IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                    January Term 2018
                     _______________                         FILED

                                                         January 31, 2018

             Nos. 16-1101, 16-1032 and 16-1104
              released at 3:00 p.m.
                                                         EDYTHE NASH GAISER, CLERK

                       Consolidated
                     SUPREME COURT OF APPEALS

                     _______________                          OF WEST VIRGINIA




       ST. MARY’S MEDICAL CENTER, INC., and

        PALLOTTINE HEALTH SERVICES, INC.,


                        Petitioners


                            v.

        STEEL OF WEST VIRGINIA, INC., and

     PATRICK MORRISEY, ATTORNEY GENERAL,

                  Respondents


                           and


     PATRICK MORRISEY, ATTORNEY GENERAL,


                      Petitioner

                          v.

            STEEL OF WEST VIRGINIA, INC.,

                     Respondent


                     _______________

     Appeals from the Circuit Court of Kanawha County

          The Honorable Tod J. Kaufman, Judge

                 Civil Action No. 15-C-2214

                      _______________

              REVERSED AND REMANDED
                   _______________


               Submitted: January 23, 2018

                 Filed: January 31 , 2018

James W. Thomas, Esq.                  Carte P. Goodwin, Esq.
Rachel D. Ludwig, Esq.                 Frost Brown Todd LLC
Jackson Kelly PLLC                     Charleston, West Virginia
Charleston, West Virginia              Counsel for Respondent
Counsel for Petitioners                Steel of West Virginia, Inc.
St. Mary’s Medical Center, Inc., and
Pallottine Health Services, Inc.       Patrick Morrisey, Esq.
                                       Attorney General
                                       Elbert Lin, Esq.
                                       Solicitor General
                                       Edward M. Wenger, Esq.
                                       General Counsel
                                       Katherine A. Schultz, Esq.
                                       Steven A. Travis, Esq.
                                       Office of the Attorney General
                                       Charleston, West Virginia
                                       Counsel for the State of West Virginia




JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




       1. The West Virginia Freedom of Information Act, W.Va. Code, 29B-1-4(a)(5) [2015],

which excepts from public accessibility “information specifically exempted from disclosure

by statute,” incorporates the investigative exemption from disclosure of information set forth

in the West Virginia Antitrust Act, W.Va. Code, 47-18-7(d) [1978]. The investigative

exemption is mandatory in specifying that the Attorney General “shall not” make public the

name or identity of a person whose acts or conduct he investigates or “the facts” disclosed

in the investigation.



       2. “Where the language of a statute is free from ambiguity, its plain meaning is to be

accepted and applied without resort to interpretation.” Syl. pt. 2, Crockett v. Andrews, 153

W.Va. 714, 172 S.E.2d 384 (1970).



       3. “The presumption is that a statute is intended to operate prospectively, and not

retrospectively, unless it appears, by clear, strong and imperative words or by necessary

implication, that the Legislature intended to give the statute retroactive force and effect.”

Syl. pt. 4, Taylor v. State Comp. Comm’n., 140 W.Va. 572, 86 S.E.2d 114 (1955).
Justice Ketchum:


       West Virginia Attorney General Patrick Morrisey (“Attorney General”) appeals from

two orders of the Circuit Court of Kanawha County entered on October 28, 2016, unsealing

an index of 349 documents and directing the Attorney General to produce 89 of those

documents. The orders were entered in an action brought by Steel of West Virginia, Inc.

(“Steel”), to enforce its request for production of material under this State’s Freedom of

Information Act (“FOIA”). The Attorney General received the 349 documents in connection

with his investigative powers under the West Virginia Antitrust Act regarding the proposed

merger of St. Mary’s Medical Center, Inc. (“St. Mary’s”), and Cabell Huntington Hospital,

Inc. (“Cabell Huntington”).



       Steel opposed the merger before the West Virginia Health Care Authority. The

Authority’s approval of the merger through its award of a certificate of need was the subject

of a separate appeal before this Court. The issues in that appeal, however, were settled and

resolved, and Steel’s appeal from the Authority’s decision was dismissed as moot. A motion

to dismiss the current FOIA matter in conjunction with the dismissal of Steel’s appeal on the

merits of the Authority’s decision was refused by this Court. See syl. pt. 1, State ex rel.

M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984) (A case not rendered moot if the

issues “are capable of repetition and yet will evade review.”).



                                             1

       In the current matter, limited to Steel’s FOIA request, both the Attorney General and

St. Mary’s contend that the index of the 349 documents and the 89 documents to be produced

are exempt from disclosure.1 Thus, the Attorney General’s appeal has been consolidated with

two related appeals filed by St. Mary’s. In one appeal, St. Mary’s challenges the denial of

its motion to intervene in the underlying FOIA action. In the other, St. Mary’s challenges

the unsealing of the index and the production of the 89 documents.2



       This Court concludes that the circuit court committed error in ordering the production

of the index and the 89 documents. The circuit court ordered the production of the index as

a sanction against the Attorney General for sharing part of the index with the Federal Trade

Commission. We find the sanction inappropriate. We further find that the 89 documents are

not subject to production because of the statutory exemption raised by the Attorney General.

That exemption is set forth in W.Va. Code, 29B-1-4 [2015], of the Freedom of Information

       1
       The record reveals a discrepancy in whether 89 or 87 documents were to be
produced. In an October 28, 2016, order, the Attorney General was directed to produce
89 documents.
       2
        Although not a party to the FOIA action brought by Steel against the Attorney
General, the denial of St. Mary’s motion to intervene is appealable to this Court, which
enabled St. Mary’s to file “protective notices of appeal.” See Stern v. Chemtall Inc., 217
W.Va. 329, 617 S.E.2d 876 (2005) (granting appeal from denial of motion to intervene);
Louis J. Palmer, Jr., and The Hon. Robin Jean Davis, Litigation Handbook on West
Virginia Rules of Civil Procedure, Rule 24, § 24[2][e] (5th ed. 2017) (“An order denying
intervention is final and immediately appealable.”). See also Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d, § 1923 (2007) (Denial of intervention should
be regarded as an appealable final order.). Steel’s motion to dismiss St. Mary’s appeals
was denied by this Court in April 2017.

                                             2

Act which incorporates, in subsection (a)(5), the confidentiality provisions of the Antitrust

Act. Finally, inasmuch as the arguments of St. Mary’s largely mirror those of the Attorney

General, we find the two appeals filed by St. Mary’s to be moot.



          The orders entered by the circuit court on October 28, 2016, are reversed, and this

action is remanded to the circuit court for the entry of an order dismissing Steel’s FOIA

action.



                                    I. Factual Background

          St. Mary’s is a general, acute care hospital in Huntington, West Virginia. Its parent

corporation is Pallottine Health Services, Inc. In 2014, Pallottine decided to sell St. Mary’s,

and, following a competitive bidding process, an agreement was reached in November 2014

whereby St. Mary’s would merge with Cabell Huntington, another general, acute care

hospital in the Huntington area. Support for the merger in the local community was based

on the likelihood that the merger would save jobs, allow more portability of health care

providers and result in better patient care. Steel opposed the merger, asserting that healthcare

costs will increase if the two hospitals do not remain in competition.



          Various regulatory reviews and approvals were required before the merger could take

place. Among the requirements was the opening in 2014 of antitrust investigations by the


                                                3

Federal Trade Commission and the West Virginia Attorney General. The Attorney General’s

investigative authority regarding the merger is found in the West Virginia Antitrust Act,

W.Va. Code, 47-18-1 [1978], et seq.



       Documents concerning the business operations and finances of the two hospitals, and

the bidding process, were sent by St. Mary’s and Cabell Huntington to the Federal Trade

Commission and the Attorney General. The Federal Trade Commission transferred a number

of the documents it received to the Attorney General.           On November 25, 2014, a

confidentiality agreement was executed by St. Mary’s, Cabell Huntington and the Attorney

General which stated that the documents received by the Attorney General would not be

subject to disclosure and would only be used in the investigation “for any legal challenge of

the Transaction [merger] under federal or state antitrust laws, or for other law enforcement

purposes.”



       On July 31, 2015, the Attorney General filed an Assurance of Voluntary Compliance

in the Office of the Clerk of Cabell County. An amended Assurance of Voluntary

Compliance was filed on November 4, 2015.3 In both documents, the Attorney General


       3
           W.Va. Code, 47-18-22 [1978], of the Antitrust Act, states:

              In the administration of this article, the attorney general may accept
       an assurance of voluntary compliance with respect to any method, act or
       practice deemed to be a violation of this article from any person who has

                                               4

concluded that the merger was in the best interests of the State of West Virginia. However,

the Assurances also secured commitments from St. Mary’s and Cabell Huntington to abide

by antitrust laws in future operations.



       Specifically, St. Mary’s and Cabell Huntington were required under the Assurances

of Voluntary Compliance to observe a number of conditions for a period of years following

the merger’s consummation. The November 4, 2015, amended Assurance extended the

period of years from seven to ten years. Both Assurances stated that neither St. Mary’s nor

Cabell Huntington would oppose the award of a certificate of need to any health care

provider seeking to provide services “similar to or competitive with” the services provided

by St. Mary’s or Cabell Huntington in the market area. The amended Assurance clarified that

“services” in that context included both outpatient and inpatient services. Moreover, under

the amended Assurance, St. Mary’s and Cabell Huntington were required to submit

compliance reports to the Attorney General until the amended Assurance expired. St. Mary’s

and Cabell Huntington were also required to submit additional information or documentation



       engaged or was about to engage in such method, act or practice. Such
       assurance may include a stipulation for voluntary payment by the alleged
       violator of damages sustained by any person or public body. Any such
       assurance shall be in writing and be filed with the circuit court in which the
       alleged violator resides, has his principal place of business, or is doing
       business. Such assurance of voluntary compliance shall not be considered
       an admission of violation for any purpose. Matters thus closed may at any
       time be reopened by the attorney general for further proceedings in the
       public interest. (emphasis added)

                                             5

upon request of the Attorney General “at any time.” Should such a request be made, the

request would be deemed “made in the investigation of a potential violation of state and/or

federal antitrust laws and as such both the request and any response thereto, including

documents or things produced, are subject to confidentiality provisions contained in state

and/or federal law.”



       In September 2015, Steel sent the Attorney General a request under the West Virginia

Freedom of Information Act, W.Va. Code, 29B-1-1 [1977], et seq., “to inspect or obtain

copies of all public records and incoming and outgoing correspondence relating to the

proposed merger of Cabell Huntington Hospital and St. Mary’s Medical Center.”



       In response, the Attorney General provided Steel with copies of documents considered

subject to disclosure4 but determined that the remaining documents were statutorily exempt

under subsection (a)(5) of W.Va. Code, 29B-1-4 [2015]. Subsection (a)(5) provides in

relevant part:


              (a) There is a presumption of public accessibility to all public records,
       subject only to the following categories of information which are specifically
       exempt from disclosure under the provisions of this article:
              (5) Information specifically exempted from disclosure by statute[.]


       4
        Steel described the documents the Attorney General considered subject to
disclosure as largely consisting of previously available public records, news articles, and
e-mails exchanging press releases and news stories.

                                              6

       The parties do not dispute that subsection (a)(5), concerning “statutory exemptions,”

incorporates the “investigative exemption” of the West Virginia Antitrust Act, W.Va. Code,

47-18-7(d) [1978]. W.Va. Code, 47-18-7(d) [1978], states: “The attorney general shall not

make public the name or identity of a person whose acts or conduct he investigates pursuant

to this section or the facts disclosed in the investigation, but this subsection does not apply

to disclosures in actions or enforcement proceedings pursuant to this article.”



                                II. Procedural Background

       In December 2015, Steel filed a complaint in the Circuit Court of Kanawha County

to enjoin the Attorney General from withholding the documents claimed to be exempt from

disclosure.5 Steel alleged that the Attorney General had no basis for the exemptions and that,

in any event, the Attorney General should submit a “Vaughn Index” of the withheld

documents and an affidavit providing a detailed explanation why each document is exempt

and why disclosure of the document would be harmful.6 St. Mary’s, Pallottine and Cabell

       5
        The action was styled Steel of West Virginia, Inc., Plaintiff v. Patrick Morrisey,
Attorney General, State of West Virginia, Acting in his Official Capacity, Defendant,
Civil Action No. 15-C-2214 (Kan. Co. 2015).
       6
       A Vaughn Index was described in Farley v. Worley, 215 W.Va. 412, 599 S.E.2d
835 (2004), as follows:

              When a public body asserts that certain documents or portions of
       documents in its possession are exempt from disclosure under any of the
       exemptions contained in W.Va. Code, 29B-1-4 (2002 Repl.Vol.) (2003
       Supp.), the public body must produce a Vaughn index named for Vaughn v.
       Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct.

                                              7

Huntington were not named parties in the action.



       The Attorney General asserted in the answer that the documents sought were collected

in the course of an antitrust investigation. Therefore, production of the documents or

providing a Vaughn Index would be precluded by the confidentiality provisions of the

Freedom of Information Act and the Antitrust Act.



       In a parallel proceeding, Cabell Huntington filed an application with the West

Virginia Health Care Authority for a certificate of need regarding the merger.7 Steel, granted

“affected person” status by the Authority, was permitted to participate in the proceeding and




       1564, 39 L.Ed.2d 873 (1974). The Vaughn index must provide a relatively
       detailed justification as to why each document is exempt, specifically
       identifying the reason(s) why an exemption under W.Va. Code, 29B-1-4 is
       relevant and correlating the claimed exemption with the particular part of
       the withheld document to which the claimed exemption applies. The
       Vaughn index need not be so detailed that it compromises the privilege
       claimed. The public body must also submit an affidavit, indicating why
       disclosure of the documents would be harmful and why such documents
       should be exempt.

Syllabus point 6, in part. Accord syllabus point 8, Hurlbert v. Matkovich, 233 W.Va. 583,
760 S.E.2d 152 (2014).
       7
        See W.Va. Code, 16-2D-1 [2016], et seq. (establishing a certificate of need
process in relation to the offering or development of health services). The proceeding
concerning the proposed merger was styled In re: Cabell Huntington Hospital, Inc., CON
File # 14-2-10375-A.

                                              8

oppose the merger.8 On March 16, 2016, the Health Care Authority granted certificate of

need approval to Cabell Huntington to complete the merger. That decision was affirmed by

the Office of Judges. In April 2017, the Office of Judges’s approval of the certificate of need

was affirmed by the Circuit Court of Kanawha County. Steel’s petition for appeal therefrom

was separately pending before this Court.9 However, the issues therein were settled and

resolved, rendering that appeal moot.



       In the current FOIA action, the circuit court ordered the Attorney General to prepare

a Vaughn Index of the withheld documents and file the Index under seal in the circuit court.

On September 7, 2016, the Attorney General filed the Vaughn Index, listing 349 documents

claimed to be exempt from disclosure. The circuit court then ordered the Attorney General

to produce the Vaughn Index to Steel, with the Index to otherwise remain under seal. Upon

analyzing the Index, Steel agreed that in excess of 200 documents were exempt from

disclosure. On October 5, 2016, an order was entered directing the Attorney General to

       8
         Steel filed a petition for a writ of mandamus in this Court to compel the Health
Care Authority to issue a subpoena duces tecum to St. Mary’s for documents concerning
the bidding process which resulted in the proposed merger. The Authority maintained
that the documents were irrelevant to the certificate of need proceeding. This Court
refused Steel’s petition for a writ of mandamus in December 2015. See State ex rel. Steel
of West Virginia, Inc., v. West Virginia Health Care Authority and Cabell Huntington
Hospital, Inc., Supreme Court No. 15-1163 (2015). The documents concerning the
bidding process are among the documents in question in Steel’s FOIA action now before
us.
       9
        See Steel of West Virginia, Inc., v. West Virginia Health Care Authority and
Cabell Huntington Hospital, Inc., Supreme Court No. 17-0406.

                                              9

produce each of the 349 documents, in unredacted form, to the circuit court for an in camera

review.



       In an October 6, 2016, letter to the circuit court, the Federal Trade Commission stated

that the documents the FTC received concerning the merger of St. Mary’s and Cabell

Huntington had been provided to the Attorney General upon the Attorney General’s

certification “that the material would be maintained in confidence and used only for official

law enforcement purposes.” The letter concluded:


               The current program for cooperation in federal-state law enforcement
       depends on private parties being confident that their commercially sensitive
       materials [are] being maintained in confidence by state regulators. If third
       parties cannot rely on such assurances, they will be far less likely to cooperate
       in merger investigations, to the detriment of both federal and state law
       enforcement.


       Similar letters indicating that the documents in question should not be publically

disclosed were sent to the circuit court by St. Mary’s and Cabell Huntington. On October 11,

2016, St. Mary’s and Cabell Huntington filed motions to intervene in Steel’s FOIA action.

St. Mary’s alleged that the confidentiality of its business operations, finances and trade

secrets were at stake and that it had the clearest understanding of the harm which would

befall it should the documents become public records under the FOIA request. Cabell

Huntington, however, later withdrew its motion to intervene on the basis that the Attorney

General effectively represented its interests.

                                                 10

       On October 28, 2016, the circuit court entered three orders which resulted in these

consolidated appeals. First, the circuit court denied St. Mary’s motion to intervene. The

circuit court concluded that the interests of St. Mary’s, as in the case of Cabell Huntington,

were adequately represented by the Attorney General. Second, the circuit court ordered the

unsealing of the entire Vaughn Index of the 349 documents. The order was entered as a

sanction because the Attorney General, at the request of the Federal Trade Commission, had

disclosed to the FTC the portion of the Index listing the documents the FTC had sent to the

Attorney General.



       Third, having reviewed the 349 documents in camera, the circuit court ordered the

production of 89 documents. The 89 documents to be disclosed were subject to the redaction

of trade secrets, and, if any such redaction was made, the Attorney General was to identify

the nature of the redacted information and the connection to a claimed exemption. Among

the 89 documents were the original bids which had been submitted to St. Mary’s by other

hospital systems and other interested buyers. See n. 8, supra.



       The October 28, 2016, orders have been stayed pending the outcome of these

consolidated appeals.




                                             11

                                 III. Standard of Review

       Generally, findings of fact are reviewed for clear error and conclusions of law are

reviewed de novo. Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

However, in complex cases such as the one now before us, we have observed that “ostensible

findings of fact, which entail the application of law or constitute legal judgments which

transcend ordinary factual determinations, must be reviewed de novo.” Syl. pt. 1, in part,

State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996). Accord syl. pt. 1,

in part, Manville Pers. Injury Settlement Trust v. Blankenship, 231 W.Va. 637, 749 S.E.2d

329 (2013). Moreover, in W.Va. Reg’l Jail and Corr. Facility Auth. v. Marcum, 239 W.Va.

109, 799 S.E.2d 540, 543 (2017), this Court confirmed that an interpretation of this State’s

Freedom of Information Act is subject to de novo review.



                                      IV. Discussion

                             A. The Investigative Exemption

       The antitrust exemption incorporated into the Freedom of Information Act relied on

by the Attorney General must be viewed in the context of his powers and duties under the

Antitrust Act. In investigating a suspected violation in the form of a monopoly, restraint of

trade or illegal bidding process, the Attorney General is authorized under W.Va. Code, 47-18­

7(a) [1978], of the Antitrust Act to “administer oaths or affirmations, and may subpoena

witnesses, compel their attendance, adduce evidence, and require the production of any


                                             12

matter which is relevant to the investigation.” The Attorney General may direct a local

prosecutor to assist him. Remedies for violations of the Act include injunctive relief, a

penalty and treble damages. Pursuant to W.Va. Code, 47-18-16 [1978], the Antitrust Act

“shall be construed liberally and in harmony with ruling judicial interpretations of

comparable federal antitrust statutes.”



       A necessary component of the Antitrust Act is the investigative exemption set forth

in W.Va. Code, 47-18-7(d) [1978], which states: “The attorney general shall not make public

the name or identity of a person whose acts or conduct he investigates pursuant to this section

or the facts disclosed in the investigation, but this subsection does not apply to disclosures

in actions or enforcement proceedings pursuant to this article.” As the parties agree, the

Antitrust Act’s investigative exemption is incorporated in the Freedom of Information Act

through W.Va. Code, 29B-1-4(a)(5) [2015], i.e., information “specifically exempted from

disclosure by statute.”10


       10
          The comparable federal statute to the nondisclosure provisions of W.Va. Code,
47-18-7(d) [1978], is subsection (h) of 15 U.S.C. § 18a. [2000] concerning “premerger
notification.” Subsection (h) states in part:

              Any information or documentary material filed with the Assistant
       Attorney General or the Federal Trade Commission pursuant to this section
       shall be exempt from disclosure under section 552 of Title 5 [regarding
       public information], and no such information or documentary material may
       be made public, except as may be relevant to any administrative or judicial
       action or proceeding.


                                              13

       In the November 25, 2014, confidentiality agreement executed by St. Mary’s, Cabell

Huntington and the Attorney General, the statutory investigative exemption was expressly

relied upon:


               The Transaction [merger] Information covered by this Agreement shall
       be treated by the Attorney General as if such Transaction Information were
       received pursuant to W.Va. Code § 47-18-7, whether received directly from
       [Cabell Huntington, St. Mary’s and/or the FTC], before or after the execution
       of this Agreement, and the Attorney General agrees not to disclose such
       Transaction Information to any person or entity except as expressly provided
       in this Agreement or W.Va. Code § 47-18-7.11


       In Associated Press v. Canterbury, 224 W.Va. 708, 688 S.E.2d 317 (2009), this Court

held that certain e-mails of a personal nature withheld by a public official from a FOIA

request were not subject to disclosure. We determined that the e-mails were irrelevant to the

conduct of public business and found the e-mails comparable to a note scheduling a family

dinner or a private letter from a friend. We concluded, in Canterbury, that the e-mails were

not “a public record” under the Freedom of Information Act.



With regard to the disclosure of information to the public, this Court has recognized “the
close relationship between the federal and West Virginia FOIA.” Farley v. Worley, 215
W.Va. at 420, 599 S.E.2d at 843.
       11
         In syllabus point 5 of Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985),
we recognized that “[a]n agreement as to confidentiality between the public body and the
supplier of the information may not override the Freedom of Information Act, W.Va.
Code, 29B-1-1 et seq.” However, our holding in these consolidated appeals is not based
on the November 25, 2014, confidentiality agreement. Rather, our holding is based on
the Attorney General’s statutory investigative exemption incorporated in the Freedom of
Information Act through W.Va. Code, 29B-1-4(a)(5).

                                             14

         In Canterbury, the status of the e-mails was determined by a “content analysis” of

what the e-mails actually said, rather than a “context analysis” which could have warranted

disclosure under FOIA based on the interest of the general public in the e-mails. However,

we acknowledged in Canterbury that our cases permit a context-based analysis for writings

that are, in fact, public records, “but which are specifically exempted from disclosure by

FOIA.” 224 W.Va. at 725 n. 18, 688 S.E.2d at 334 n. 18. In other words, a context-based

analysis can be applied in determining whether public records are to be disclosed pursuant

to a FOIA request, but the determination is subject to the specific exemptions of the Freedom

of Information Act listed in W.Va. Code, 29B-1-4 [2015].12



         At the time Canterbury was decided, “public record” was defined in W.Va. Code,

29B-1-2 [1977], as “any writing containing information relating to the conduct of the

public’s business, prepared, owned and retained by a public body.” The later 2015 and 2016

versions of the statute, however, define “public record” as “any writing containing

information prepared or received by a public body, the content or context of which, judged

either by content or context, relates to the conduct of the public’s business.” (emphasis

added)




         12
         See Farley v. Worley, 215 W.Va. at 419-25, 599 S.E.2d at 842-48 (2004)
(decided under the 1977 version of the statute but making clear that a public body cannot
simply refuse a FOIA request without specific justification.).

                                             15

       The “content” versus “context” distinction per se is less significant in this proceeding

because the Attorney General relies on the express investigative exemption set forth in the

Antitrust Act. Although that exemption is broad based, it has its own statutory exceptions

or caveats as indicated below.



       Prior to Steel’s FOIA request, a description of the merger and its prospective

operation were set forth in the original and amended Assurances of Voluntary Compliance.

The Assurances were publically filed by the Attorney General pursuant to statute. See n. 3,

supra. After the FOIA request, the Attorney General provided Steel with copies of a number

of documents relating to the merger. Later, upon analyzing the Vaughn Index, Steel agreed

that in excess of 200 documents were exempt from disclosure. Thereafter, the circuit court

ordered the disclosure of the Vaughn Index itself, as a sanction, and the 89 documents listed

therein.



       Among the 89 documents ordered disclosed were the original bidding documents that

were submitted to St. Mary’s by other hospital systems and other interested buyers. Those

documents reveal the identity of the bidder, the amount of the bid and detailed bid

specifications. Of the documents in question under the FOIA request, the parties’ primary

focus is on the bidding documents. St. Mary’s asserts that the disclosure of the bidding

documents would give its competitors an unfair business advantage whether or not the


                                              16

merger takes place. Steel asserts that it needed to present the bidding documents to the

Health Care Authority. In December 2015, however, Steel unsuccessfully petitioned this

Court for mandamus relief to obtain the bidding documents. During that proceeding, the

Authority indicated that, for its purposes, the original bidding documents were irrelevant.

See n. 8, supra.



       The Antitrust Act, however, provides the Attorney General with an independent

interest in the bidding documents. Pursuant to W.Va. Code, 47-18-3(b)(2) [1978], the

following activities are unlawful:


              A contract, combination or conspiracy between two or more persons
       whereby, in the letting of any public or private contract:
              (A) The price quotation of any bid is fixed or controlled; or
              (B) One or more persons submits a bid intending it to be higher than
       another bid and thus complementary thereto, submits a bid intending it to be
       substantially identical to another bid, or refrains from the submission of a bid.


Consequently, the bidding process and its associated documents are within the scope of the

Attorney General’s investigative powers and, specifically, the investigative exemption of the

Antitrust Act, W.Va. Code, 47-18-7(d) [1978].13


       13
         To be clear, the Antitrust Act’s investigative exemption, incorporated in the
Freedom of Information Act through W.Va. Code, 29B-1-4(a)(5) [2015], is to be
distinguished from the investigation-related FOIA exemption set forth in W.Va. Code,
29B-1-4(a)(4) [2015], which exempts: “Records of law-enforcement agencies that deal
with the detection and investigation of crime and the internal records and notations of
such law-enforcement agencies which are maintained for internal use in matters relating

                                              17

       Steel’s FOIA request to obtain “all public records and incoming and outgoing

correspondence relating to the proposed merger” directly implicates the Attorney General’s

investigative exemption. We hold that the West Virginia Freedom of Information Act, W.Va.

Code, 29B-1-4(a)(5) [2015], which excepts from public accessibility “information

specifically exempted from disclosure by statute,” incorporates the investigative exemption

from disclosure of information set forth in the West Virginia Antitrust Act, W.Va. Code, 47­

18-7(d) [1978]. The investigative exemption is mandatory in specifying that the Attorney

General “shall not” make public the name or identity of a person whose acts or conduct he

investigates or “the facts” disclosed in the investigation. Nevertheless, the Legislature has

provided an exception or caveat in that the investigative exemption in W.Va. Code, 47-18­

7(d) [1978], “does not apply to disclosures in actions or enforcement proceedings pursuant

to this article.”



       An additional caveat pertains to the Assurance of Voluntary Compliance which must

be publically filed pursuant to W.Va. Code, 47-18-22 [1978]. However, in the current matter,

the Assurances of Voluntary Compliance concerning the merger provided that, in the event

the Attorney General were to request further information, the request would be deemed

“made in the investigation of a potential violation of state and/or federal antitrust laws and



to law enforcement.” See, e.g., Ogden Newspapers, Inc. v. City of Williamstown, 192
W.Va. 648, 453 S.E.2d 631 (1994) (discussing subsection (4) in the context of a police
incident report). Subsection (4) is not relevant to the current matter.

                                             18

as such both the request and any response thereto, including documents or things produced,

are subject to confidentiality provisions contained in state and/or federal law.”



       This Court finds W.Va. Code, 47-18-7(d) [1978], to be free from ambiguity in its

admonition that the Attorney General “shall not” make public the name or identity of a

person whose acts or conduct he investigates or “the facts” disclosed in the investigation.

Syllabus point 2 of Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970), makes

clear: “Where the language of a statute is free from ambiguity, its plain meaning is to be

accepted and applied without resort to interpretation.” Accord syl. pt. 5, Leggett v. EQT

Prod. Co., 239 W.Va. 264, 800 S.E.2d 850, cert. denied, 138 S.Ct. 472 (2017). See syl. pt.

1, Nelson v. W.Va. Pub. Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982) (“It is

well established that the word ‘shall,’ in the absence of language in the statute showing a

contrary intent on the part of the Legislature, should be afforded a mandatory connotation.”);

accord, syl. pt. 10, Thomas v. McDermitt, 232 W.Va. 159, 751 S.E.2d 264 (2013).



       A denial of the full import of the Attorney General’s statutory exemption would place

investigations of illegal conduct under the Antitrust Act at a disadvantage and would be

contrary to the public’s interest in the enforcement of the law. We therefore reverse the




                                             19

October 28, 2016, order which directed the Attorney General to produce the 89 documents.14



                                  B. The Vaughn Index

       This Court reverses the October 28, 2016, order which unsealed the entire Vaughn

Index of 349 documents and allowed its production. The order was entered as a sanction

against the Attorney General for sharing part of the Index with the Federal Trade

Commission.



       During the investigations of the proposed merger, the Federal Trade Commission

transferred a number of documents it received to the Attorney General. The FTC transferred

the documents on the condition that the material be kept confidential and used only for law

enforcement purposes. Later, at the FTC’s request, the Attorney General provided the FTC

with a redacted version of the Vaughn Index which listed the documents the FTC had sent

to the Attorney General. Finding that the Attorney General had, thus, revealed a portion of

the Index without authorization, the circuit court entered the sanction.



       14
          As a result of this holding, this Court need not address the additional exemption
raised by the Attorney General under W.Va. Code, 29B-1-4(a)(8) [2015], of the Freedom
of Information Act which provides for the nondisclosure of “internal memoranda or
letters received or prepared by any public body.” We note, however, that the Attorney
General’s conclusion that the merger was in the best interests of the State of West
Virginia was not effectively made until the amended Assurance of Voluntary Compliance
was filed on November 4, 2015, after the Attorney General received the documents in
question.

                                             20

       This Court is of the opinion that the unsealing of the Vaughn Index, thereby permitting

public access to the list of 349 documents, was inappropriate, given the relatively minor

nature of the Attorney General’s transgression. The record before us includes the affidavit

of the Senior Deputy Attorney General which states that the materials provided to the FTC

only referenced FTC documents.15 No additional information contained in the Vaughn Index

was provided.



       Pursuant to W.Va. Code, 47-18-14 [1978], of the Antitrust Act, the Attorney General

“may cooperate with officials of the federal government and the several states in the

enforcement of this article.” Moreover, the purpose of a Vaughn Index is limited to matters

of litigation and serves as a resource for the benefit of the trial court. See Associated Press

v. Canterbury, 224 W.Va. at 713, 688 S.E.2d at 322 (The purpose of the Vaughn Index is to

allow the circuit court to determine the validity of the government’s claimed exemptions

without the court having to physically examine each document.). See also Farley v. Worley,


       15
          The Attorney General’s transgression was providing the FTC with a portion of
the sealed Vaughn Index without first requesting authorization or leave from the circuit
court in the form of a motion or otherwise. See, e.g., W.Va. R. Civ. P. 26(c) (providing
that a deposition sealed under a protective order “be opened only by order of the court”).
The affidavit of the Senior Deputy Attorney General states that the providing of the
portion of the Index was in compliance with W.Va. Code, 47-18-14 [1978], which
authorizes cooperation between the Attorney General and the federal government in the
enforcement of antitrust laws. According to the affidavit, there was no intent to violate
the order placing the Vaughn Index under seal. However, the Senior Deputy Attorney
General also set forth an apology in the affidavit, in the event the circuit court were to
take a different view of the disclosure.

                                              21

215 W.Va. at 426, 599 S.E.2d at 849 (The Vaughn Index “is implicated by FOIA litigation ­

not simply by a FOIA denial.” It is specifically prepared for litigation purposes.).



       Here, no contents of any documents were disclosed, and the Federal Trade

Commission only received a portion of the Index listing its own material. This Court

concludes that the unsealing of the Vaughn Index constituted an abuse of discretion. See

State ex rel. Richmond Am. Homes of W.Va., Inc. v. Sanders, 226 W.Va. 103, 110, 697

S.E.2d 139, 146 (2010) (An abuse of discretion standard is applied in reviewing the

imposition of sanctions.).



       The October 28, 2016, order which unsealed the Vaughn Index is reversed.

Furthermore, having reversed the orders of the circuit court which directed production of the

89 documents and the Vaughn Index, the petitions for appeal filed by St. Mary’s are moot.



                             C. Exemption From Antitrust Laws

       Finally, the Attorney General contends that the circuit court committed error in

concluding that the West Virginia Health Care Authority Act “exempts the subject

acquisition from the state antitrust laws enforced by the Attorney General.” The statute in

question, W.Va. Code, 16-29B-26 [2016], effective March 12, 2016, provides:




                                             22

              Actions of the board [of the West Virginia Health Care Authority] shall
       be exempt from antitrust action under state and federal antitrust laws. Any
       actions of hospitals and health care providers under the board’s jurisdiction,
       when made in compliance with orders, directives, rules, approvals or
       regulations issued or promulgated by the board, shall likewise be exempt.
              It is the intention of the Legislature that this chapter shall also
       immunize cooperative agreements approved and subject to supervision by the
       authority and activities conducted pursuant thereto from challenge or scrutiny
       under both state and federal antitrust law: Provided, That a cooperative
       agreement that is not approved and subject to supervision by the authority shall
       not have such immunity.


       “Cooperative agreement” is defined in W.Va. Code, 16-29B-28(a)(2) [2016], also

effective March 12, 2016, as including, inter alia, an agreement providing for the

consolidation, by merger or other combination, of facilities and services traditionally offered

by hospitals or other health care providers. Subsection (c) of W.Va. Code, 16-29B-28 [2016],

provides that, when such an agreement might be anticompetitive within the meaning of the

antitrust laws, “the Legislature believes it is in the state’s best interest to supplant such laws

with regulatory approval and oversight by the Health Care Authority as set out in this

article.” Subsection (f) of W.Va. Code, 16-29B-28 [2016], states that the Authority “shall

consult with the Attorney General of this state regarding his or her assessment of whether or

not to approve the proposed cooperative agreement.”16




       16
        Later amendments to W.Va. Code, 16-29B-26 [2016] and W.Va. Code, 16-29B­
28 [2016], are not applicable herein.

                                               23

       Here, the bidding process concerning the proposed merger of St. Mary’s and Cabell

Huntington; the commencement of the federal and State antitrust investigations; the filing

of the two Assurances of Voluntary Compliance; Steel’s FOIA request; and the filing of

Steel’s complaint in the circuit court to enjoin the Attorney General from withholding

documents all occurred prior to the March 12, 2016, enactment of W.Va. Code, 16-29B-26

[2016] and W.Va. Code, 16-29B-28 [2016]. Nothing suggests that those statutes have

retroactive application regarding the investigative exemption asserted by the Attorney

General. This Court held in syllabus point 4 of Taylor v. State Comp. Comm’n., 140 W.Va.

572, 86 S.E.2d 114 (1955): “The presumption is that a statute is intended to operate

prospectively, and not retrospectively, unless it appears, by clear, strong and imperative

words or by necessary implication, that the Legislature intended to give the statute retroactive

force and effect.” Accord syl. pt. 3, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va.

80, 576 S.E.2d 807 (2002), cert. denied, 539 U.S. 942 (2003).



       The amended Assurance of Voluntary Compliance filed in 2015 requires St. Mary’s

and Cabell Huntington to observe a number of conditions for a period of ten years following

the merger’s consummation. The requirement to enter into an Assurance of Voluntary

Compliance and its public filing are found in the Antitrust Act. The terms thereof in the

current matter reflect the Attorney General’s investigative authority and the confidentiality

of the information obtained.


                                              24

          The effect of the circuit court’s ruling would completely eliminate the Attorney

General’s investigative exemption found in W.Va. Code, 47-18-7(d) [1978], in relation to the

proposed merger of St. Mary’s and Cabell Huntington. However, the Attorney General’s

duties of confidentiality in securing information regarding the merger predate the 2016

statutes. The ruling of the circuit court regarding the 2016 statutes is, therefore, reversed.



                                        V. Conclusion

          The orders entered by the circuit court on October 28, 2016, are reversed, and this

action is remanded to the circuit court for the entry of an order dismissing Steel’s FOIA

action.



                                                                   Reversed and Remanded.




                                              25

