                                                                                    FILED
No. 15-1174 – W.Va. Regional Jail Authority v. Marcum                            April 26, 2017
                                                                                    released at 3:00 p.m.
                                                                                  RORY L. PERRY II, CLERK
WORKMAN, Justice, concurring in part, and dissenting in part.                   SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




              I concur in the result the majority reaches in this specific case, but

vehemently disagree with the all-encompassing syllabus point four that reads, in part:

“Pursuant to W.Va. Code § 29B-1-4(a)(19) (2016) (Supp. 2016) disclosure of a videotape

of the cell extraction of an inmate is prohibited[.]” (Emphasis added). After watching the

videotape at issue, 1 I concur that the Regional Jail has shown that it is exempt from

disclosure pursuant to West Virginia Code § 29B-1-4(a)(19), because it shows in some

detail the route of egress from an inmate’s cell to the outside of the facility, including the

secured points. Thus, if released, it “could be used by an inmate or resident to escape a

facility, or to cause injury to another inmate, resident or to facility personnel.” Id.



              Each videotape of a jail cell extraction of an inmate should be analyzed to

determine whether the circumstances in a given situation support a legal conclusion that

it falls within a FOIA exemption. The majority should not have adopted a blanket rule

with respect to the applicability of this exemption to all such videotapes. Rather, the

majority should have preserved the right of the lower courts to make these specific



       1
         The lower court reviewed the videotape and made findings of fact on the incident
in order to apply the FOIA exemption statute to those facts. Each and every member of
the majority was obligated to view the videotape before reversing the lower court’s legal
analysis of the FOIA issue, and I hope they did so.

                                               1

determinations on a case-by-case basis because other jail cell extraction videos may not

contain such information.



              The strong tenor of the law is that the exemptions from the mandatory

disclosure requirement of the Freedom of Information Act (FOIA) are both narrowly

drafted and narrowly construed. This counterbalances the self-protective instincts of

bureaucracy which, as in any organization, would prefer to operate under the relatively

forgiving eye of only its own members rather than the more revealing “sunlight” of

public scrutiny.



              The United States Supreme Court has explained that the federal FOIA, 5

U.S.C. § 552, is “a means for citizens to know ‘what their Government is up to.’ This

phrase should not be dismissed as a convenient formalism. It defines a structural

necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S.

157, 171-172 (2004) (citation and internal quotation marks omitted). As the Supreme

Court has “consistently recognized[,] . . . the basic objective of the Act is disclosure.”

Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute

represents a “balance [of] the public’s interest in governmental transparency against

legitimate governmental and private interests [that] could be harmed by release of certain

types of information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559

(D.C.Cir.2010) (internal quotation marks and citations omitted). Reflecting that balance,

the federal FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are
                                            2

explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy,

562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v.

Abramson, 456 U.S. 615, 630 (1982)).



              In the same way, West Virginia’s FOIA is, indeed, a pro-disclosure statute

with twenty specific exemptions. See W.Va. Code § 29B-1-4(a), in part (“[t]here is a

presumption of public accessibility to all public records, subject only to the following

categories of information which are specifically exempt from disclosure[.]”). “This Court

has made clear that the FOIA’s exemptions are to be strictly construed, while the FOIA’s

disclosure provisions are to be liberally construed[.]” Highland Min. Co. v. W.Va. Univ.

Sch. of Med., 235 W.Va. 370, 381, 774 S.E.2d 36, 47 (2015). Where an enumerated

exemption is relied on, the court must determine the matter de novo,2 and the public body

asserting the exemption has the burden of sustaining the applicability of the asserted

exemption.




       2
         See generally Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 769 (9th Cir. 2015)
(“We review . . . FOIA cases in a two-step process. Berman v. CIA, 501 F.3d 1136, 1139
(9th Cir. 2007). First, we review de novo whether the documents submitted by the
agencies give an adequate factual basis for the district court’s decision. Id. If there is an
adequate factual basis, we then determine ‘whether the district court’s decision regarding
[the] applicability of FOIA’s exemptions was correct.’ Id. Factual findings are reviewed
for clear error, but legal conclusions, including whether a document fits within one of
FOIA’s exemptions, are reviewed de novo. Id.”).

                                             3

              By adopting a wholesale rule that such records are categorically exempt

from disclosure, the majority’s interpretation is impermissibly broad.3 The interaction of

inmates and correctional officers may shed light on the operations of the correctional

facilities and their treatment of those who are incarcerated. “These are matters of

legitimate public concern.” Rataj v. City of Romulus, 858 N.W.2d 116, 125 (Mich. 2014).

In Rataj, an attorney filed suit against city, seeking to compel release of a videorecording

showing a police officer’s alleged assault of unnamed individual who had been arrested

and handcuffed. The appeals court found the videotape was subject to disclosure, and

noted “the video would shed light on the operations of the [police department] and, in

particular, its treatment of those arrested and detained by its officers.” Id. at 125.

Certainly, West Virginia citizens enjoy the same broad rights to obtain such public

records, limited only by the coverage of the statute and its exemptions. Where there is a

       3
        As this Court held in syllabus point five, in part, of Farley v. Worley, 215 W.Va.
412, 599 S.E.2d 835 (2004):

                     In response to a proper Freedom of Information Act
              request, a public body has a duty to redact or segregate
              exempt from non-exempt information contained within the
              public record(s) responsive to the FOIA request and to
              disclose the nonexempt information unless such segregation
              or redaction would impose upon the public body an
              unreasonably high burden or expense.

See also Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830
F.3d 667, 677 (D.C. Cir. 2016) (“The statute thus sets forth the broad outlines of a
process for agencies to follow when responding to FOIA requests: first, identify
responsive records; second, identify those responsive records or portions of responsive
records that are statutorily exempt from disclosure; and third, if necessary and feasible,
redact exempt information from the responsive records.”).

                                             4

balance to be struck, the Legislature and this Court have stacked the scales in favor of

disclosure and against exemption. These determinations are highly fact-specific, and,

therefore, should be made on a case-by-case basis.



             For these reasons, I would not adopt the majority’s bright-line approach but

would leave the door open for the disclosure of jail cell extraction videotapes in some

limited circumstances.




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