        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2017 Term

                                 _____________                        FILED
                                                                   April 26, 2017
                                  No. 15-1174                         released at 3:00 p.m.
                                                                    RORY L. PERRY, II CLERK

                                 _____________                    SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA




                  WEST VIRGINIA REGIONAL JAIL AND

                 CORRECTIONAL FACILITY AUTHORITY,

                              Petitioner



                                       V.


                             SHANE R. MARCUM,
                                 Respondent

  ____________________________________________________________________

               Appeal from the Circuit Court of Kanawha County

                       Honorable Joanna I. Tabit, Judge

                          Civil Action No. 15-C-1668


                               REVERSED

  ____________________________________________________________________

                             Submitted: April 4, 2017
                               Filed: April 26, 2017


Patrick Morrisey                                  Paul M. Stroebel
Attorney General                                  Stroebel & Johnson, PLLC
Benjamin Freeman                                  Charleston, West Virginia
Assistant Attorney General                        Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner
Leah Perry Macia
West Virginia Regional
Jail Authority, Petitioner

Vincent Trivelli                                 David Allen Barnette
Morgantown, West Virginia                        Vivian H. Basdekis
Attorney for Amicus Curiae                       Jackson Kelly, PLLC
Communications Workers of America,               Charleston, West Virginia
AFL-CIO                                          Attorneys for Amicus Curiae
                                                 West Virginia Broadcasters’
Patrick Morrisey                                 Association
Attorney General
John H. Boothroyd
Assistant Attorney General
Charleston, West Virginia
Attorneys for Amicus Curiae
West Virginia Division of Corrections

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE WORKMAN concurs in part, and dissents in part, and reserves the right to
file a separate opinion.
                               SYLLABUS BY THE COURT


               1.     “Where the issue on an appeal from the circuit court is clearly a question

of law or involving an interpretation of a statute, we apply a de novo standard of review.”

Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).



               2.     “The 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].” Syllabus point 4,

Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).



               3.     “The party claiming exemption from the general disclosure requirement

under West Virginia Code § 29B-1-4 has the burden of showing the express applicability of

such exemption to the material requested.” Syllabus point 7, Queen v. West Virginia

University Hospitals, Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).



               4.     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, because it displays

part of the design of a correctional facility and the operational procedures of personnel

relating to the management of inmates, such that, if disclosed, could be used by an inmate

to escape from a facility or to cause injury to another inmate, resident or to facility personnel.


                                                i
Davis, Justice:

              The Petitioner in this matter, the West Virginia Regional Jail and Correctional

Facility Authority (“the Regional Jail”) brought this appeal from an order of the Circuit Court

of Kanawha County. The circuit court’s order required the Regional Jail turn over a

videotape to the Respondent, Shane Marcum, pursuant to his request under the West Virginia

Freedom of Information Act (“FOIA”).1 In this appeal, the Regional Jail contends that the

videotape is exempt from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2)

and (19) (2016) (Supp. 2016). After a careful review of the briefs and the appendix record,

and listening to the argument of the parties, we reverse.2



                                              I.


                       FACTUAL AND PROCEDURAL HISTORY


              The relevant facts in this proceeding are not in dispute. On February 27, 2015,

Mr. Marcum was being held on felony charges in the Western Regional Jail in Cabell

County, West Virginia. For reasons that have not been made clear by the parties, it was

determined by authorities at the facility that Mr. Marcum had to be physically removed from

his cell. At least four correctional officers were initially involved in what is called a “cell

              1
                  See W.Va. Code § 29B-1-1 et seq.
              2
              This Court is grateful for the amicus curiae briefs filed by the West Virginia
Broadcasters’ Association; Communications Workers of America, AFL-CIO; and West
Virginia Division of Corrections. We value the participation of the amici and have
considered their briefs in conjunction with the briefs of the parties.

                                              1

extraction.”3 To carry out the cell extraction, the officers tossed two flash bang grenades into

the cell.4 After tossing the grenades into the cell, the officers removed Mr. Marcum from his

cell. The cell extraction and events immediately following were recorded on videotape by

the Regional Jail.



              As a result of alleged injuries he received during the cell extraction, Mr.

Marcum filed a civil action against the Regional Jail in circuit court. That proceeding was

subsequently removed to federal court, where it is now pending. During the proceeding in

federal court, Mr. Marcum requested a copy of the videotape that recorded his cell extraction.

The Regional Jail agreed to provide a copy of the videotape “subject to a protective order.”

Mr. Marcum refused to accept the videotape under protective order conditions. Instead, Mr.

Marcum requested the videotape pursuant to FOIA. By letter dated July 24, 2015, the

Regional Jail refused to turn over the videotape under FOIA on the grounds that it was


              3
                “A cell extraction is forcible removal of an inmate from a cell, utilized when
an inmate has either refused to comply with stated orders, or is engaged in harmful behavior
towards himself or other inmates.” Nina Frank, Such Visible Fiction: The Expansion of Scott
v. Harris to Prisoner Eighth Amendment Excessive Force Claims, 32 Cardozo L. Rev. 1481,
1514 (2011).
              4
                 See Boyd v. Benton County, 374 F.3d 773, 776 (9th Cir. 2004) (“The
flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and
loud noise upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets,
creating a window of time in which police officers can safely enter and secure a potentially
dangerous area.”); Terebesi v. Torreso, 764 F.3d 217, 225 n.4 (2d Cir. 2014) (“The
grenades . . . go by a variety of names, including ‘flash grenade,’ ‘stun grenade,’ ‘concussion
grenade,’ ‘distraction device,’ and the colloquial ‘flashbang.’”).

                                               2

exempt under W. Va. Code §§ 29B-1-4(a)(2) and (19).



              In September 2015, Mr. Marcum filed a complaint for preliminary injunction

and declaratory relief against the Regional Jail in circuit court. The complaint sought a court

order requiring the Regional Jail turn over the cell extraction videotape under FOIA.

Subsequent to a hearing on the matter, the circuit court entered an order on November 4,

2015, requiring the Regional Jail to produce the videotape to Mr. Marcum. This appeal of

that order followed.



                                              II.


                                STANDARD OF REVIEW


              In this proceeding, we are called upon to review a circuit court order that

determined FOIA did not exempt disclosure of a cell extraction videotape. This issue

presents a de novo review standard “because [it] requires an interpretation of West Virginia’s

FOIA[.]” Charleston Gazette v. Smithers, 232 W. Va. 449, 460, 752 S.E.2d 603, 614 (2013).

We have long recognized that “[w]here the issue on an appeal from the circuit court is clearly

a question of law or involving an interpretation of a statute, we apply a de novo standard of

review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).




                                              3

                                              III.


                                        DISCUSSION


              The Regional Jail contends that its videotape of the cell extraction of Mr.

Marcum is exempted from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2)

and (19). Mr. Marcum argues that there is no language in either of the statutory provisions

that exempt release of the videotape.



              We begin by observing the framework for our statutory analysis. This Court

has long held that “‘[w]here the language of a statute is clear and without ambiguity the plain

meaning is to be accepted without resorting to the rules of interpretation.’” Huffman v. Goals

Coal Co., 223 W. Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v.

Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968)). On the other hand, “[a] statute that is

ambiguous must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186

W. Va. 693, 414 S.E.2d 454 (1992). Further, as a general matter, “the words of a statute are

to be given their ordinary and familiar significance and meaning[.]” Amick v. C & T Dev.

Co., Inc., 187 W. Va. 115, 118, 416 S.E.2d 73, 76 (1992). “It is not for this Court arbitrarily

to read into [a statute] that which it does not say. Just as courts are not to eliminate through

judicial interpretation words that were purposely included, we are obliged not to add to

statutes something the Legislature purposely omitted.” Banker v. Banker, 196 W. Va. 535,

546-47, 474 S.E.2d 465, 476-77 (1996).


                                               4

              As a general matter, “FOIA requires the release of public records upon

request.” Highland Min. Co. v. West Virginia Univ. Sch. of Med., 235 W. Va. 370, 380, 774

S.E.2d 36, 46 (2015). See also W. Va. Code § 29B-1-4(a) (“There is a presumption of public

accessibility to all public records[.]”). It is expressly provided under W. Va. Code

§ 29B-1-3(a) (2015) (Repl. Vol. 2015) 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

[W. Va. Code § 29(B)-1-4] of this article.” It has been recognized that FOIA “seeks to

permit access to official information long shielded unnecessarily from public view and

attempts to create a judicially enforceable public right to secure such information from

possibly unwilling official hands.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151­

52, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989) (internal quotations and citation omitted).

The presumption of disclosure of public records under FOIA is qualified by twenty-one

categories of public records that are exempt from disclosure pursuant to W. Va. Code §

29B-1-4(a). The decisions of this Court have been clear in holding 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). Accord Farley v. Worley, 215 W. Va. 412, 420, 599 S.E.2d 835, 843

(2004). It also has been held that “[t]he party claiming exemption from the general

disclosure requirement under West Virginia Code § 29B-1-4 has the burden of showing the


                                             5

express applicability of such exemption to the material requested.” Syl. pt. 7, Queen v. West

Virginia Univ. Hosps., Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).



              Although the Regional Jail raised two provisions under FOIA as exempting

disclosure of the cell extraction videotape, the circuit court’s order addressed only the

exemption under W. Va. Code § 29B-1-4(a)(19). Because of our resolution of this provision,

we need not address the provision the circuit court omitted, W. Va. Code § 29B-1-4(a)(2).



              West Virginia Code § 29B-1-4(a)(19) was added to FOIA in 2009. This is the

first opportunity we have had to review the provision. The text of the provision sets out the

following:

                     (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:

                     ....

                      (19) Records of the Division of Corrections, Regional
              Jail and Correctional Facility Authority and the Division of
              Juvenile Services relating to design of corrections, jail and
              detention facilities owned or operated by the agency, and the
              policy directives and operational procedures of personnel
              relating to the safe and secure management of inmates or
              residents, that if released, could be used by an inmate or resident
              to escape a facility, or to cause injury to another inmate, resident
              or to facility personnel[.]

In the context of the issue presented to this Court, we find no ambiguity in the provision. It

                                               6

is apparent that this provision seeks to maintain the safety and security at correctional

facilities by preventing public access to records that could be used by an inmate to escape

from a facility, or to cause injury to someone in the facility.5 The Regional Jail contends that

the contents of the cell extraction videotape satisfies the exemption under W. Va. Code

§ 29B-1-4(a)(19), because it “contains numerous images of the inside of the jail and the

movement of various jail personnel, which, if released, would compromise the safety and

security of the facility and the inmates and staff therein.”



              The issue of whether a videotape of a cell extraction of an inmate is exempt

from disclosure, under public record statutes similar to our FOIA, has been addressed only

by a few courts. The federal district court in Zander v. Department of Justice, 885 F. Supp.

2d 1 (D.D.C. 2012), is one of the few courts to squarely address the issue.6 The plaintiff in

Zander, a former federal prisoner, filed a complaint under the federal FOIA to require the

release of records relating to his incarceration. Among the records sought was a videotape

of his cell extraction by correctional officers. A federal magistrate held a hearing on the

              5
               Mr. Marcum contends that the videotape should not be exempted from
disclosure under the provision because a videotape is not specifically mentioned in the
statute. We reject this argument because the statute does not list any specific type of record
by name. The statute speaks in broad terms that addresses records that could be used for an
escape from a facility or to cause harm to someone in the facility.
              6
              See Daily Gazette Co. v. West Virginia Dev. Office, 198 W. Va. 563, 571, 482
S.E.2d 180, 188 (1996) (“Recognizing the close relationship between the federal and West
Virginia FOIA, we note, in particular, the value of federal precedents in construing our state
FOIA’s parallel provisions.”).

                                               7

matter and issued a recommendation that the cell extraction videotape be released to the

plaintiff in a redacted form, so that the faces of the officers involved would not be seen. The

defendants in the case, the Department of Justice and the Bureau of Prisons, objected to the

magistrate’s recommendation. The defendants argued before the district court judge that,

under FOIA, 5 U.S.C. § 552(b)(7)(F), a public record like the cell extraction videotape was

exempt from disclosure in any form. This provision of the federal FOIA exempted from

disclosure “‘records or information compiled for law enforcement purposes, but only to the

extent that the production of such law enforcement records or information . . . could

reasonably be expected to endanger the life or physical safety of any individual.’” Zander,

885 F. Supp. 2d at 6-7. The defendants made the following specific argument:

              Defendants maintain that the videotape sought by Plaintiff
              shows BOP’s Calculated Use-of-Force Team enter the
              Plaintiff’s cell, apply restraints, and remove him from the cell,
              depicting the equipment, tactics, movements, and procedures
              used during the incident. Defendants argue that producing the
              video, even with the faces of the officers obscured, would
              nonetheless disclose the equipment, tactics, and procedures
              utilized by the BOP Calculated Use-of-Force Team and that
              such disclosure could reasonably be expected to endanger the
              lives or physical safety of any BOP officers who subsequently
              utilize those techniques and equipment in the course of their
              duties. Furthermore, defendants contend that the video should
              be withheld because obliterating the protected information
              would be burdensome to the agency and the remaining
              information would be of little value.

Zander, 885 F. Supp. 2d at 7 (internal quotations and citations omitted). The district court

judge agreed with the defendants and rejected the magistrate’s recommendation. The district


                                              8

court concluded as follows:

                     The Court finds that the video is properly withheld under
              FOIA exemption 7(F). Exemption 7(F) most clearly applies to
              protect law enforcement officials from disclosure of information
              that could prove threatening to them. . . .

              [T]he Court concludes that the agency’s assessment of the
              possible danger to law enforcement officials from disclosing the
              video is abundantly reasonable. Removing prisoners from their
              cells presents clear dangers to the law enforcement officers who
              are charged with the task. Disclosure of a recording of a “cell
              extraction” presents the possibility that other prisoners will learn
              the methods and procedures utilized by BOP officials, and that
              this information might be used to thwart the safe application of
              these techniques in the future. The Court does not mean to
              suggest that plaintiff himself presents such a danger, but
              dissemination to the public at large does present clear risks to
              law enforcement officials.

Zander, 885 F. Supp. 2d at 7-8 (internal citations omitted).             See also Center for

Constitutional Rights v. Central Intelligence Agency, 765 F.3d 161, 169 (2d Cir. 2014)

(finding FOIA exemption precluded release of cell extraction videotapes of prisoners at

Guantanamo Bay Naval Base); Gabrion v. United States Dep’t of Justice, No. 2:15-CV-24­

WTL-DKL, 2016 WL 5121987, at *7 (S.D. Ind. Sept. 21, 2016) (“The Court finds that

Exemption 7(F) applies, as disclosure of the video would present clear risks to law

enforcement officials. Other prisoners might learn this information and use it in the future.”);

International Counsel Bureau v. United States Dep’t of Def., 906 F. Supp. 2d 1, 7 (D.D.C.

2012) (finding FOIA exemption precluded release of cell extraction videotapes of prisoners

at Guantanamo Bay Naval Base); In Re: Ben Richard, Jr., No. 13-ORD-022, 2013 WL


                                               9

565014 (Ky. Op. Att’y Gen. February 5, 2013) (“Release of the requested video footage is

a security threat because it can be viewed by others to assess the technology and/or

procedures used by LMDC [Louisville Metropolitan Department of Corrections] and other

law enforcement agents in the handling of inmates, it may be viewed to develop strategies

used to overtake LMDC’s officers and possibly other law enforcement agents, and the

footage can be used to study the camera’s range of sight–what is within the camera’s view

and the areas outside of the camera’s image which can be used to smuggle contraband and

other strategies of takeover or escape.”); Dilworth v. Westchester Cty. Dep’t of Correction,

940 N.Y.S.2d 146, 149 (2012) (“[T]he Department established, through the Sergeant’s

affidavit, that disclosure of the remaining electronic video surveillance records requested by

the petitioner could expose [surveillance] limitations and, thereby, endanger the life or safety

of any person.”).



              Both parties in this proceeding contend that the decision in Ballard v.

Department of Corr., 122 Mich. App. 123, 332 N.W.2d 435 (1982), supports their respective

opposite positions in this appeal.7 The plaintiff in Ballard filed an action under Michigan’s


              7
               Mr. Marcum also cited in passing to the decision in Dhiab v. Obama, 70
F. Supp. 3d 486 (D.D.C. 2014) as support for disclosure of his cell extraction videotape.
First off, the federal decision in Dhiab did not involve disclosure of a cell extraction
videotape under the federal FOIA. In that case, a detainee at the United States Naval Base,
Guantanamo Bay, Cuba, filed a habeas corpus petition seeking, among other things, to
prevent the federal government from force-feeding him. During that proceeding, the
                                                                              (continued...)

                                              10

              7
               (...continued)
detainee’s attorney obtained, under seal, copies of videotapes of the detainee being extracted
from his cell and force-fed. The videotapes were classified by the government as
“SECRET,” because their public disclosure could harm national security. Several news
agencies intervened in the proceeding and sought disclosure of the videotapes. The
intervenors sought disclosure under the First Amendment and common law. The district
court ordered the videotapes disclosed, under the First Amendment, in a redacted form to
protect information identifying government personnel. The government eventually appealed
the disclosure order in the restyled opinion of Dhiab v. Trump, No. 16-5011, 2017 WL
1192911 (D.C. Cir. March 31, 2017). The appellate court reversed the district court’s
disclosure order for reasons that included the following:

              [T]he intervenors are unable to cite a single case in which a
              court–other than the district court here–found that the First
              Amendment compelled public disclosure of properly classified
              national security information in a habeas proceeding, or in any
              other type of civil proceeding.

                     ....

                     The government identified multiple ways in which
              unsealing these recordings would likely impair national security.
              Two of these risks–detainees triggering forcible encounters and
              developing countermeasures–together and individually, were
              enough to prevent these recordings from becoming public. The
              government's declarations explained that the recordings would
              enable detainees, assisted by outside militants, to develop
              countermeasures to the guards’ cell-extraction and enteral­
              feeding techniques. The district court dismissed this prospect
              because the government had already released substantial
              information about these procedures and the detainees were
              already intimately familiar with them. The government’s
              declarations contradict the court’s assessment. The recordings
              of the feeding process contain significantly more information
              than previously released imagery, and the publicly released
              information about cell extractions was outdated and described
              techniques not being used at Guantanamo. The recordings also
                                                                                  (continued...)

                                             11

FOIA in order to obtain a copy of a film showing him being forcefully removed from his cell.

The trial court ordered the defendant to turn over the film. The defendant appealed and

argued that the film was exempted from disclosure under a provision in FOIA that provided

for nondisclosure of a record if it “would prejudice a public body’s ability to maintain the

physical security of custodial or penal institutions occupied by persons arrested or convicted

of a crime or admitted because of a mental disability, unless the public interest in disclosure

under this act outweighs the public interest in nondisclosure.” Ballard, 122 Mich. App. at

124, 332 N.W.2d at 436. The defendant contended that release of the film “would prejudice

its ability to maintain the physical security of its institutions because such films may reveal

the methods, tactics, and equipment used to restrain and subdue prisoners and because, by


              7
               (...continued)

              show elements of the procedures that take place outside the

              detainee’s presence or shielded from the detainee or otherwise

              obstructed from view. . . .


                     The government’s expert judgment was that militants
              could study the recordings repeatedly and slowly, looking for
              “patterns” of “mistakes” not identifiable from first-hand
              experience or written descriptions. . . . When detainees resist
              what are already hazardous procedures for the guards, this could
              further endanger government personnel at Guantanamo. Guards
              have been kicked, grabbed, punched, knocked down, bitten, and
              sprayed with bodily fluids. The government’s interest in
              ensuring safe and secure military operations clearly overcomes
              any qualified First Amendment right of access.

Dhiab, 2017 WL 1192911, at *6-7 (internal quotations and citations omitted). To the extent
that Dhiab has any relevancy to our FOIA analysis, it supports the Regional Jail’s position
that the cell extraction videotape should be exempted from disclosure.

                                              12

studying such films, prisoners might learn to circumvent such methods, tactics, and

equipment.” Id. at 125, 332 N.W.2d at 436. The appellate court determined that the statute

imposed a case-by-case approach to the disclosure of cell extraction film. It was said that,

              the balancing test contained in the exemption at issue here
              suggests that a case-by-case approach is required because it
              reveals a legislative intent to accommodate, insofar as it is
              possible, the respective public interests in institutional security
              and freedom of information. If the balancing test must be
              performed with generalizations rather than specifics, there will
              be cases in which one of these public interests must be
              sacrificed without any countervailing advancement of the other
              public interest.

Id. at 127, 332 N.W.2d at 437. Applying the balancing test to the facts of the case, the

appellate court agreed with the trial court that the cell extraction film did not threaten the

security of the institution, because it “showed only the use of a mattress and overwhelming

manpower to subdue plaintiff[.]” Id. at 125, 332 N.W.2d at 436.8


              8
                Several other cases are cited in Mr. Marcum’s brief that are not relevant. The
cases cited do not involve disclosure of cell extraction videos pursuant to public disclosure
statutes. All of the cases cited simply involve the admission into evidence of cell extraction
videos during criminal proceedings or at proceedings against correction officers. See
McAlister v. State Pers. Bd., No. FO68970, 2015 WL 1541107 (Cal. Ct. App. April 1, 2015)
(administrative proceeding); Department of Pub. Safety & Corr. Servs. v. Cole, 103 Md. App.
126, 652 A.2d 1159 (1995), rev’d, 342 Md. 12, 672 A.2d 1115 (1996) (same); Ohio Dep’t
of Rehab. & Corr. v. Price, No. 10AP-260, 2010 WL 4683571 (Ohio Ct. App. Nov. 18,
2010) (same); Harper v. Ohio Dep’t of Rehab. & Corr., No. 08 MA 259, 2010 WL 1316236
(Ohio Ct. App. March 30, 2010) (same); Collins v. Ohio Dep’t of Rehab. & Corr., No.
2004-04370, 2009 WL 1433447 (Ohio Ct. Cl. May 20, 2009) (excessive force claim brought
by inmate); Hawkins v. State Civil Serv. Comm’n, No. 1386 C.D. 2013, 2014 WL 2447213
(Pa. Commw. Ct. May 30, 2014) (administrative proceeding); State v. Woolbert, 181 Vt. 619,
926 A.2d 626 (2007) (probation revocation); State v. Magett, 355 Wis. 2d 617, 850 N.W.2d
                                                                                 (continued...)

                                              13

              We are not persuaded by the decision in Ballard, because Michigan’s FOIA

statute expressly permitted the release of information like a cell extraction videotape under

a balancing test. West Virginia’s FOIA provision at issue, W. Va. Code § 29B-1-4(a)(19),

does not contain a balancing test for determining whether to disclose a record that could be

used “by an inmate or resident to escape a facility, or to cause injury to another inmate,

resident or to facility personnel.” Our statute provides a blanket prohibition against

disclosure of any record coming within its exemption. Consequently, we believe the decision

in Zander is persuasive in understanding and applying W. Va. Code § 29B-1-4(a)(19).



              In the instant case the trial court succinctly described the contents of the cell

extraction videotape as follows:

                      12. The video at issue in the instant case depicts four
              individuals approaching and entering a common area of the jail.
              One of [the] individuals shouts the Petitioner’s name and
              instructs him to “[g]et on the floor.” The four men proceed
              upstairs to the Petitioner’s cell, and one of the m[e]n bangs on
              the cell door. One of the men throws a flash bang grenade into
              the cell. Then, the same individual throws another flash bang
              grenade into the cell. The Petitioner is again instructed to “[g]et
              on the floor.” Once the fumes from the explosions dissipate,
              two individuals enter the cell and restrain the Petitioner while
              another watches guard. The group of four individuals appears
              to be joined by others, and Petitioner is then carried out of his
              cell and down the stairs to the common area of the facility,
              where he is placed on a gurney. He is then pushed through the


              8
               (...continued)
42 (2014) (trial); State v. Lindell, 296 Wis. 2d 418, 722 N.W.2d 399 (2006) (same).

                                              14

              hallway, apparently to medical, where heath care personnel
              appear to be checking his vital signs. The Petitioner is then
              taken outside and although dark, it appears that he is being
              placed into a vehicle for transport.9



              It is quite clear from the circuit court’s description that the videotape identifies

the correction officers making the cell extraction, shows their equipment, shows their

location before and during the entry of the cell, and reveals the path from the cell to other

areas in the facility, including a door that leads to a parking area of the facility. We do not

believe that the legislature intended such information to be easily accessed by the public

through FOIA, because it discloses information involving the design of the facility and

operational procedures of personnel relating to the safe and secure management of inmates,

which could be used for an escape or to cause injury.10



              After a mature consideration of the issue, we now hold that, pursuant to W. Va.

Code § 29B-1-4(a)(19), disclosure of a videotape of the cell extraction of an inmate is


              9
               This Court’s independent review of the videotape confirmed the trial court’s
description of events.
              10
                 It was correctly pointed out in the amicus brief of the Division of Corrections
that “[i]f an inmate or inmate accomplice . . . requests and gets a copy of video surveillance
of the transport area and or perimeter area of the regional jail, an inmate has videotape
showing a potential escape route.” See, e.g., Black v. Swoboda, No. 95-2654-FT, 1996 WL
593827, *1 n.5 (Wis. Ct. App. Oct. 17, 1996) (“The Department of Corrections’ policy
precludes providing requesters with a copy of the [cell extraction] tape to prevent an analysis
of the correctional institution’s security precautions, procedures and capabilities.”).

                                               15

prohibited, because it displays part of the design of a correctional facility and the operational

procedures of personnel relating to the management of inmates, such that, if disclosed, could

be used by an inmate to escape from a facility or to cause injury to another inmate, resident

or to facility personnel.11 In view of our holding, it is clear that the circuit court committed

error in ordering the disclosure of the cell extraction videotape.12




              11
                Mr. Marcum’s brief indicates that his counsel has in the past requested “jail
videos” from the Regional Jail, and that such videos were produced without a protective
order. We are not concerned with any past experience of counsel in obtaining jail videos
from the Regional Jail. Our concern is with the application of W. Va. Code § 29B-1-4(a)(19)
on the release of cell extraction videotapes.
              12
                 We should note that, even though the videotape is exempt from disclosure
under FOIA, this does not preclude its disclosure under the discovery rules in a civil lawsuit.
See Syl. pt. 2, Maclay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000) (“The provisions of
this state’s Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (1998), which
address confidentiality as to the public generally, were not intended to shield law
enforcement investigatory materials from a legitimate discovery request when such
information is otherwise subject to discovery in the course of civil proceedings.”). See also
Wagner v. Warden, Civ. Action No. ELH-14-791, 2016 WL 7178297, at *13 (D. Md. Dec.
8, 2016) (“Wagner seeks discovery, among other things, of the video recording of his cell
extraction. . . . Wagner is entitled to conduct some discovery.”); Hyatt v. Rock, Civ. No.
9:15-CV-0089 (DNH/DJS), 2016 WL 6820378, at *6 (N.D.N.Y. Nov. 18, 2016) (“As to
Demand No. 67, any video of the cell extraction on May 12, 2012 shall be provided to the
Plaintiff for viewing, if that has not been done already.”). Such sensitive information may
be disclosed in a civil lawsuit because a trial court can impose restrictions on its
dissemination and use through a protective order. As we noted previously, the Regional Jail
was prepared to turn over the videotape under a protective order. Obviously our holding
does not remove this offer from the table.

                                               16

                                            IV.


                                     CONCLUSION


              The circuit court’s order of November 4, 2015, requiring disclosure of the cell

extraction videotape, is reversed.

                                                                                  Reversed.




                                             17

