         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               January 2014 Term                      FILED
                                                                   June 5, 2014
                                                                   released at 3:00 p.m.
                                                                 RORY L. PERRY II, CLERK
                                     No. 13-0217               SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA




           ROGER HURLBERT and SAGE INFORMATION SERVICES,
                      Plaintiffs Below, Petitioners

                                         v.

                 MARK MATKOVICH, Acting Tax Commissioner,
                     West Virginia State Tax Department,
                       Defendant Below, Respondent

                                        and

                 SALLIE ROBINSON, Kanawha County Assessor,
                         Intervenor Below, Respondent


                 Appeal from the Circuit Court of Kanawha County
                    The Honorable Charles E. King, Jr., Judge
                           Civil Action No. 11-C-1762

               REVERSED AND REMANDED WITH DIRECTIONS


                             Submitted: April 8, 2014
                               Filed: June 5, 2014

Rudolph L. DiTrapano, Esq.                         Patrick Morrissey, Esq.
Sean P. McGinley, Esq.                             Attorney General
Katherine R. Snow, Esq.                            Katherine A. Schultz, Esq.
DiTrapano Barrett DiPiero McGinley                 Senior Deputy Attorney General
& Simmons, PLLC                                    Charleston, West Virginia
Charleston, West Virginia                          Attorneys for Respondent
Attorneys for Petitioners
                                                    Karen Tracy McElhinny, Esq.
                                                    Shuman, McCuskey & Slicer
                                                    PLLC
                                                    Charleston, West Virginia
                                                    Attorney for Intervenor



The Opinion of the Court was delivered PER CURIAM.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

JUSTICES KETCHUM dissents and reserves the right to file a dissenting opinion.
                             SYLLABUS BY THE COURT


             1.     “This Court reviews de novo the denial of a motion for summary

judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley

v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).



             2.      “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.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415

(1995).



             3.     “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].” Syl.

Pt. 4, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).



             4.     “The primary purpose of the invasion of privacy exemption to the

Freedom of Information Act, W. Va. Code, 29B-1-4[a](2) [1977], is to protect individuals

from the injury and embarrassment that can result from the unnecessary disclosure of

personal information.” Syl. Pt. 6, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799

(1985).




                                             i
              5.     “In deciding whether the public disclosure of information of a

personal nature under W. Va. Code § 29B-1-4(2) (1980) would constitute an

unreasonable invasion of privacy, this Court will look to five factors:

                     1. Whether disclosure would result in a substantial
              invasion of privacy and, if so, how serious.
                     2. The extent or value of the public interest, and the
              purpose or object of the individuals seeking disclosure.
                     3. Whether the information is available from other
              sources.
                     4. Whether the information was given with an
              expectation of confidentiality.
                     5. Whether it is possible to mould relief so as to limit
              the invasion of individual privacy.”

Syl. Pt. 2, Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986).



              6.     “Under W. Va. Code 29B-1-4[a](2) [1977], a court must balance or

weigh the individual’s right of privacy against the public’s right to know.” Syl. Pt. 7,

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



              7.     “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. If the public body refuses to

provide redacted or segregated copies because the process of redacting or segregating

would impose an unreasonably high burden or expense, the public body must provide the

requesting party a written response that is sufficiently detailed to justify refusal to honor
                                             ii
the FOIA request on these grounds. Such written response, however, need not be so

detailed that the justification would compromise the secret nature of the exempt

information.” Syl. Pt. 5, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004).



              8.    “When a public body asserts that certain documents or portions of

documents in its possession are exempt from disclosure under any of the exemptions

contained in W. Va. Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must

produce a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert.

denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L.Ed.2d 873 (1974). The Vaughn index must

provide a relatively detailed justification as to why each document is exempt, specifically

identifying the reason(s) why an exemption under W. Va. Code, 29B-1-4 is relevant and

correlating the claimed exemption with the particular part of the withheld document to

which the claimed exemption applies. . . .” Syl. Pt. 6, in part, Farley v. Worley, 215

W.Va. 412, 599 S.E.2d 835 (2004).



              .




                                            iii
Per Curiam:



               Petitioners/plaintiffs below Roger W. Hurlbert and Sage Information

Services (hereinafter “petitioners”) appeal the Circuit Court of Kanawha County’s

January 14, 2013, order granting summary judgment to respondent/defendant Mark

Matkovich, Acting Tax Commissioner, West Virginia State Tax Department (“Tax

Commissioner”) and respondent/intervenor Sallie Robinson, Kanawha County Assessor

(“Kanawha County Assessor”) (hereinafter collectively “respondents”), in this

declaratory judgment action brought pursuant to the Freedom of Information Act

(hereinafter “FOIA”). In granting summary judgment to respondents, the circuit court

found that petitioners were not entitled to disclosure of the Computer-Assisted Mass

Appraisal (“CAMA”) files for all real property in the State of West Virginia.



              Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court erred in

concluding that the CAMA files are categorically exempt from production pursuant to a

FOIA request and remand for submission of a Vaughn1 index and further findings by the

circuit court consistent with this opinion.




       1
        Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.
Ct. 1564, 39 L.Ed.2d 873 (1974).

                                              1
                     I. FACTS AND PROCEDURAL HISTORY

              Petitioner Roger Hurlbert, a resident of California, is the sole proprietor of

petitioner Sage Information Services. Petitioners assert that their business involves “the

prevention and apprehension of mortgage fraud through the automated verification of

appraisal data.”   On May 16, 2011, petitioners made a written request to the Tax

Commissioner for “a copy, on CD or similar electronic media, of both the assessment

files and the CAMA files for all real property in all counties.” Petitioners enclosed a six-

page itemization of the fields of data from the CAMA files they were requesting.



              The parties are largely agreed as to the following encapsulation of the tax

appraisal process, an understanding of which is necessary to differentiate the various

characterizations and labels of the two types of information at issue herein—the

assessment files and the CAMA files. The county assessors are charged by statute with

the collection of information for use in assessment of property taxes. See W. Va. Code §

11-1A-12(a) (1991) (“It is the intent of the Legislature that in carrying out the appraisal

functions required by this article, the Tax Commissioner shall utilize the county assessors

and their employees.”)     All county assessors in West Virginia perform Computer-

Assisted Mass Appraisal (“CAMA”) and input data collected during their assessment

functions into a statewide Integrated Assessment System (“IAS”) maintained and

administered by the Tax Commissioner.         The Tax Commissioner has access to the

information in the IAS (and therefore the CAMA files) for purposes of supervision,



                                             2
auditing, and oversight; however, only the county assessors can input or change the data

therein.



             As part of the real property assessment process, the county assessor is

charged with “mak[ing] out the land books” which contain the tax ticket number,

taxpayer name, map, parcel, deed book/page, property description, assessed value, and

tax for each parcel of property in the county, as more particularly described in West

Virginia Code § 11-4-1 et seq. This information is publicly available in the county

offices; respondents contend that the “assessment files” requested by petitioners are

merely a compilation of the information in the publicly-available land books.



             The CAMA files, on the other hand, may include more detailed information

about various properties including sketches/photos of the property, floor plans, number of

bathrooms/bedrooms, type of construction material, type of heating, topography, etc. In

addition, the CAMA files may contain information which respondents have characterized

as sensitive and personal information such as whether the residence has a security system,

whether the resident is home during the day, whether the resident has a disability,

whether the residence is unoccupied due to nursing home stays or otherwise vacant.

With regard to commercial properties, the CAMA files contain information regarding

profits/losses, blueprints, photographs, business income, and other information that could

ostensibly provide a competitive advantage. The CAMA files for industrial properties




                                            3
contain similar information but also include the names of buildings and types of

storage/operation in each, which respondents allege present homeland security issues.2



             In response to petitioners’ FOIA request, the Tax Commissioner:             1)

granted the request for the assessment files in exchange for payment of $9.23 in copying

expense; and 2) denied the request for the CAMA files, stating that it was not the

custodian of those records, but rather, the county assessors were the custodians. 3


      2
        As pertains to these latter two categories of real property, the West Virginia
Manufacturers’ Association submitted an amicus curiae brief in this matter mirroring the
arguments advanced by respondents. We wish to acknowledge and express our
appreciation for its submission.
      3
        Notably, however, the Tax Commissioner has released CAMA files for counties
in the past if the county assessor agreed to such disclosure in writing. The appendix
record also contains a letter from the Tax Commissioner to all West Virginia county
assessors dated November 23, 2009, stating that

             [o]ur position is that the provisions of West Virginia Code §
             11-1A-23 (2013 Repl. Vol.) do not protect appraisal records
             from disclosure, unless the records contain taxpayer return
             information that is specifically protected from disclosure
             statute [sic]. . . . . Many county assessors freely disclose most
             appraisal data or ask that the Tax Commissioner do so on
             their behalf.

        Moreover, Kanawha County (and others) regularly sold CAMA files to various
vendors in the recent past. In fact, the Tax Commissioner produced a listing in discovery
of all of the third-parties to whom CAMA data had been released in the past five years,
yielding a considerable number of disclosures. One of the vendors to whom Kanawha
County in particular produced its CAMA files—Spec-Print—makes various West
Virginia counties’ CAMA data available online. The Kanawha County Assessor claims,
however, that it has not released any CAMA files since 2008 and certainly has not
disclosed the 2011-2012 tax year information requested by petitioners. In addition,
many counties make at least some of their CAMA data available online.

                                            4
Petitioners requested that the Tax Commissioner revisit its denial, but the Tax

Commissioner refused to change its position. Petitioners did not avail themselves of the

assessment files which were offered. At no time prior to the litigation did the Tax

Commissioner claim any statutorily-enumerated FOIA exemption; rather, it claimed

simply that it was not the custodian of the CAMA files.



              As a result, petitioners filed the instant action seeking declaratory judgment

and injunctive relief; the Kanawha County Assessor was thereafter granted permission to

intervene.   The parties exchanged written discovery, followed by cross-motions for

summary judgment. The circuit court advised the parties that it believed the matter could

be decided as a matter of law and that any factual issues could be expedited and

developed through evidentiary testimony rather than discovery depositions. The parties

ostensibly agreed; therefore, no depositions were conducted. Nor were witnesses called

during the hearing on the motions for summary judgment. Respondents filed multiple

affidavits in support of their position; petitioners submitted none. No party requested

additional discovery pursuant to West Virginia Rule of Civil Procedure 56(f).



              The circuit court granted summary judgment to respondents, concluding

that the CAMA files were exempt from production under FOIA.               In reaching this

conclusion, the circuit court found that 1) certain of the CAMA data is exempt from

disclosure as “return information” and security system information specifically exempted

by West Virginia Code § 11-1A-23(a) (2007) and “trade secrets” exempted by West

                                             5
Virginia Code § 29B-1-4(a)(1) (2007); 2) the CAMA files contained “information of a

personal nature,” the disclosure of which constituted an unreasonable invasion of privacy

pursuant to the five-factor test in Syllabus Point 2 of Child Prot. Grp. v. Cline, 177 W.

Va. 29, 350 S.E.2d 541 (1986); and 3) because of the foregoing, the issue of whether the

Tax Commissioner was the “custodian” of the CAMA files was moot. This appeal

followed.



                             II. STANDARD OF REVIEW

               It is well-established that “[t]his Court reviews de novo the denial of a

motion for summary judgment, where such a ruling is properly reviewable by this Court.”

Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807

(2002). Moreover, “[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). We note further, however, that with regard to FOIA, “summary judgment is

viewed through the evidentiary burden placed upon the public body to justify the

withholding of materials.” Farley v. Worley, 215 W.Va. 412, 418, 599 S.E.2d 835, 841

(2004).     See also W. Va. Code § 29B-1-5(2) (1977) (“In any suit filed under subsection

one of this section [W. Va. Code § 29B-1-1] . . . . the burden is on the public body to

sustain its action.”). With this standard in mind, we proceed to the parties’ arguments.




                                             6
                                   III. DISCUSSION

              Petitioners set forth twelve assignments of error, nearly all of which are

simply different arguments in support of their position that the circuit court erred in

finding that the CAMA files are exempt from disclosure. Given our resolution of this

matter, we find it unnecessary to address all but three issues:          whether the Tax

Commissioner is the “custodian” of the records, whether the CAMA files are

categorically exempt from disclosure, and if not, whether the circuit court erred in failing

to require the parties to submit a Vaughn index.4



A.     “Custodian” of the CAMA Files5

              West Virginia’s FOIA, codified in West Virginia Code § 29B-1-1 et seq.

(2007), provides that “[t]he custodian of any public records, unless otherwise expressly

provided by statute, shall furnish proper and reasonable opportunities for inspection and

examination of the records in his or her office . . . .” W. Va. Code § 29B-1-3(3).

“Custodian” is defined as “the elected or appointed official charged with administering a

public body.” W. Va. Code § 29B-1-2(1). Petitioner asserts that the Tax Commissioner

       4
         In addition to the primary assignments of error addressed herein, petitioners
asserted that the circuit court erred by 1) relying on affidavits submitted by respondents;
2) failing to reach the “custodian” issue; 3) refusing to consider the public domain
doctrine; and 4) failing to find that the Tax Commissioner waived any FOIA exemptions.
       5
         As to this first issue, we note that the circuit court did not reach the issue of
whether the Tax Commissioner was the “custodian” of records, finding it moot in light of
its ruling that the data was not subject to disclosure in any event. However, in light of
our ultimate disposition herein, we will address this issue in the interest of judicial
economy.

                                             7
is clearly the “custodian” of the CAMA files inasmuch as it concedes that it has

possession of the files. Respondents staunchly maintain, however, that mere possession

of the data is insufficient to make the Tax Commissioner the “custodian” of the data and

that the critical inquiry is which entity “controls” the data          Because the Tax

Commissioner cannot input or alter the data, respondents contend that it is not the

“custodian.”



               This issue is easily resolved by application of both the plain language of

our FOIA statute and prior holdings illustrating the import of that language. In Syllabus

Point 2 of Shepherdstown Observer, Inc. v. Maghan, 226 W. Va. 353, 700 S.E.2d 805

(2010), this Court held:

               Under the West Virginia Freedom of Information Act
               (FOIA), W. Va. Code, 29B-1-1, et seq., a “public record”
               includes any writing in the possession of a public body that
               relates to the conduct of the public’s business which is not
               specifically exempt from disclosure by W. Va. Code, 29B-1-
               4, even though the writing was not prepared by, on behalf of,
               or at the request of, the public body.

(emphasis added). The CAMA files are contained in the computer system maintained

and administered by the Tax Commissioner; there is no question that the electronic files

constitute “records in his or her office.” In fact, the Tax Commissioner below readily

admitted that it could, previously has, and in fact would produce the data if written

permission were given by the Assessors. See n.3, supra. The CAMA data is collected to

enable the Tax Commissioner to fulfill his obligations pursuant to West Virginia Code §

11-1A-1 et seq.: “In conducting the reappraisals of property mandated by the West

                                            8
Virginia Constitution and required by this article, the Tax Commissioner shall appraise

all property[.]” W. Va. Code § 11-1A-1(a). Therefore, not only does the data satisfy the

possession element as set forth in Maghan, but the data is also prepared “on behalf of”

and “at the request of” the Tax Commissioner. The respondents’ hair-splitting about the

vagaries of the administration of the IAS system and the division of administrative duties

regarding the collection of this data misses the point entirely.



              This Court’s jurisprudence on this issue clearly demonstrates a liberal

construction of “custodian” and not only countenances disclosures if the requested

records are, at a minimum, in possession of the public entity, but has been extended to

require disclosure of documents over which the public body does not possess, but merely

exercises control. See Syl. Pt. 3, Daily Gazette Co., Inc. v. Withrow, 177 W.Va. 110, 350

S.E.2d 738 (1986), superseded by statute on other grounds, Daily Gazette Co., Inc. v. W.

Va. Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999) (holding that “lack of possession”

not determinative where the writing is “subject to the control of the public body”

(emphasis added)); see also Kissinger v. Reporters Comm., 445 U.S. 136, 151 (1980)

(“[A]gency possession or control is prerequisite to triggering any duties under the




                                              9
FOIA.” (emphasis added)).        Accordingly, we find that the Tax Commissioner is the

“custodian” of the subject files.6



B.     Disclosure of CAMA files

       1.     Exemption by Statute

               West Virginia’s FOIA provides generally 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 section four [§ 29B-1-4] of this article.” W. Va. Code § 29B-1-

3(1) (emphasis added). The statute defines “person” as including “any natural person,

corporation, partnership, firm or association.” W. Va. Code § 29B-1-2(2).7 However, as


       6
         In reaching this conclusion, however, we do not preclude the potential for the
various county assessors to likewise be considered “custodians” of this data to the extent
that they satisfy the statutory criteria.
       7
          Respondent Tax Commissioner contends in his brief that “because the Petitioners
are not taxpayers, or residents of this State, the protections afforded by FOIA . . . do not
extend to them.” This is patently incorrect, as evidenced by the use of the term “person”
and its commensurate definition contained in the statute. In fact, the overwhelming
majority of the states’ FOIA statutes have no such language restricting FOIA requests to
their citizenry; only eight states restrict FOIA requests in such a manner. Compare Ala.
Code § 36-12-40 (2012 Cum. Supp.) (“Every citizen has a right to inspect and take a
copy of any public writing of this state, except as otherwise expressly provided by
statute”); Ark. Code Ann. § 25–19–105 (a)(1)(A) (2011 Supp.) (“[A]ll public records
shall be open to inspection and copying by any citizen of the State of Arkansas during the
regular business hours of the custodian of the records.”); Del. Code Ann. tit. 29, § 10003
(2012 Supp.) (“Reasonable access to and reasonable facilities for copying of [] [public]
records shall not be denied to any citizen.”); Mo. Rev. Stat. § 109.180 (2012) (“[A]ll
state, county and municipal records kept pursuant to statute or ordinance shall at all
reasonable times be open for a personal inspection by any citizen of Missouri[.]”); N. H.
Rev. Stat. Ann. § 91-A:4 (West 2012) (“Every citizen . . . has the right to inspect all
governmental records in the possession, custody, or control of such public bodies or
(continued . . .)
                                            10
indicated, West Virginia Code § 29B-1-4 provides a number of categories of information

which are exempt from disclosure including “[i]nformation of a personal nature” and

“[i]nformation specifically exempted from disclosure by statute.” W. Va. Code §§ 29B-

agencies[.]”); N. J. Stat. Ann. § 47:1A-1 (West 2003) (“[G]overnment records shall be
readily accessible for inspection, copying, or examination by the citizens of this
State[.]”); Tenn. Code Ann. § 10-7-503(a)(2)(A) (2012) (“All state, county and municipal
records shall . . . be open for personal inspection by any citizen of this state[.]”); Va.
Code Ann. § 2.2-3704(A) (2011) (“[A]l public records shall be open to inspection and
copying by any citizens of the Commonwealth”). See also McBurney v. Young, 133 S.
Ct. 1709, 1714 (2013) (identifying the preceding eight states as those which restrict
access under FOIA to their citizens).

       In a similar vein, respondents insinuate (but do not expressly contend) that
because petitioners operate a “commercial business” for which the requested information
will presumably be used that “the reach of the FOIA statute” perhaps does not extend to
them. We recognize that the “extent or value of the public interest, and the purpose or
object of the individuals seeking disclosure” has been identified in Cline, 177 W. Va. at
29, 350 S.E.2d 541, as a factor in determining whether public disclosure information of a
personal nature would constitute an unreasonable invasion of privacy. However, the
threshold issue of whether the information constitutes “information of a personal nature”
must first be determined before launching into an evaluation of the Cline factors,
including the purpose of the requester, as discussed more fully infra.

       Perhaps more importantly, our FOIA statute contains absolutely no prohibition on
requests which are for a primarily commercial purpose. In fact, this Court stated in Cline
that the interest in the information “may be pecuniary.” Cline, 177 W. Va. 33, 350
S.E.2d at 544. Cf. Muffoletto v. Sessions, 760 F. Supp. 268 (E.D.N.Y. 1991) (discussing
gamut of motivating factors including private commercial interests for proper federal
FOIA request as pertains to entitlement for attorney fees); see also Blue v. Bureau of
Prisons, 570 F.2d 529, 533-34 (5th Cir. 1978) (discussing, for purposes of entitlement to
attorney fees, successful federal FOIA requests which “subsidize a matter of private
concern” as well as those which “add to the fund of information that citizens may use in
making vital political choices”); LaSalle Extension Univ. v. F. T. C., 627 F.2d 481, 484
(D. C. 1980) (recognizing propriety of federal FOIA requests motivated by “private self-
interest . . . and . . . pecuniary benefit” but not warranting attorney fee awards). While
the purpose of a FOIA request may prove relevant to the balancing test we established in
Cline, or federally, for purposes of an award of attorney fees, there is simply no support
in our statute or caselaw for the notion that commercial use of the information will defeat
an otherwise proper FOIA request.

                                            11
1-4(a)(2) and -4(a)(5). Petitioners maintain that the CAMA data is neither categorically

exempted from disclosure by our tax assessment statutes, nor does it constitute

“personal” information exempted by FOIA. We will review each potential exemption

separately to assess whether the CAMA files are, as a whole, exempt from production as

concluded by the circuit court.      In so doing, we are mindful 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).



              As indicated above, West Virginia Code § 29B-1-4(a)(5) provides that

“[i]nformation specifically exempted from disclosure by statute” is likewise exempt from

disclosure under FOIA.        To that end, West Virginia Code § 11-1A-23 entitled

“Confidentiality and disclosure of property tax returns and return information; offenses;

penalties” provides in pertinent part:

              (a) Secrecy of returns and return information. -- Property
              tax returns and return information filed or supplied pursuant
              to this article and articles three [§§ 11-3-1 et seq.], four [§§
              11-4-1 et seq.], five [§§ 11-5-1 et seq.] and six [§§ 11-6-1 et
              seq.] of this chapter and information obtained by subpoena or
              subpoena duces tecum issued under the provisions of this
              article shall be confidential and except as authorized in this
              section, no officer or employee of the State Tax Department,
              county assessors, county commissions and the Board of
              Public Works shall disclose any return or return information
              obtained by him or her, including such return information
              obtained by subpoena, in any manner in connection with his
              or her service as such an officer, member or employee:

                                            12
             Provided, That nothing herein shall make confidential the
             itemized description of the property listed, in order to
             ascertain that all property subject to assessment has been
             subjected to appraisal: Provided, however, That the
             commissioner and the assessors shall withhold from public
             disclosure the specific description of burglar alarms and
             other similar security systems held by any person . . . .

(emphasis added). Fairly read, this statute provides that property tax “returns” and

“information filed or supplied”8 pursuant to the tax assessment process are confidential;

however, an “itemized description of the property listed” is not. Petitioners take the

position that the CAMA data is simply part of the “itemized description” of property

appraised. Respondents take the position that the “itemized description” is limited to the

assessment files or land book information.



             We find that to determine whether the CAMA files constitute confidential

“returns and return information” exempt from disclosure or are part of the non-

confidential “itemized description,” we must resort to our well-established canons of

statutory construction. In that regard, we have recognized:

             Ambiguity is a term connoting doubtfulness, doubleness of
             meaning of indistinctness or uncertainty of an expression
             used in a written instrument. It has been declared that courts
             may not find ambiguity in statutory language which laymen
             are readily able to comprehend; nor is it permissible to create

      8
         All indications are that assessment information is derived from three sources: 1)
historical information; 2) tax return information submitted by the taxpayer; 3) site
inspections by assessors which may or may not involve the cooperation and “supplying”
of information by the taxpayer. The regulations on these on-site inspections direct the
assessor to enter the home for inspection and questioning of the homeowner, if permitted;
otherwise, they are directed to “estimate.” W. Va. C.S.R. § 189-2-1 et seq.

                                             13
              an obscurity or uncertainty in a statute by reading in an
              additional word or words.

Dunlap v. Friedman’s, Inc., 213 W.Va. 394, 397-98, 582 S.E.2d 841, 844-45 (2003)

(quoting Crockett v. Andrews, 153 W.Va. 714, 718–19, 172 S.E.2d 384, 387 (1970)).

Moreover,

              [a] finding of ambiguity must be made prior to any attempt to
              interpret a statute. As the Court stated in syllabus point one of
              Ohio County Comm’n v. Manchin, 171 W.Va. 552, 301
              S.E.2d 183 (1983), “Judicial interpretation of a statute is
              warranted only if the statute is ambiguous and the initial step
              in such interpretative inquiry is to ascertain the legislative
              intent.”

Dunlap, 213 W. Va. at 397, 582 S.E.2d at 845; see also McCoy v. Vankirk, 201 W.Va.

718, 725, 500 S.E.2d 534, 541 (1997) (“[W]hen a statute’s language is ambiguous, a

court often must venture into extratextual territory in order to distill an appropriate

construction.” (quoting State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194

W.Va. 770, 777, 461 S.E.2d 516, 523 (1995)). We find that the CAMA data is not

expressly countenanced in the statute and the statute’s language is sufficiently ambiguous

such as to require this Court to construe the statute.



              West Virginia Code § 11-1A-23(a) is entitled “Secrecy of returns and

return information.” (emphasis added). We observe initially that the “return” itself at

least as pertains to residential properties contains very little data—address/land book

description, owner’s value, owner occupied/rental, residential/farm/commercial, and

improvements/cost—as compared with the universe of potential information compiled in


                                              14
the CAMA data. The bulk of the CAMA data is clearly derived from in-person visits by

deputy assessors and may or may not include the following additional information:

topography, utilities, stories, basement features, number of beds/baths, quality of

construction (type of floors, kitchen, paneling, fireplaces), general condition (remodeling,

cracked plaster, sagging floors), type of furnace/hot water heater, extra plumbing,

recreation rooms, measurements, sketches, recent sales, sales price, date built, rental

information, presence of outbuildings/pools, etc. In fact, West Virginia Code of State

Regulations § 189-2-1 et seq. sets forth an exhaustive set of statewide procedures for the

collection of this data, largely through in-person visitation by a data collector. W. Va.

Code of State Regulations § 189-2-3 through -6.



              Respondents’ position urges us to conclude that the Legislature intended to

make all of the data collected and/or utilized by the assessor for property appraisal

purposes confidential, with the exception of the scant description of real property in the

land books. We believe that the language of the statute belies such a position. First, the

statute very specifically refers to “returns and return information.” We believe that the

“return information” is that particular species of data provided by the taxpayers

themselves directly to the assessor on the tax return document. The CAMA data, on the

other hand, consists largely of the very detailed information collected by data collectors

through the exhaustive processes provided in West Virginia C.S.R. § 189-2-1 et seq.




                                            15
              Secondly, and perhaps more tellingly, the statute specifically makes

confidential, among other things,9 “the specific description of burglar alarms and other

similar security systems held by any person[.]” W. Va. Code § 11-1A-23(a). If the entire

universe of information collected by the assessor were intended by the Legislature to be

confidential save the land book description, it would have been unnecessary for the

Legislature to make such a specific additional exemption for burglar alarms and security

systems as such information would fall within the broad-sweeping confidentiality urged

by respondents.    “In parsing the language of a statute for its meaning, we are mindful

that ‘a cardinal rule of statutory construction is that significance and effect must, if

possible, be given to every section, clause, word or part of the statute.’” Meadows v.

Wal-Mart Stores, Inc., 207 W.Va. 203, 214, 530 S.E.2d 676, 687 (1999) (quoting State v.

General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 147, 107 S.E.2d 353, 359

(1959)). As such, we conclude that the CAMA data is not categorically exempted from

disclosure pursuant to West Virginia Code § 11-1A-23(a).



              Nevertheless, we recognize—much as the circuit court did—that only

“some” of the CAMA data is specifically exempted information by West Virginia Code §

11-1A-23(a) and § 29B-1-4. In that regard, we do not disturb the circuit court’s ruling

regarding information specifically identified as falling within these plainly-worded

       9
        The statute also specifically makes “stocks, bonds and other personal property
held by a natural person, except . . . tangible property utilized publicly . . . trade secret[s]
or confidential patent information” exempt from public disclosure unless subject to
review or protest in the appraisal or assessment process.” W. Va. Code § 11-1A-23(a).

                                              16
exemptions such as burglar alarms and security systems.         However, as more fully

discussed infra, the circuit court erred in ruling that the CAMA data was subject to a

wholesale exemption from disclosure because it includes some of these more narrowly-

defined exemptions.



       2.     Information of a “Personal Nature”

              Although the circuit court concluded that some unidentified portion of the

CAMA data fell within the exemptions contained in West Virginia Code § 11-1A-23(a),

it relied most heavily on the specific FOIA provision exempting “information of a

personal nature” from disclosure.      West Virginia Code § 29B-1-4(a) provides, in

pertinent part:

              (a) The following categories of information are specifically
              exempt from disclosure under the provisions of this article:

              ***

              (2) Information of a personal nature such as that kept in a
              personal, 10 medical or similar file, if the public disclosure
              thereof would constitute an unreasonable invasion of privacy,
              unless the public interest by clear and convincing evidence
              requires disclosure in the particular instance: Provided, That
              nothing in this article shall be construed as precluding an
              individual from inspecting or copying his or her own
              personal, medical or similar file[.]




       10
          This Court has observed that in most state’s FOIA statutes, this term is actually
“personnel.” Manns v. City of Charleston Police Dept., 209 W.Va. 620, 624, n.6, 550
S.E.2d 598, 602 n.6 (2001). In Manns, this differentiation was found to be immaterial
since the files at issue included and/or were akin to personnel files.

                                            17
(footnote added). “Information of a personal nature” is not statutorily defined; however,

this Court has observed that “[t]he primary purpose of the invasion of privacy exemption

to the Freedom of Information Act, W. Va. Code, 29B-1-4[a](2) [1977], is to protect

individuals from the injury and embarrassment that can result from the unnecessary

disclosure of personal information.” Syl. Pt. 6, Hechler, 175 W.Va. 434, 333 S.E.2d 799.



             The circuit court concluded that certain of the CAMA data—particularly

the information regarding nursing home stays, disabilities, photographs and drawings of

the inside and outside of homes and business, construction materials, blueprints,

profit/loss statements, and whether the owner is home during the day—constituted

information of a personal nature. Accordingly, the circuit court proceeded to evaluate

whether disclosure of such information would constitute an unreasonable invasion of

privacy pursuant to Cline, 177 W. Va. 29, 350 S.E.2d 541, as follows:

             In deciding whether the public disclosure of information of a
             personal nature under W. Va. Code § 29B-1-4(2) (1980)
             would constitute an unreasonable invasion of privacy, this
             Court will look to five factors:
                    1. Whether disclosure would result in a substantial
             invasion of privacy and, if so, how serious.
                    2. The extent or value of the public interest, and the
             purpose or object of the individuals seeking disclosure.
                    3. Whether the information is available from other
             sources.
                    4. Whether the information was given with an
             expectation of confidentiality.
                    5. Whether it is possible to mould relief so as to limit
             the invasion of individual privacy.




                                           18
Syl. Pt. 2, id. Generally, “[u]nder W. Va. Code 29B-1-4[a](2) [1977], a court must

balance or weigh the individual’s right of privacy against the public's right to know.” Syl.

Pt. 7, Hechler, 175 W.Va. 434, 333 S.E.2d 799. The circuit court found that the Cline

balancing test compelled the conclusion that the CAMA data is entirely exempt from

disclosure under West Virginia Code § 29B-1-4(a)(2).11



              Petitioners argue that real estate information is not “personal” information

in the first instance; rather, it is information regarding real property itself. Therefore,

petitioners argue that an evaluation of the Cline factors below is not even reached.

Moreover, petitioners cite a handful of cases and attorney general opinions from other

jurisdictions concluding that property “descriptions” are not private.        Respondents

counter that citizens have an expectation of privacy in the interior and curtilage of their

homes and that much of the CAMA data is derived from those closely-held areas.

Respondents argue that in the extra-jurisdictional cases and opinions cited by petitioners,

the information sought therein is more akin to the assessment files, rather than the

CAMA data. Critically, however, the Tax Commissioner conceded during oral argument

that it does not contend that the entirety of the CAMA data is exempt from disclosure


       11
          More specifically with respect to the Cline factors, the circuit court found that
disclosing information about a home’s interior could pose a danger to families, that
petitioners are not West Virginia citizens and therefore have no legitimate “need to
know,” that the land book/assessment information would give them adequate
information, that taxpayers expect the information to be used solely by the government,
and that this personal information is scattered throughout the fields of data making it
nearly impossible to redact.

                                            19
pursuant to this provision, but rather that the exempt information is inextricably

commingled within the various fields of the CAMA data.              Moreover, petitioners

repeatedly maintained that they were not seeking many of the categories of information

respondents contended was confidential. 12



             We find that the CAMA data, as a whole, does not constitute per se

“personal information.” However, we recognize that it may, and likely does, contain

some information which could be characterized as such and therefore subject to the Cline

balancing test. While the full nature and extent of the categories of information sought

by petitioners’ request has not been fully developed,13 we find that those categories which

have been identified concerning the construction and general characteristics of the

property do not fairly constitute “personal” information. Rather, much of the information

is that which could be readily observed by the general public. Other, less “public”

characteristics of the property, i.e. interior aspects of the home, could be easily

ascertained from an MLS real property listing or other public dissemination of the

home’s features, which is common today. This Court has stated, with respect to the

parallel federal FOIA exemption for personal information:

      12
          Specifically, petitioners assert that they do not want the following items or
categories of information to which respondents have objected: photographs/sketches of
buildings, vacancy information, burglar alarms/security systems, profit/loss statements,
photographs/blueprints of commercial properties, blueprints/trade secrets of chemical
plants, industrial property data, nursing home stays, and disabilities.
      13
         The fields of data requested by petitioners are designated by abbreviations and
coded; therefore, much of it is indecipherable.

                                             20
              The primary purpose of exemption 6 to the Federal FOIA
              “was to protect individuals from the injury and
              embarrassment that can result from the unnecessary
              disclosure of personal information.” The primary purpose of
              W. Va. Code, 29B–1–4[a](2) [1977] is the same. The
              threshold inquiry as to the type of information initially subject
              to this exemption turns not upon the label of the file
              containing the information nor upon the “intimate” or “highly
              personal” nature of the information. “Rather, ‘[t]he exemption
              [was] intended to cover detailed Government records on an
              individual which can be identified as applying to that
              individual.’”

Hechler, 175 W. Va. at 444, 333 S.E.2d at 809 (quoting United States Dep’t of State v.

Washington Post Co., 456 U.S. 595 (1982) (citations omitted)). The respondents have

identified no “injury” or “embarrassment” that is occasioned by the disclosure of

information about the number of bedrooms or construction materials of an individual’s

home. To the contrary, it seems plain that this type of information could prove valuable

to taxpayers to ensure fair and equal assessment of like properties.



              We conclude, therefore, that the CAMA data is not categorically exempted

from disclosure under FOIA’s exemption for information of a personal nature and that

the circuit court erred in so concluding.



C.     Vaughn Index and Redaction of Exempt Information

              We find, however, that the foregoing discussion is mere prologue to the

most problematic error committed below. As indicated, based upon a few generally

referenced categories of “personal” information presumably contained within the CAMA

files and the inclusion of “return” information and burglar alarms/security systems, the
                                             21
lower court ruled that no disclosure whatsoever of the CAMA files was required.

Accordingly, both respondents and the circuit court disregarded the following well-

established holding:

             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. If the public body refuses to provide redacted or
             segregated copies because the process of redacting or
             segregating would impose an unreasonably high burden or
             expense, the public body must provide the requesting party a
             written response that is sufficiently detailed to justify refusal
             to honor the FOIA request on these grounds. Such written
             response, however, need not be so detailed that the
             justification would compromise the secret nature of the
             exempt information.

Syl. Pt. 5, Farley, 215 W.Va. 412, 599 S.E.2d 835. Moreover, in aid of the lower court’s

obligation to independently assess the FOIA exemptions claimed by the public body, we

have more specifically held:

             When a public body asserts that certain documents or portions
             of documents in its possession are exempt from disclosure
             under any of the exemptions contained in W. Va. Code, 29B-
             1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must
             produce a Vaughn index named for Vaughn v. Rosen, 484
             F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct.
             1564, 39 L.Ed.2d 873 (1974). The Vaughn index must
             provide a relatively detailed justification as to why each
             document is exempt, specifically identifying the reason(s)
             why an exemption under W. Va. Code, 29B-1-4 is relevant
             and correlating the claimed exemption with the particular part
             of the withheld document to which the claimed exemption
             applies. . . .



                                            22
Syl. Pt. 6, in part, Farley, 215 W. Va. 412, 599 S.E.2d 835. As previously noted, neither

the Tax Commissioner nor Kanawha County Assessor offered a redacted version of the

CAMA files. Rather, the Tax Commissioner made vague reference to the complexity of

redacting this information and indicated it would likely require out-sourcing the redaction

to a third-party vendor to ensure the files were not corrupted. Although a purported

hourly rate for redaction was offered, no total cost for this out-sourcing was provided.

Obviously, the ultimate necessity and cost of this action was not justified since the

amount and type of information that would need redacted was never fully formed, due to

the absence of more specific development of the fields of data which were purportedly

subject to exemption. “[A] public body cannot simply state in a conclusory or cursory

manner that redaction would be unreasonably burdensome or costly.” Id. at 423, 599

S.E.2d at 846.     The absence of more specific information on the cost to redact

information from the CAMA files was occasioned entirely by the failure of the Tax

Commissioner and Kanawha County Assessor to produce a Vaughn index.14 We are

hard-pressed to conjure a scenario that better illustrates the efficaciousness of a Vaughn

index than the instant matter.

       14
          The Tax Commissioner argues that the basis of their refusal to disclose is
evident from the pleadings, obviating the need for a Vaughn index. The Kanawha
County Assessor argues that no FOIA request was made to it; therefore, it need not
produce a Vaughn index. Neither of these arguments has merit. If a mere blanket
objection under FOIA were sufficient, there would never be a need for a Vaughn index;
this case is particularly susceptible to such an index as the information is contained in a
number of discrete categories, all of which have been identified by petitioners. The
Kanawha County Assessor’s position is particularly disingenuous since 1) it actively
intervened in the case for the purpose of advancing FOIA exemptions; and 2) adamantly
maintains that it is the proper custodian of the records, rather than the Tax Commissioner.

                                            23
              This Court has recognized “that agencies have ‘a responsibility to disclose

as much information to the public as [they] can.’” Farley, 215 W. Va. at 420, 599 S.E.2d

at 843 (quoting AT&T Comm’n v. Pub. Serv. Comm’n, 188 W. Va. 250, 253, 423 S.E.2d

859, 862 (1992)). More to the point, this Court has noted that

              a FOIA request seeking records containing both exempt and
              non-exempt information without the request specifying that
              redacted records will be acceptable must be treated as a
              request for the production of any non-exempt information
              contained in a public record otherwise reasonably falling
              within the request. In other words, “an entire document is not
              exempt merely because an isolated portion need not be
              disclosed. Thus the agency may not sweep a document under
              a general allegation of exemption, even if that general
              allegation is correct with regard to part of the information.”

Id. at 421, 599 S.E.2d at 844 (quoting Vaughn, 484 F.2d at 825). Not only did the Tax

Commissioner sweep an entire database of information under a general allegation of

exemption, but the circuit court succumbed to the same error. Had a Vaughn index been

prepared and submitted, the parties may well have been able to come to some sort of

agreement as to the information to be disclosed. If not, the circuit court would have been

in a position to evaluate the claims of exemption as pertains to the specific information

contained in each field of data.15




       15
         The circuit court is certainly required to evaluate claims of undue burden or
expense in ordering redaction of exempt categories of information, in accordance with
Syllabus Point 5 of Farley. Obviously, however, such burden or expense cannot be
established with the detail required by Farley until the particular fields of data upon
which exemption will be claimed are identified and the exemptions evaluated by the
circuit court. We find the Commissioner’s vague claims of commingling, as they
(continued . . .)
                                           24
                “[U]nless the segregability provision of the FOIA is to be nothing more

than a precatory precept, agencies must be required to provide the reasons behind their

conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the

courts.” Mead Data Cent., Inc. v. U. S. Dep’t of Air Force, 566 F.2d 242, 261 (D. C. Cir.

1977).   Accordingly a determination as to whether certain particular fields of data

constitute “personal information” potentially exempt from disclosure is premature

inasmuch as the specific bases for exemption for each specific field were not developed

below. On remand, the circuit court is directed to require submission of a Vaughn index

containing the specific exemptions claimed by respondents as to the specific fields of

data in the CAMA files, whereupon the circuit court is to evaluate the specific categories

of information sought in accordance with the exemptions delineated in West Virginia

Code § 11-1A-23(a) and West Virginia Code § 29B-1-4 and as further consistent with

this opinion.

presently exist in the record below, particularly unavailing where 1) the information is
electronically stored and susceptible to sorting and searching; and 2) the categories
themselves should reveal whether personal information is likely to be contained therein.
This is not a case involving a morass of documents each and every line of which must be
reviewed and dissected. The feasibility of selecting and sorting data for production is
perhaps best demonstrated by respondent Kanawha County Assessor’s own submission
of in camera documents containing separately itemized compilations of information
regarding nursing home stays, security systems, disabled persons, and vacant properties.

       Moreover, respondents’ contention that the rate of $203/hour for outsourcing the
redaction project is burdensome and unreasonable is premature without a more specific
determination as to how much of the information must be redacted, if any. More
importantly, however, FOIA expressly provides that “[t]he public body may establish
fees reasonably calculated to reimburse it for its actual cost in making reproductions of
such records.” W. Va. Code § 29B-1-3(5); see also King v. Nease, No. 13-0603 (W. Va.
April 10, 2014).

                                           25
                                   IV. CONCLUSION

              Based upon the foregoing, we therefore reverse the January 14, 2013, order

of the Circuit Court of Kanawha County, and remand for submission of a Vaughn index

and further findings by the circuit court consistent with this opinion.




                                                  Reversed and remanded with directions.




                                             26
