No. 13-0603 – Ron King, “Fire Marshal/Code Official” for the City of Nitro, David A.
Casebolt, duly elected and serving Mayor for the City of Nitro, and the City of Nitro, a
municipal corporation and political subdivision of the State of West Virginia v. Richard
J. Nease and Lorinda J. Nease, husband and wife
                                                                             FILED
                                                                            April 10, 2014

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

Benjamin, Justice, dissenting:                                           OF WEST VIRGINIA




              I am compelled to dissent to the majority’s legally unsound, illiberal, and

cramped construction of this State’s Freedom of Information Act.



              The majority’s legal analysis of the statutory language at issue amounts to

nothing more than judicial embroidery and has no support in our law. According to W.

Va. Code § 29B-1-3(5), “[t]he public body may establish fees reasonably calculated to

reimburse it for its actual cost in making reproductions of such records.” This language

could not be clearer and is not susceptible to more than one reasonable construction. A

reasonable person would understand these words to mean that a public body may charge

a fee for the cost of copying records requested by a person under the Freedom of

Information Act. According to our law, “[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.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). The

majority simply should have applied this clear language to the “retrieval fee” at issue in

this case and concluded that the fee is not authorized by the Act.




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              Instead, the majority opinion engages in a tortured analysis that manages to

disregard every applicable rule of statutory construction and violate both the letter and

spirit of the Freedom of Information Act. As noted above, the majority errs in its implicit

finding that the statutory language is ambiguous. The majority opinion further errs in

finding that the authority of a public body to charge a “retrieval fee” is encompassed in

the single word “fees.” In so finding, the majority opinion pays lip service to this Court’s

maxim “that the meaning of a word cannot be determined in isolation, but it must be

drawn from the context in which it is used,” HCCRA v. Boone Memorial Hosp., 196 W.

Va. 326, 338, 472 S.E.2d 411, 423 (1996) (citations omitted), and then proceeds to define

the word “fees” in isolation while choosing to ignore the context in which is it used.



              The majority opinion makes a big to-do in ascertaining the dictionary

definition of “fees,” and then contrasts this definition with that of the word “costs” before

deciding that the term “fees” is intended to cover more than just mere duplication-related

costs. All of this fuss about definitions is unnecessary because the meaning of the word

“fees” is obvious from the context in which it is used. The statutory language plainly

indicates that a 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). The

term “fees” is not separate from the phrase “actual cost in making reproductions of such

records,” but rather it is limited by it. The statutory language does not provide that a

public body may establish fees. Instead, it provides that a public body may establish fees

reasonably calculated to reimburse it for its actual cost in making reproductions of such

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records. Therefore, contrary to the assertion in the majority opinion, the statutory

language provides that the term “fees” covers only duplication-related costs. In finding

that “fees” stands alone and in addition to the cost in making reproductions of such

records, the majority opinion reads the statute at issue in a way that is foreign both to the

law of this Court as well as any reasonable understanding of the English language.



              In yet another abuse of this Court’s rules of statutory construction, the

majority opinion chides the circuit court for its reasoning that if the Legislature had

intended to authorize the imposition of retrieval fees it would have said so in the statute.

The majority opinion even includes a bizarre statement in footnote 13 that “the trial court

fails to appreciate that the converse is equally true: If the Legislature had wanted to

prohibit the potential imposition of search fees, a proscription against the use of such fees

could have been included in FOIA.” Of course, the majority opinion could not be more

wrong in this matter. This Court has held:

                     A statute which provides for a thing to be done in a
              particular manner or by a prescribed person or tribunal
              implies that it shall not be done otherwise or by a different
              person or tribunal; and the maxim expressio unius est exclusio
              alterius, the express mention of one thing implies the
              exclusion of another, applies to such statute.

Syl. pt. 1, State ex rel. Battle v. Hereford, 148 W. Va. 97, 133 S.E.2d 86 (1963). When

this rule is applied to the statutory language at issue, I must conclude that because the

Legislature expressly authorized public bodies to charge a fee only for the cost of




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reproducing requested records, it did not authorize public bodies to charge any other

kinds of fees including retrieval and search fees.



              Further, the majority opinion errs by construing the statutory language

inconsistent with the spirit and purpose of the Freedom of Information Act. In W. Va.

Code § 29B-1-1 (1977), the Legislature set forth the policy underlying the Freedom of

Information Act as follows:

                      Pursuant to the fundamental philosophy of the
              American constitutional form of representative government
              which holds to the principle that government is the servant of
              the people, and not the master of them, it is hereby declared
              to be the public policy of the State of West Virginia that all
              persons are, unless otherwise expressly provided by law,
              entitled to full and complete information regarding the affairs
              of government and the official acts of those who represent
              them as public officials and employees. The people, in
              delegating authority, do not give their public servants the
              right to decide what is good for the people to know and what
              is not good for them to know. The people insist on remaining
              informed so that they may retain control over the instruments
              of government they have created. To that end, the provisions
              of this article shall be liberally construed with the view of
              carrying out the above declaration of public policy.

While the majority opinion recognizes the mandate to construe the provisions of the Act

liberally, it blithely avows that the mandate is not relevant in this case because “no

disclosure-related provision was at issue in this case.” This is incorrect. The amount that

a public body may charge for the production of records directly affects the disclosure of

records. This is due to the fact that the amount charged for the production of records is

inversely related to how many people will file requests for the production of records and,


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therefore, how many records ultimately will be disclosed. Prior to the majority opinion, a

person who could not afford to pay a fee for the cost of reproducing requested records

could go to the government office where the records are held and view the records at no

charge. As a result of the majority opinion, this is no longer true. I predict that most or all

public bodies soon will charge a retrieval or search fee for producing records under the

Freedom of Information Act, and that some people who desire to request certain records

will be prohibited from doing so because of their inability to pay the retrieval or search

fee. When the transparency of a government is lost, can the legitimacy the public holds

for such a government be far behind?



              In sum, the majority opinion is more than just a frontal assault on reason

and sound legal analysis. It is also a step backward from the modern trend to make

government more open and accessible to those it purportedly serves. Essentially, the

majority opinion has a chilling effect on citizens who desire access to government

records in order to become informed of the workings of their government. It also

provides a way for overworked and underpaid public employees to discourage requests

under the Freedom of Information Act by imposing an ever-increasing “reasonable” fee

on all such requests. Therefore, for the reasons stated above, I dissent.




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