gazette Co., Inc. v. West
Virginia Dev. Office, 198 W. Va. 563, 574, 482 S.E.2d 180, 191 (1996) (quoting Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)). In the
instant case, the record shows that Mr. Canterbury produced a Vaughn index for the trial
court.
Nevertheless, the trial court went beyond reliance on the Vaughn index to make
its decision. In this regard, the trial court required the actual production of the e-mails for
an in camera review. The trial court's order specifically noted that “[t]he Court is cognizant
that in other cases in camera review may be burdensome, in both time and cost, however,
given the definition of 'public record' and the facts of the case presented, the Court believes
in camera review of the e-mails was required in this case.”
The authority for the trial court's in camera review is found in W. Va. Code
§ 29B-1-5(2) (1977) (Repl. Vol. 2007). This statute states, in relevant part, that “[i]n any suit
filed under [FOIA], the court has jurisdiction to . . . order the production of any records
improperly withheld from the person seeking disclosure. . . . The court, on its own motion,
may view the documents in controversy in camera before reaching a decision[.]” In view of
the plain and unambiguous language of this statute, we now hold that, in a proceeding
seeking disclosure of public records under the West Virginia Freedom of Information Act,
W. Va. Code § 29B-1-1, et seq., a trial court may sua sponte order the production of the
records withheld and hold an in camera review of the records in order to decide whether any
of the records are subject to disclosure under the Act. W. Va. Code § 29B-1-5(2) (1977)
(Repl. Vol. 2007).
Although we acknowledge that a trial court has discretion to conduct an in
camera review of requested FOIA documents, a trial court should “not resort to in camera
review 'as a matter of course.'” United America Fin. Inc. v. Potter, 531 F. Supp. 2d 29, 40
n.3 (D.D.C. 2008). In other words,
a [trial] court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn. The [trial] court should first offer the agency the opportunity to demonstrate, through [a Vaughn index], detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.
Spirko v. United States Postal Service, 147 F.3d 992, 997 (D.C. Cir. 1998). See also Wick
Communications Co. v. Montrose County Bd. of County Comm'rs, 81 P.3d 360, 366 (Colo.
2003) (“As the requesting party in this case did not show that a personal diary was likely a
public record, the trial court is not authorized to conduct an in camera review of the
defendant's personal diary.”).
In the instant proceeding, the trial court held an evidentiary hearing prior to
requiring Mr. Canterbury to produce the thirteen e-mails for in camera review. Insofar as
the trial court articulated a valid reason for needing to actually review the e-mails, we find
that the trial court did not abuse its discretion in requiring Mr. Canterbury to produce the e-
mails for an in camera review.
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.
W. Va. Code § 29B-1-1 (1977) (Repl. Vol. 2007). This Court has held that “[t]he disclosure
provisions of this State's Freedom of Information Act, W. Va. Code, 29B-1-1 et seq., as
amended, are to be liberally construed, and the exemptions to such Act are to be strictly
construed. W. Va. Code, 29B-1-1 [1977].” Syl. pt. 4, Hechler v. Casey, 175 W. Va. 434, 333
S.E.2d 799 (1985).
W. Va. Code § 29B-1-3 (1992) (Repl. Vol. 2007) provides that “[e]very person
has a right to inspect or copy any public record of a public body in this state, except as
otherwise expressly provided by [§ 29B-1-4] of this article.” FOIA defines a “public body”
as
every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.
W. Va. Code § 29B-1-2(3) (1977) (Repl. Vol. 2007). It is clear that the definition of a
“public body” under FOIA includes the judicial branch of State government. (See footnote 10) See W. Va. Tr. Ct. R. 10.04(a) (“All persons are, unless otherwise expressly provided by law or
excepted by Rule 10.03, entitled to full and complete information regarding the operation and
affairs of the judicial system. Any elected or appointed official or other court employee
charged with administering the judicial system shall promptly respond to any request filed
pursuant to the West Virginia Freedom of Information Act.”); State ex rel. Wyant v.
Brotherton, 214 W. Va. 434, 440 n.13, 589 S.E.2d 812, 818 n.13 (2003) (“We recognize that
Rule 10.04 of the West Virginia Trial Court Rules permits access to court files and other
court records under the FOIA.”). Clearly, FOIA may be utilized to obtain nonexempt judicial
public records. (See footnote 11)
The AP makes essentially two arguments as to why the thirteen e-mails sent
by Justice Maynard to Mr. Blankenship are public records. First, the AP asserts that, under
FOIA's express definition of public records, the e-mails were public records. Alternatively,
the AP argues the e-mails became public records because of the public interest context in
which they were sought. (See footnote 12) We will address each issue separately.
1. The e-mails are not public records under FOIA's express definition of
a public record. FOIA “generally permits disclosure of information retained by government
agencies, i.e., public records.” Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 26(b)(1) (3d ed. 2008). (See footnote 13) A “public record” under FOIA is defined as “includ[ing] any writing containing information
relating to the conduct of the public's business, prepared, owned and retained by a public
body.” W. Va. Code § 29B-1-2(4). In order to fully consider the issues presented in the case
sub judice, however, we must further discern the meaning of two elements of this definition:
“writing” and “the public's business.”
First, a “writing” is defined by FOIA as “any books, maps, photographs, cards,
tapes, recordings or other documentary materials regardless of physical form or
characteristics.” W. Va. Code § 29B-1-2(5). It is clear from FOIA's definition of “writing”,
and we so hold, that the definition of a “writing” contained in W. Va. Code § 29B-1-2(5)
(1977) (Repl. Vol. 2007), of the West Virginia Freedom of Information Act includes an e-
mail communication. Accord Tiberino v. Spokane County, Office of the Prosecuting Attorney 13 P.3d 1104, 1108 (Wash. Ct. App. 2000) (“Ms. Tiberino does not dispute that the e-mail
records are writings and that they are prepared, owned, used or retained by a state agency.”).
Second, although FOIA does not define the phrase “the public's business,” it has been
correctly stated that “the phrase 'public business' is . . . commonly understood to mean the
business of the government.” O'Melia v. Lake Forest Symphony Ass'n, Inc., 708 N.E.2d
1263, 1265 (Ill. App. Ct. 1999). That is, “the words 'public business' . . . relate only to
matters within the purview of the agency's duties, functions and jurisdiction.” Lucarelli v.
Freedom of Information Comm'n, No. CV 91-0063707S, 1992 WL 209848, at *3
(Conn. Super. Ct. Aug. 18, 1992). See also Kansas City Star Co. v. Fulson, 859 S.W.2d 934,
940 (Mo. Ct. App. 1993) (“Public business encompasses those matters over which the public
governmental body has supervision, control, jurisdiction or advisory power.”).
Based upon the plain language of FOIA's definition of “public record,” we
find this definition to be free from ambiguity. See Ogden Newspapers, Inc. v. City of
Williamstown, 192 W. Va. 648, 650, 453 S.E.2d 631, 633 (1994) (“[W]e find the definition
of 'public record' in [FOIA] to be plain and unambiguous.”). Under that definition, an e-
mail communication or other writing is a public record only if it relates to the conduct of the
public's business, i.e., the official duties, responsibilities or obligations of a particular public
body.
Turning to the issue at hand, this Court has not previously decided whether a
personal e-mail communication by a public official or employee constitutes a public record
as defined under FOIA. However, the courts of other states have addressed the issue under
their respective FOIA statute or its equivalent. As illustrated below, the majority of courts have held that personal e-mail communication by a public official or employee does not
constitute a public record for purposes of disclosure under FOIA or its equivalent.
For example, the court in Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007),
addressed the issue of whether personal e-mails sent and received by a former county
manager were public documents. In Griffis, a local Arizona newspaper obtained a trial court
order requiring disclosure of e-mails sent and received by the former county manager during
a specific time period. The trial court did so on the grounds that “everything that is on a
computer of the Pinal County . . . governmental entity is presumed to be a public record and
that any records generated on a public computer are presumptively open to public
inspection.” Griffis, 156 P.3d at 420 (internal quotations omitted). The case ultimately
reached the Arizona Supreme Court. That court held that a purely personal e-mail
communication was not a public record subject to disclosure under that state's FOIA statute. Griffis reasoned as follows:
The public records law requires all public officials to
make and maintain records reasonably necessary to provide
knowledge of all activities they undertake in the furtherance of
their duties. That definition does not encompass documents of
a purely private or personal nature. Instead, only those
documents having a “substantial nexus” with a government
agency's activities qualify as public records. Determining a
document's status, therefore, requires a content-driven inquiry.
Because the nature and purpose of the document
determine its status, mere possession of a document by a public
officer or agency does not by itself make that document a public
record, nor does expenditure of public funds in creating the
document. To hold otherwise would create an absurd result:
Every note made on government-owned paper, located in a
government office, written with a government-owned pen, or
composed on a government-owned computer would presumably
be a public record. Under that analysis, a grocery list written by
a government employee while at work, a communication to
schedule a family dinner, or a child's report card stored in a desk
drawer in a government employee's office would be subject to
disclosure. The public records law was never intended to
encompass such documents; the purpose of the law is to open government activity to public scrutiny, not to disclose
information about private citizens.
Although the public records law creates a strong
presumption in favor of disclosure, that presumption applies
only when a document first qualifies as a public record. To
apply a presumption of disclosure when a question exists as to
the nature of the document is inappropriate: The initial inquiry
must be whether the document is subject to the statute. The
reason for this requirement is clear: Disclosure of purely private
documents does nothing to advance the purposes underlying the
public records law. The contents of purely private documents
shed no light on how the government is conducting its business
or spending taxpayer money.
Griffis, 156 P.3d at 421-22 (internal quotations and citations omitted). (See footnote 14)
Similarly, in Denver Publishing Co. v. Board of County Commissioners of
County of Arapahoe, 121 P.3d 190 (Colo. 2005), a newspaper publishing company
successfully obtained a trial court order that required disclosure of e-mail communication
between a county recorder and assistant chief deputy under Colorado's Open Records Act.
The case reached the Supreme Court of Colorado. The state high court held that e-mail
communication that was purely personal was not a public record subject to disclosure under
Colorado's Open Records Act. The court reasoned as follows:
Given the plain language of . . . the CORA statutory
scheme as a whole, it is apparent that e-mail must meet the same
requirements as any other record to be deemed a “public
record”. To be a “public record”, an e-mail message must be for
use in the performance of public functions or involve the receipt
and expenditure of public funds. The simple possession,
creation, or receipt of an e-mail record by a public official or
employee is not dispositive as to whether the record is a “public
record”. The fact that a public employee or public official sent
or received a message while compensated by public funds or
using publicly-owned computer equipment is insufficient to
make the message a “public record”.
. . . .
After considering the content of the e-mail messages, as
required by the statute, we conclude that not all of the e-mail
messages at issue here have a demonstrable connection to the
performance of public functions or involve the receipt or
expenditure of public funds. It is apparent that a large portion
of the e-mail messages instead contain only sexually-explicit
exchanges between Baker and Sale. Based upon the content of
the e-mails, it is clear they were sent in furtherance of their
personal relationship and were not for use in the performance of
the public functions of the Clerk and Recorder's Office. These
messages demonstrate very private exchanges. . . . The only
discernable purpose of disclosing the content of these messages
is to shed light on the extent of Baker and Sales' fluency with
sexually-explicit terminology and to satisfy the prurient interests
of the press and the public.
Accordingly, not all of the e-mail messages at issue are
public records under CORA.. . . .
. . . .
Given the court of appeals' erroneous understanding of
the “public records” definition and the error in the district
court's order finding that all of the messages were “public
records”, we reverse the court of appeals' interpretation and
application of the “public records” definition and remand with
the directions to return the case to the district court for findings
consistent with this opinion.
Denver Publ'g Co., 121 P.3d at 199-204.
In another such case, State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003), a newspaper company filed an action seeking an order compelling the City of Clearwater to release all e-mail sent from or received by two city employees who used government-owned computers for communication. The trial court rejected the request. An appellate court affirmed, but certified a question to the Florida Supreme Court. The certified question was as follows:
Whether all e-mails transmitted or received by public employees of a government agency are public records pursuant to Section 119.011(1), Florida statutes (2000), and Article I, Section 24(a) of the Florida Constitution by virtue of their placement on a government-owned computer system.
Clearwater, 863 So. 2d at 150. The high court in Clearwater answered the certified question
in the negative as follows:
Times Publishing argues that the placement of e-mails on
the City's computer system makes the e-mails public records,
regardless of their content or intended purpose. . . .
. . . .
. . . Times Publishing's argument that the placement of e-
mails on the City's computer network automatically makes them
public records is contrary to this Court's decision in Shevin v.
Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633
(Fla. 1980). In Shevin, this Court rejected the First District's
conclusion that “section 119.011(1) applies to almost everything
generated or received by a public agency.” Id. at 640. Although
this Court acknowledged that the Legislature broadened the
class of public records in enacting section 119.011(1), this Court
concluded that the definition of the term “public records”
limited “public information to those materials which constitute records_ that is, materials that have been prepared with the
intent of perpetuating or formalizing knowledge.” Id. Thus, it
cannot merely be the placement of the e-mails on the City's
computer system that makes the e-mails public records. Rather,
the e-mails must have been prepared “in connection with official
agency business” and be “intended to perpetuate, communicate,
or formalize knowledge of some type.” Id.
. . . .
. . . [P]rivate documents cannot be deemed public records
solely by virtue of their placement on an agency-owned
computer. The determining factor is the nature of the record,
not its physical location.
. . . .
Based on the foregoing, we conclude that “personal” e-
mails are not “made or received pursuant to law or ordinance or
in connection with the transaction of official business” and,
therefore, do not fall within the definition of public records in
section 119.011(1) by virtue of their placement on a
government-owned computer system. Accordingly, we answer
the rephrased question in the negative and approve the Second
District's decision.
Clearwater, 863 So.2d at 151-55.
The Arkansas case of Pulaski County v. Arkansas Democrat-Gazette,
Inc., 260 S.W.3d 718 (Ark. 2007), involved a county comptroller who was arrested for
embezzlement. Subsequent to the arrest, a local newspaper filed a complaint seeking
disclosure of all e-mail communications between the county comptroller and a
nongovernmental third-party that was stored on a county computer. The trial court ordered
disclosure of all e-mails, and the county appealed to the Arkansas Supreme Court. On
appeal, the county argued that the e-mails were not public documents subject to disclosure
under the state's FOIA statute. The high court in Pulaski addressed the issue as follows:
Pulaski County argues that when determining whether a
document is a public record, we must look at the content of the
document, rather than where it is located. Appellee agrees that
we must look at the content, but also argues that we must look
at the context, including “the circumstances surrounding the
transmission of the e-mails, the location of the e-mails, and
subsequent facts that have come to light regarding [the
comptroller] in his position as a public official.”
. . . .
Pulaski County argues that an in camera review is
necessary in this case to determine the content of the e-mails.
Specifically, Pulaski County asserts that the circuit court's
finding could not have been made without reviewing the e-mails
in question. Further, it contends that because the circuit court
did not conduct an in camera review, the e-mails were not
included in the record, and therefore there is no evidence in the
record to support the circuit court's findings
Appellee responds, arguing that because there is no claim
that the e-mails fall under a FOIA exemption, an in camera review is not necessary. . . .
We have held that the circuit court must review the
relevant information in question to determine whether an FOIA
exemption to disclosure applies. . . . While the present case
does not involve a claim that the e-mails fall under an FOIA
exemption, we hold that an in camera review is necessary.
Comparing the nature and purpose of a document with an
official's or agency's activities to determine whether the
required nexus exists necessarily requires a fact-specific inquiry.
To make that inquiry, while maintaining the privacy of personal,
non-public documents, a court should perform an in camera review. A neutral court should be the final arbiter of what
qualifies as a public record. . . .
. . . .
Rather than relying on Pulaski County or Appellee to
make the determination of whether the documents are public, it
is necessary to have a neutral court make this decision.
Accordingly, we remand this case to the circuit court with
instruction to conduct an in camera review to determine if these
e-mails “constitute a record of the performance of official
functions that are or should be carried out by a public official or
employee” thereby making them “public records” pursuant to
the FOIA.
Pulaski, 260 S.W.3d at 722-26.
Likewise, in State ex rel. Wilson-Simmons v. Lake County Sheriff's
Department, 693 N.E.2d 789 (Ohio 1998), an employee of a county sheriff's department filed
a petition for a writ of mandamus with the Ohio Supreme Court, seeking to compel the
sheriff to provide her access to an e-mail generated by fellow employees that allegedly
contained racial slurs against her. The high court in Wilson-Simmons held that the e-mail was
not a public record and therefore the sheriff did not have to disclose the e-mail under the
state's Public Records Act. The opinion reasoned as follows:
The requested e-mail does not constitute “records” for
purposes of R.C. 149.011(G) and 149.43. R.C. 149.43(A)(1)
“does not define a 'public record' as any piece of paper on
which a public officer writes something.” State ex rel. Steffen
v. Kraft (1993), 67 Ohio St. 3d 439, 440, 619 N.E.2d 688, 689.
“To the extent that any item . . . is not a 'record,' i.e., does not
serve to document the organization, etc., of the public office, it
is not a public record and need not be disclosed.” State ex rel.
Fant v. Enright, 66 Ohio St. 3d at 188, 610 N.E.2d at 999. If, as
alleged by Wilson-Simmons, the requested e-mail consists of
racist slurs against her by individual co-workers, then, although
reprehensible, the e-mail does not serve to document the
organization, functions, policies, decisions, procedures,
operations, or other activities of the sheriff's department. There
is no evidence or allegation that the alleged racist e-mail
documented sheriff's department policy or procedures. It was
allegedly circulated only to a few co-workers and was not used
to conduct sheriff's department business.
This conclusion, that the requested e-mail is not a record
for purposes of R.C. 149.43, is supported by both state and
federal precedent. See Steffen, 67 Ohio St. 3d at 439, 619
N.E.2d at 689 (“A trial judge's personal handwritten notes made
during the course of a trial are not public records.”), and cases
cited at 67 Ohio St. 3d at 440, 619 N.E.2d at 689; Internatl.
Union, United Auto., Aerospace & Agricultural Implement
Workers of Am. v. Voinovich (1995), 100 Ohio App. 3d 372, 654
N.E.2d 139 (Governor's personal calendars and appointment
books did not constitute records subject to disclosure under R.C.
149.43 because they did not serve to document any official
activities or functions.); Bur. of Natl. Affairs, Inc. v. United
States Dept. of Justice (C.A.D.C.1984), 742 F.2d 1484, 1492
(“Where, as here, a document is created by an agency employee,
consideration of whether and to what extent that employee used
the document to conduct agency business is highly relevant for
determining whether that document is an 'agency record' within
the meaning of FOIA [the federal Freedom of Information
Act].”); Gallant v. Natl. Labor Relations Bd. (C.A.D.C.1994),
26 F.3d 168, 172 (“[E]ven though employing agency resources
in the creation of the correspondence is a relevant factor in the
agency record analysis, the utilization of agency resources in
this case is not as significant as the other factors employed in
our precedents, which compel a conclusion that the . . .
correspondence was personal, rather than attributable to the
agency.”).
Therefore, although the alleged racist e-mail was created
by public employees via a public office's e-mail system, it was
never used to conduct the business of the public office and did
not constitute records for purposes of R.C. 149.011(G) and
149.43.
Wilson-Simmons, 693 N.E.2d at 792-93.
Lastly, in Brennan v. Giles County Board of Education, No. M2004-00998-
COA-R3-CV, 2005 WL 1996625 (Tenn. Ct. App. Aug. 18, 2005), the plaintiff filed an action
seeking to have a county board of education disclose all “digital records of Internet activity,
including e-mails sent and received, web sites visited and transmissions sent and received
and the identity of any and all Internet Service Providers.” Brennan, 2005 WL 1996625, at
*1. The trial court conducted an in camera review of the requested documents and
determined that none of the documents constituted a public record for disclosure under the
state's Public Records Act. The plaintiff appealed arguing “that, by virtue of the fact that the
requested documents were created during school hours and/or by virtue of the fact that the
requested documents were created and/or stored on school owned computer equipment, these
facts, per se, make them public records under the Act.” Brennan, 2005 WL 1996625, at *2.
The Tennessee Court of Appeals disagreed with the plaintiff as follows:
[T]he Appellant herein interprets the Public Records Act very
broadly and champions a reading whereby any citizen of
Tennessee may gain access to any and all records created during
work hours on computers owned and operated by governmental
entities. However, when read in light of the applicable statutory
definitions, it is clear that the legislature did not intend for all
records to be available for public perusal. . . .
. . . .
The language of T.C.A. § 10-7-301(6) unambiguously
states that, in order to be a public or state record and thereby
subject to access under T.C.A. § 10-7-503, the document must
be “made or received pursuant to law or ordinance or in
connection with the transaction of official business by any
governmental agency.” As in this case, when a question arises
as to whether certain documents fall within the purview of the
statutory definition, it is the role of the trial court, as the
gatekeeper of the law, to make that determination.
When T.C.A. § 10-7-503 is read in conjunction with the
relevant definition at T.C.A. § 10-7-301(6), it is clear that the
legislature placed some limitation on those documents that may
be accessed under the Public Records Act. By the plain
language of the definition, this limitation involves the purpose
behind the creation of the document (i.e. whether it was “made
or received pursuant to law or ordinance or in connection with
the transaction of official business by any governmental
agency”). However, the limitation does not, as the Appellant
argues, rest upon an inquiry into the time (i.e. whether during
business hours) or upon the place where the document was
produced and/or stored (i.e. on school owned computers). It
was, therefore, necessary for the trial court to perform its
judicial function by viewing the requested documents in camera to determine whether these documents were “made or received
pursuant to law or ordinance or in connection with the
transaction of official business by any governmental agency.”
For the trial court to allow the documents to be accessed under
the Public Records Act just by the mere fact that they were
made during business hours and/or on computers that were
school-owned would be a violation of the clear intent of the
legislature and, consequently, a dereliction of the most basic
judicial duty.
Brennan, 2005 WL 1996625, at *2-3. Accord City of Dallas v. Dallas Morning News, LP,
281 S.W.3d 708, 714 (Tex. App. 2009) (“The requested e-mails are not 'public information'
unless they are collected, assembled, or maintained in connection with the transaction of
official business (1) by a governmental body; or (2) for a governmental body and the
governmental body owns the information or has a right of access to it.”).
In the instant case, the AP seeks to have this Court reject the majority
position of nondisclosure of purely personal e-mail communication by a public officer or
employee. Instead, the AP seeks adoption of the minority position taken by the court in Cowles Publishing Co. v. Kootenai County Board of County Commissioners, 159 P.3d 896
(Idaho 2007). The decision in Cowles involved a request by a local newspaper publisher
seeking access to e-mail correspondence between a manager of juvenile education and
training court and her supervisor, the county prosecutor. At the time of the request, a highly
publicized administrative investigation was taking place, involving financial discrepancies
in the juvenile education and training court, as well as an alleged intimate relationship
between the county prosecutor and the manager of juvenile education and training court. The
trial court found that the e-mails were public records and ordered their disclosure. The case
was appealed to the Idaho Supreme Court.
The initial inquiry made by the high court in Cowles was a
determination of whether the e-mails constituted a public record under Idaho's Public
Records Act. The opinion set out the statutory definition of a public record as follows:
A public record “includes, but is not limited to, any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.”
Cowles, 159 P.3d at 900 (emphasis added). The high court held that because of the language,
“but is not limited to,” under the statutory definition of public record, “other records and
writings may qualify even if they do not meet this definition.” Cowles, 159 P.3d at 900. As
a result of Idaho's broad statutory definition of public record, the high court in Cowles held
that the e-mails constituted a public record.
The decision in Cowles justified the Court's determination that the e-
mails were public records, in part, based upon the fact that the county prosecutor had publicly
defended the integrity of the manager of juvenile education and training court. As a result
of the county prosecutor's conduct, Cowles stated that “[w]hether he did so as her supervisor
defending her job performance, or whether he did so because of an alleged inappropriate
relationship is a public concern.” Cowles, 159 P.3d at 900. Further, Cowles held that “[i]t
is not simply the fact that the emails were sent and received while the employees were at
work . . . that makes them a public record. Rather, it is their relation to legitimate public
interest that makes them a public record.” Cowles, 159 P.3d at 901.
In the instant proceeding, the trial court adopted the position taken by
the court in Cowles and rejected the majority position. The AP contends here, as it did
below, that Idaho's definition of a public record is consistent with our FOIA definition of a
public record. The AP is simply wrong. Idaho's definition of public record contains a
provision, “but is not limited to,” that is not found in our FOIA definition. (See footnote 15) The Idaho
provision, “but is not limited to,” permits disclosure of any writing, even if it does not
involve “the conduct of the public's business.” Idaho's expansive definition of a public
record simply goes beyond what our Legislature has permitted. The reach of our FOIA
definition of a public record is limited to documents that relate to “the conduct of the public's
business.”
We believe the majority position on e-mail communication by public
officials or employees is consistent with our FOIA definition of a public record. Therefore,
we hold that a “public record” under the West Virginia Freedom of Information Act (FOIA)
is defined as “includ[ing] any writing containing information relating to the conduct of the
public's business, prepared, owned and retained by a public body.” W. Va. Code § 29B-1-
2(4) (1977) (Repl. Vol. 2007). Under the clear language of the “public record” definition,
a personal e-mail communication by a public official or public employee, which does not
relate to the conduct of the public's business, is not a public record subject to disclosure
under FOIA.
Our holding is consistent with decisions by federal courts in federal
FOIA cases. See Farley, 215 W. Va. at 420, 599 S.E.2d at 843 (“Previously we have looked
to federal FOIA cases for guidance in interpreting the West Virginia Freedom of Information
Act.”). Although we have been unable to find any federal court that has addressed the issue
facing this Court in the context of e-mails, federal courts have addressed the specific issue
of whether private documents created by a government official or employee were subject to
disclosure under federal FOIA. A case on point is Gallant v. National Labor Relations
Board, 26 F.3d 168 (D.C. Cir. 1994).
In Gallant, a member of the National Labor Relations Board (hereinafter
“the Board”) sent letters and faxes to a number of individuals in an attempt to secure her
reappointment to the Board. The plaintiff in Gallant sought disclosure of those documents
under the federal FOIA. The district court denied the request on the ground that the letters
and faxes were private documents, not “agency records,” i.e., public documents. The plaintiff
appealed. The Court of Appeals agreed with the district court based upon the following
reasoning:
While [FOIA] itself does not indicate the types of documents
that constitute “agency records” within the meaning of the Act,
case law makes clear that the term “agency records” is not so
broad as to include personal materials in an employee's
possession, even though the materials may be physically located
at the agency. . . .
. . . .
. . . [I]n cases . . . where documents are created by an
agency employee and located within the agency, use of the
document becomes more important in determining the status of
the document under FOIA. In such cases an agency employee's
creation of a document can be attributed to an agency depending
on the purpose for which the document was created, the actual
use of the document, and the extent to which the creator of the
document and other employees acting within the scope of their
employment relied upon the document to carry out the business
of the agency. Thus, [the plaintiff's] suggested test that
employing agency resources, standing alone, is sufficient to
render a document an “agency record,” is inconsistent with
governing precedent.
On the facts before the district court at summary
judgment, we reach the same conclusion that court did. The . . .
letters were “personal records” of [the Board member], and not
“agency records” within the meaning of the FOIA. Nothing in
the record here indicates that [the Board member] created the
correspondence with anything other than the purely personal
objective of retaining her job. The actual use of the
correspondence, and [the Board member] and other employees'
lack of reliance on the correspondence to carry out the business
of the agency, also supports the district court's finding that the
documents were not agency records. . . .
Gallant, 26 F.3d at 171-72 (internal quotation marks and citations omitted).
In another similar, and relatively recent case, Bloomberg, L.P. v. United
States Securities and Exchange Commission, 357 F. Supp. 2d 156 (D.D.C. 2004), a media
company, Bloomberg, L.P., filed an action in a federal district court seeking disclosure of
certain documents from the office of the United States Securities and Exchange Commission
(hereinafter “the SEC”). Specifically, the plaintiff sought the SEC chairman's calendar,
telephone logs, and telephone message slips, as well as notes by the chairman's chief of staff.
The district court held that all the documents sought were personal and not subject to
disclosure as agency records under the federal FOIA. The district court addressed the request
for each document as follows:
Bloomberg argues that Chairman Pitt's calendar is an
“agency record” subject to FOIA disclosure requirements
because under the totality of the circumstances . . . the calendar
was relied on by agency personnel and was integrated into the
agency's record system when it was maintained on the computer
system and backed-up every thirty-days on the server. The
Court disagrees and, for the following reasons, finds that
Chairman Pitt's calendar is a personal record . . . .
First, . . . only Chairman Pitt's personal assistant, his
Chief of Staff, and Deputy Chief of Staff accessed the calendar,
and then only to determine his availability. Second, . . .
Chairman Pitt's calendar was created for his own personal use,
not for the purpose of creating an official record of his schedule.
Furthermore, that the calendar includes both personal and
business appointments does not preclude a finding that the
document is a personal record. Finally, Bloomberg has argued
that because the calendar was maintained on the agency
computer system and backed-up every thirty days, the calendar
was integrated into the agency record system. However, . . . the
D.C. Circuit has previously held that employing agency
resources, standing alone, is not sufficient to render a document
an agency record. Accordingly, the Court does not find that the
fact that the calendar was maintained on the agency computer
system establishes that it was integrated into the agency's
records.
The Court thus finds that Chairman Pitt's calendar is not
an “agency record” subject to the Court's jurisdiction under
FOIA. . . .
. . . .
Chairman Pitt's telephone logs . . . have been withheld by
the SEC as personal records. According to the SEC, the
telephone logs were maintained for the Chairman's personal
convenience, to remind him of calls that had not been returned,
or of calls that he wanted to make. The daily message logs
included numerous records of calls from family members and
personal friends on a range of issues unrelated to the business of
the [SEC] . . . .
Bloomberg argues that because the logs were maintained
in electronic form using computer hardware and software and
were archived every thirty days, they were integrated into the
agency record-keeping system. Moreover, Bloomberg asserts
that because the logs contain agency-related business and the
Chairman's assistant and Deputy Chief of Staff had access to the
logs, they are agency records under FOIA. . . . For the
following reasons, the Court finds Bloomberg's arguments
unpersuasive, and concludes that, much like Chairman Pitt's
calendar, the telephone logs are personal records.
First, the logs were created and maintained to remind him
of calls to make or return, and did not serve as an official record
of his telephone calls. Second, as was the case with his
calendar, only the Chairman's assistant and his two most senior
staff had access to the telephone logs. There is no indication
that these individuals relied on the telephone log in any
significant way in the course of their duties. Third, that the log
was maintained electronically on the agency's computer system
is not dispositive-as previously noted. . . . Accordingly, the
Court finds that the totality of the circumstances support a
finding that Chairman Pitt's telephone logs are personal records
that are not subject to the Court's jurisdiction under FOIA.
. . . .
. . . The SEC has withheld [telephone message slips] as
personal records and describes them as logs and messages
maintained for [the Chairman's] personal use and convenience,
so that he could ensure that he responded to any call (whether
family, social or business related). . . .
Bloomberg argues that the message slips are “agency
records” under FOIA because they were created or maintained
“entirely with [SEC] resources” and they contained information
related to agency business. . . .
. . . .
. . . [T]he Court finds that the books of telephone
message slips and the individual message slip are not “agency
records.” These documents were intended only for Chairman
Pitt's personal use and were not circulated to anyone other than
him and his assistant, who wrote them. Moreover, they were not
kept with any official agency records. . . .
. . . .
The final document withheld by the SEC as a personal
record [are] . . . notes of Mark Radke, Chairman Pitt's Chief of
Staff, regarding an April 26, 2002 meeting with Eugene
O'Kelly, Chief Executive of KPMG. Radke attests that these
were “personal notes” he took during the meeting, and that the
notes were not circulated to anyone in the Office of the
Chairman or otherwise. The notes were kept with his private
files in his office and no one else had access to them. . . .
In response, Bloomberg argues that the notes were
created by Radke in the course of his official duties as Chief of
Staff and they appear to be the only record of Chairman Pitt's
conversation with the head of [the] accounting firm . . ., which
Bloomberg asserts was the subject of considerable press
coverage. In sum, it is Bloomberg's contention that disclosure
of the notes of Chairman Pitt's meeting with Mr. O'Kelly would
undoubtedly serve to open agency action to the light of public
scrutiny.
Bloomberg's arguments regarding the public interest in
these notes sidestep the primary issue before the Court_ whether
such notes are, in fact, “agency records” that are subject to the
disclosure requirements of FOIA. The Court concludes that
they are not. . . . The notes were created for Radke's own
personal reference, were not relied upon by other agency
personnel, were not incorporated in agency files, and were not
under the agency's control. Even Radke apparently did not rely
on these notes for any purpose. FOIA does not sweep into [its]
reach personal papers that may relate to an employee's work . .
. but which the individual does not rely upon to perform his or
her duties. Accordingly, the Court concludes that Mark Radke's
notes of the April 26, 2002 [meeting] are not “agency records”
subject to its jurisdiction under FOIA.
Bloomberg, 357 F. Supp. 2d at 164-67 (internal quotations and citations omitted). See also
Sibille v. Federal Reserve Bank of New York, 770 F. Supp. 134 (S.D.N.Y. 1991) (handwritten
notes of meetings and telephone conversations were not agency records under FOIA).
In view of our holding in the instant case, and the foregoing authorities,
we conclude that none of the thirteen e-mails at issue herein constituted a public record under
FOIA. None of the e-mail's contents involved the official duties, responsibilities or
obligations of Justice Maynard as a duly-elected member of this Court. Twelve of the e-
mails simply provided URL (See footnote 16) links to privately-operated internet websites that carried news
articles Justice Maynard believed Mr. Blankenship would be interested in reading. All
twelve of the news articles were written by private entities and were already in the public
domain. The thirteenth e-mail did nothing more than provide Mr. Blankenship with the
agenda for a meeting being held by a private organization. Consequently, logic dictates that
we conclude that not one of the thirteen e-mails was related in any manner to either the
conduct of the public business, or to the official duties, responsibilities or obligations of the
particular public body, which was in this instance, Justice Maynard. In the final analysis, if
we adopted the AP's position that these e-mails constituted public records, then “a grocery
list written by a government employee while at work, a communication to schedule a family
dinner, or a child's report card stored in a desk drawer in a government employee's office
would be subject to disclosure. [FOIA] was never intended to encompass such documents[.]” Griffis, 156 P.3d at 421. Accord Braun v. City of Taft, 201 Cal. Rptr. 654, 658 (Cal. Ct. App.
1984) (“'This definition [of public record] is intended to cover every conceivable kind of
record that is involved in the governmental process. . . . Only purely personal information
unrelated to 'the conduct of the public's business' could be considered exempt from this
definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend
which is totally void of reference to governmental activities.'” (quoting San Gabriel Tribune
v. Superior Court, 143 Cal. App. 3d 762, 774 (Cal. Ct. App. 1983))); Clearwater, 863 So. 2d
at 154 (“If the Attorney General brings his household bills to the office to work on during
lunch, do they become public record if he temporarily puts them in his desk drawer? If a
Senator writes a note to herself while speaking with her husband on the phone does it become
public record because she used a state note pad and pen? The Sheriff's secretary, proud of
her children, brings her Mother's Day cards to the office to show her friends. Do they
become public records if she keeps them in the filing cabinet?”).
2. The e-mails were not public records because of the public interest
context in which they were sought. The AP has further argued that a determination of
whether the e-mails are public records should also require an examination of the public
interest “context” in which they were sought. In this regard, the AP asserts that the e-mails
covered a period when there was great public interest in the relationship between Justice
Maynard and Mr. Blankenship, as well as “enormous statewide and national public interest”
in our judicial recusal procedures. Insofar as the e-mails were sought during a time when
there was public interest in those matters, the AP takes the position that the e-mails became
public records for purposes of FOIA.
This context-driven analysis advocated by the AP was adopted by the circuit
court. In its order, the circuit court held “that both the content of the e-mails at issue and the context under which they were created are relevant to the determination of whether they
contain information relating to the conduct of the public's business.” (See footnote 17) In rendering this
ruling, the circuit court made two distinct context-driven determinations. First, the circuit
court found that five of the e-mails were public records because they were created in the
public interest context of Justice Maynard's campaign for re-election. Second, the circuit
court determined that because of the public's interest in the relationship between Justice
Maynard and Mr. Blankenship, the remaining eight e-mails would have been ordered
disclosed had Justice Maynard not recused himself from cases involving Massey Energy
Company.
On appeal to this Court, the AP requests that we also adopt a context driven
analysis to determine whether the subject e-mails should be disclosed. However, we are not
persuaded by either the AP or the circuit court's reliance on a document's context as a
determinative factor of a document's status as a public record and conclude, instead, that the
better approach, which is dictated by our statutory law and followed by a majority of
“[o]ther states [that] (See footnote 18) use[s] a [solely] content-driven analysis in determining whether a
document is a public record.” Pulaski, 260 S.W.3d at 722. Accord Griffis, 156 P.3d at 421
(“Determining a document's status . . . requires a content-driven inquiry.”); Denver, 121
P.3d at 197 (“[T]he 'public records' definition . . . require[s] a content-driven inquiry
ensuring the records disclosed . . . were tied to public functions or public funds.”).
As previously indicated, FOIA defines a public record as “any writing
containing information relating to the conduct of the public's business, prepared, owned and
retained by a public body.” W. Va. Code § 29B-1-2(4). This definition neither expressly nor
implicitly makes a document a public record merely because of public interest in the record.
For this Court to engage in the context-driven analysis used by the circuit court and urged
by the AP, this Court would have to rewrite FOIA's definition of a public record to include
a context-driven analysis. Simply put, we are not at liberty to rewrite FOIA's definition of
a public record to include a context-driven analysis. We have held on a number of occasions
that “[t]his court 'cannot rewrite [a] statute so as to provide relief . . . nor can we interpret the
statute in a manner inconsistent with the plain meaning of the words.'” McVey v. Pritt, 218
W. Va. 537, 540-41, 625 S.E.2d 299, 302-03 (2005) (quoting VanKirk v. Young, 180 W. Va.
18, 20, 375 S.E.2d 196, 198 (1988)). Accord Dunlap v. Friedman's, Inc., 213 W. Va. 394,
398, 582 S.E.2d 841, 845 (2003) (“[T]his Court cannot substitute its own judgment for that
of the legislature and significantly rewrite the statute.”); State ex rel. Frazier v. Meadows,
193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994) (“Courts are not free to read into the language
what is not there, but rather should apply the statute as written.”).
If FOIA's definition of a public record is to include an examination of
the record's context by virtue of the public's interest in the record, the Legislature must add
such language to that definition. The Legislature has not done so. Consequently, we hold
that a trial court's determination of whether personal e-mail communication by a public
official or employee is a public record, subject to disclosure under the West Virginia
Freedom of Information Act, W. Va. Code § 29B-1-1, et seq., is restricted to an analysis of
the content of the e-mail and does not extend to a context-driven analysis because of public
interest in the record.
Accordingly, we find that the circuit court was correct in refusing to
release eight of the e-mails, (See footnote 19) but committed error in ordering disclosure of the five remaining
e-mails.
We wish to acknowledge the contributions from the briefs submitted by the Amici Curiae. An amicus curiae brief supporting Mr. Canterbury's position was filed by the West Virginia Judicial Association. An amicus curiae brief supporting the AP's position was filed on behalf of The Reporters Committee for Freedom of the Press, The American Civil Liberties Union of West Virginia, The Association of Capitol Reporters and Editors, The Radio and Television News Directors Association, The Society of Professional Journalists, and The West Virginia Press Association. We value the participation of these organizations and the helpful insights their briefs lend to the parties' arguments.
The AP had submitted an earlier, broadly-worded, FOIA request on January 16, 2008, which was denied by Mr. Canterbury. That request is not the subject of this appeal.
The FOIA request also sought all communications that were made between Mr. Blankenship and Justice Maynard's staff, as well as communication between Justice Maynard and/or his staff with Brenda Magann, a Court employee. The record clearly reflects that no such communications existed.
See W. Va. Code § 29B-1-5(1) (1977)(Rep. Vol. 2007) (“Any person denied the right to inspect the public record of a public body may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.”).
The circuit court's order explicitly held that insofar “[a]s the injunctive relief
provided effectively resolves the dispute between the parties, declaratory relief is
unnecessary.” We also should note that the parties have suggested that the standard of
review is that which we utilize for summary judgment. See Farley v. Worley, 215 W. Va.
412, 418, 599 S.E.2d 835, 841 (2004) (“'Summary judgment is the preferred method of
resolving cases brought under FOIA.'”) (quoting Evans v. Office of Personnel Mgt., 276
F.Supp.2d 34, 37 (D.D.C. 2003)). However, that standard of review is not applicable
because the trial court held an evidentiary hearing in which witness testimony was taken. We
therefore treat the disposition as an order arising from a bench trial. See W. Va. R. Civ. P.
52 (a).
We wish to make abundantly clear that this opinion does not address the issue of whether communication between Justice Maynard and his law clerks or other court personnel concerning judicial decision-making was subject to disclosure under FOIA. The circuit court's order expressly noted in passing that “FOIA exempts from disclosure 'internal memoranda or letters received or prepared by a public body.' W. Va. Code § 29B-1-4(a)(8) (2008). Accordingly, such internal communications and information would clearly reflect the judicial decision making process and would be exempt from disclosure under FOIA.”
We reject the suggestion in Mr. Canterbury's brief that FOIA has no application to records kept by the judicial branch of government.
We wish to make clear that there is no absolute right to obtain disclosure of nonexempt judicial public records through FOIA if other means of disclosure exist. See e.g., Syl. pt. 3, State ex rel. Wyant v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (“An inmate may not use the Freedom of Information Act, W. Va. Code § 29B-1-1 et seq., to obtain court records for the purpose of filing a petition for writ of habeas corpus. Instead, an inmate is bound to follow the procedures set out in the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia for filing a petition for writ of habeas corpus and to obtain documentation in support thereof.”).
The AP's brief frames the issues in a variety of ways. However, we have reduced those issues to their analytical essence.
Insofar as this case turns on whether or not the thirteen e-mails are “public records,” we need not address FOIA's exemptions. See W. Va. Code § 29B-1-4 (2009) (Supp. 2009) (setting out FOIA's exemptions).
The high court in Griffis remanded the case for a determination of whether the contents of any of the e-mails constituted a public document.
Only two other states use a phrase similar to “but is not limited to” in their
FOIA definition of public record. See 5 Ill. Comp. Stat. Ann. § 140/2(c) (2002);
Or. Rev. Stat. Ann.. § 192.410(4) (2005).
URL is the “[a]bbreviation of Uniform Resource Locator, the global address of documents and other resources on the World Wide Web.” Webopedia Online Dictionary, http://www.webopedia.com/term/u/url.html. See also Felsher v. University of Evansville, 755 N.E.2d 589, 595 (Ind. 2001) (“[E]ach web page is stored and accessed as a separate file located by a unique address called a Uniform Resource Locator (URL).”).
The trial court's reliance upon a context-driven analysis was due to the fact that it adopted the analytical framework relied upon by the Idaho Supreme Court in Cowles. That is, the court in Cowles applied a context-driven analysis in reaching its decision.
Nevertheless, our cases do permit a “context-driven” analysis for writings that are, in fact, public records, but which are specifically exempted from disclosure by FOIA. See W. Va. Code § 29B-1-4 (2009) (Supp. 2009) (setting out FOIA's exemptions). However, we have never held that a context-driven analysis is appropriate for deciding whether a personal document should be deemed a public record in the first instance. See, e.g., In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008) (allowing public interest to be a factor in deciding whether to disclose public records of activity logs and payroll time sheets of police officers); Smith v. Bradley, 223 W. Va. 286, 673 S.E.2d 500 (2007) (allowing public interest to be a factor in deciding whether to disclose public record performance evaluations in the form of student, peer, and chair evaluations); Manns v. City of Charleston Police Dep't., 209 W. Va. 620, 550 S.E.2d 598 (2001) (allowing public interest to be a factor in deciding whether to disclose public records regarding outcome of police department's internal investigations of every officer against whom civil or criminal complaint had been filed); Robinson v. Merritt, 180 W. Va. 26, 375 S.E.2d 204 (1988) (allowing public interest to be a factor in deciding whether to disclose workers' compensation public records containing names, addresses, employer information, and information regarding type of injuries sustained by numerous injured workers); Child Prot. Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986) (allowing public interest to be a factor in deciding whether to disclose public records of employee's medical history). Moreover, in Cline we limited a context-driven analysis as follows: “The interest may be pecuniary, or the public may have an interest because their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity.” Cline, 177 W. Va. at 33, 350 S.E.2d at 544.
We agree with the circuit court's decision not to release the eight e-mails, but disapprove of the circuit court's context-driven determination that the eight e-mails would have been ordered disclosed had Justice Maynard had not recused himself from cases involving Massey Energy Company. See Schmehl v. Helton, 222 W. Va. 98, 106 n.7, 662 S.E.2d 697, 705 n.7 (2008) ( “[T]his Court may in any event affirm the circuit court on any proper basis, whether relied upon by the circuit court or not.”); Murphy v. Smallridge, 196 W. Va. 35, 36-37, 468 S.E.2d 167, 168-69 (1996) (“An appellate court is not limited to the legal grounds relied upon by the circuit court, but it may affirm or reverse a decision on any independently sufficient ground that has adequate support.”).
As we previously indicated, as a result of the circuit court's resolution of this case based upon the AP's request for injunctive relief, it did not have to reach the AP's claim for declaratory judgment. We leave for the circuit court to determine on remand to what extent, if any, the AP's request for declaratory judgment has merit in light of our disposition of the injunctive relief decision.