                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


Appalachian Mountain Advocates,                                                     FILED
Plaintiff Below, Petitioner                                                      June 18, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.) No. 19-0266 (Monongalia County 18-C-267)                                      OF WEST VIRGINIA


West Virginia University,
Defendant Below, Respondent



                              MEMORANDUM DECISION


        Petitioner Appalachian Mountain Advocates, by counsel Evan D. Johns, appeals the
Circuit Court of Monongalia County’s February 22, 2019, order granting respondent’s motion to
dismiss petitioner’s complaint for declaratory and injunctive relief. Respondent West Virginia
University, by counsel Seth P. Hayes and Zachary H. Warder, filed a response. Petitioner filed a
reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On November 9, 2017, the West Virginia Department of Commerce (“Department of
Commerce”) announced that China Energy Investment Corporation (“China Energy”) planned to
invest $83.7 billion in shale gas and chemical projects in West Virginia. See Press Release, West
Virginia Department of Commerce, China Energy and West Virginia Announce Framework to
Invest $83 Billion in Shale Gas and Chemical Manufacturing Projects (Nov. 9, 2017). The then-
West Virginia Secretary of Commerce H. Wood Thrasher (“Commerce Secretary Thrasher”) and
a representative from China Energy signed a Memorandum of Understanding (“MOU”), and
Commerce Secretary Thrasher stated that West Virginia sought this foreign investment to
“strengthen and diversify” the state’s economy. Id. Commerce Secretary Thrasher also detailed
that the West Virginia Development Office (“Development Office”) had worked “to ensure this
unparalleled economic development opportunity was realized for the [S]tate of West Virginia.”
Id.



                                                1
       Shortly after this announcement, on November 28, 2017, petitioner requested from
respondent (in particular, “the West Virginia University Energy Institute or any of its staff”),
under the West Virginia Freedom of Information Act (“FOIA”),

       (1) Any memoranda of understanding or other agreement between any West
           Virginia state officer, agency, or department and China Energy Investment
           Corporation (or any representative thereof), entered into, prepared, or
           otherwise dated between January 16, 2017 and November 10, 2017;

       (2) any list of energy, infrastructure, or industrial projects that any West Virginia
           state officer, agency, or department provided to China Energy Investment
           Corporation (or any representative thereof) between January 16, 2017 and
           November 10, 2017;

       (3) any documents, including incoming or outgoing electronic mail (e-mail)
           messages, that both:
              (i) were produced between January 16, 2017, and November 10, 2017; and
              (ii) meet at least one of the following criteria:
                      (a) contain both of the terms “China” and “energy,”
                      (b) contain both of the terms “China” and “coal,” or
                      (c) contain both of the terms “China” and “gas;” and

       (4) any attachments or exhibits to any of the records described above in
           paragraphs (1)-(3).

        In response to parts (1) and (2), respondent stated that it construed those “to be requests
for the memorandum of understanding between China Energy Investment Corporation and the
West Virginia Department of Commerce and projects that may be identified in such agreement,”
which it claimed were exempt from disclosure “to the extent that such agreement and documents
contain proprietary trade secrets and/or information relating to economic development.” With
respect to parts (3) and (4), respondent claimed that the requests were too broad and disclosure of
the requested documents would be too burdensome, as a preliminary search “yielded more than
15,000 potentially responsive e[-]mails.”

        On June 21, 2018, petitioner filed a “Complaint for Declaratory and Injunctive Relief”
alleging that respondent unlawfully refused to provide public records responsive to a lawful
FOIA request. Respondent moved to dismiss the complaint under Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure for failure to state a claim upon which relief could be granted.

        In moving to dismiss, respondent recounted the circumstances surrounding execution of
the MOU, appended a press release documenting the event, and cited precedent permitting courts
to take judicial notice of current events of a public nature. Respondent also explained that
petitioner directed its FOIA request to it rather than to the Department of Commerce or the
Development Office because its Energy Institute employed Dr. Quingyun Sun. In addition to his
employment with respondent’s Energy Institute, Dr. Sun served as the Governor’s Assistant for
China Affairs at the Development Office. Although Dr. Sun did not sign the MOU, respondent

                                                2
averred that he was the point of contact for China Energy’s investment in West Virginia at the
Development Office, which office “orchestrated” the investment and MOU, and that any
documents responsive to parts (1) and (2) of petitioner’s FOIA request “were obtained through
Dr. Sun’s work with” the Development Office. Accordingly, respondent argued, documents
responsive to parts (1) and (2) were exempt from disclosure under the “economic development
exemption” found in West Virginia Code § 5B-2-1, quoted below.

       Respondent also argued that parts (3) and (4) of petitioner’s FOIA request failed to state
with reasonable specificity the information sought and were overly broad and unduly
burdensome. As earlier indicated, respondent had identified more than 15,000 potentially
responsive e-mails, and claimed that reviewing and, where necessary, redacting or segregating
the e-mails would impose an unreasonably high burden and expense.

        The circuit court held a hearing on the motion on November 19, 2018, at which it took
the motion under advisement and directed the parties to meet and confer in an attempt to narrow
the search terms specified in parts (3) and (4) of the request. Several months later, on February
22, 2019, the court granted respondent’s motion to dismiss, concluding that “the request seeks
documents that are statutorily protected by the economic development [exemption] and the
request is unduly burdensome.” Petitioner now appeals.

       “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 1, Barber v. Camden Clark Mem’l Hosp. Corp., 240 W. Va. 663, 815 S.E.2d 474
(2018) (citation omitted).

        Petitioner raises four assignments of error on appeal. Petitioner’s first two claimed errors
relate to the circuit court’s finding that the documents requested in parts (1) and (2) of the FOIA
request are protected under the economic development exemption.1 Petitioner argues that


       1
          Petitioner also argues on appeal that respondent has failed to state whether it possesses
documents responsive to the request aside from the MOU, and that the circuit court erred,
additionally, in granting respondent’s motion related to parts (1) and (2) in whole where the
exemption was claimed only for the MOU and related documents. In respondent’s brief to this
Court, it notes that “[p]etitioner was upfront about seeking the MOU with [respondent] and the
lower court. It is only before this Court that [p]etitioner now downplays its intent to seek the
MOU through [respondent’s] Energy Institute.”

       It is clear to this Court that parts (1) and (2) of petitioner’s FOIA request sought the
MOU and related documents. Respondent told petitioner that it was construing those parts to be a
request for the MOU “and projects that may be identified in such agreement,” and petitioner did
not challenge that construction. Indeed, in its response to the motion to dismiss, petitioner’s
characterization of Count I of its complaint readily admits as much:

       Count I alleges the University has a duty to produce copies of the China Energy
       agreement in its possession, regardless of whether the University is itself a

                                                                                    (continued . . .)
                                                 3
applicability of the exemption was not properly resolved by a motion to dismiss; rather, because
respondent was required to substantiate the applicability of that exemption, the matter was more
appropriate for summary judgment. Petitioner also argues that, in any event, the bare assertions
in respondent’s legal memoranda were insufficient to demonstrate applicability of the exemption,
and that the circuit court went “beyond [petitioner’s] complaint and judicially noticeable facts”
in sustaining respondent’s claim.

        Under the FOIA, “[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 of this article.”
W. Va. Code § 29B-1-3(a). One such express exemption from disclosure is “[i]nformation
specifically exempted from disclosure by statute[.]” Id., § 29B-1-4(a)(5). West Virginia Code §
5B-2-1, in turn, sets forth the economic development exemption:

       Any documentary material, data or other writing made or received by the West
       Virginia development office or other public body, whose primary responsibility is
       economic development, for the purpose of furnishing assistance to a new or
       existing business shall be exempt from the provisions of article one [§§ 29B-1-1
       et seq.], chapter twenty-nine-b of this code: Provided, That any agreement entered
       into or signed by the development office or public body which obligates public
       funds shall be subject to inspection and copying pursuant to the provisions of said
       article as of the date the agreement is entered into, signed or otherwise made
       public.

       The MOU and related documents sought in parts (1) and (2) of petitioner’s request fall
squarely within this exemption as “documentary material, data or other writing made or received
by the [Development Office] or other public body, whose primary responsibility is economic
development, for the purpose of furnishing assistance to a new . . . business.”2 See id.

       signatory to that agreement. . . . Count I also challenges the University’s
       “hypothetical” invocation of the Act’s trade secret and economic development
       exemptions.

(Emphasis added.) Petitioner also related that respondent “did not deny it possessed copies of the
China Energy agreement.” (Emphasis added.) Because petitioner did not dispute below that parts
(1) and (2) of its request sought only the MOU and related documents, we decline to consider
any argument that it was seeking other, additional documents. See Zaleski v. W. Va. Mut. Ins.
Co., 224 W. Va. 544, 550, 687 S.E.2d 123, 129 (2009) (finding that argument raised for first
time on appeal was waived).
       2
           This conclusion is rendered no less certain by petitioner’s argument that respondent
failed to show that the MOU does not obligate public funds. A “memorandum of understanding,”
also termed “letter of intent,” is defined as “[a] written statement detailing the preliminary
understanding of parties who plan to enter into a contract or some other agreement; a
noncommittal writing preliminary to a contract.” Letter of intent, Black’s Law Dictionary 1088
(11th ed. 2019) (emphasis added). “A letter of intent is not meant to be binding . . . . Business

                                                                                   (continued . . .)
                                                4
        Petitioner disputes that it pled facts in its complaint sufficient for the circuit court to
make such a determination without resorting to matters outside of the complaint. But a circuit
court may adjudicate an affirmative defense on a motion to dismiss for failure to state a claim
where the facts that establish the defense are ascertainable from, among other things, “matters of
which the court may take judicial notice.” Forshey v. Jackson, 222 W. Va. 743, 746 n.8, 671
S.E.2d 748, 751 n.8 (2008). In addition, we have previously stated that courts “may, and should,
take notice . . . of current events of a public nature.”3 State ex rel. City of Charleston v. Sims, 132
W. Va. 826, 847, 54 S.E.2d 729, 741 (1949). While courts will not take judicial notice of every
current event, “we are not required to close our eyes to things which are in plain view, especially
in matters which concern the government of the State, of which we are a part.” Id. Though the
parties submit that the circuit court did not, in fact, take judicial notice of these facts, we may
nevertheless “affirm the judgment of the lower court when it appears that such judgment is
correct on any legal ground disclosed by the record, regardless of the ground, reason or theory
assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, in part, Barnett v. Wolfolk,
149 W. Va. 246, 140 S.E.2d 466 (1965). The circumstances surrounding the MOU were capable
of judicial notice, and the circuit court would have been acting within its discretion to judicially
notice those facts; accordingly, to the extent the applicability of the economic development
exemption was not apparent from the face of petitioner’s complaint and appended exhibits,
including its FOIA request, the court’s decision was likewise proper in view of the facts that
could have been judicially noticed. For these reasons, we find no merit to petitioner’s challenges
to the court’s application of the economic development exemption.4




people typically mean not to be bound by a letter of intent, and courts ordinarily do not enforce
one . . . .” Id. Thus, by definition, the MOU falls outside of what petitioner refers to as the
“public funds carve-out.”
       3
          Under Rule 201(b) of the West Virginia Rules of Evidence, courts “may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Courts “may take judicial notice on [their]
own,” and judicial notice may be taken “at any stage of the proceeding.” W. Va. R. Evid. 201(c)-
(d).
       4
          In further support of its claim the circuit court’s action was procedurally infirm,
petitioner contends that respondent was required to submit a Vaughn index and affidavit. See Syl.
Pt. 6, Farley v. Worley, 215 W. Va. 412, 599 S.E.2d 835 (2004) (requiring a public body to
produce a Vaughn index and affidavit when it asserts that documents are exempt from
disclosure). Respondent argues that these documents were not yet necessary. Either way, we find
no error in the circuit court’s declination to order submission of these documents given the
readily apparent applicability of the economic development exemption to parts (1) and (2) of
petitioner’s FOIA request.



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        In petitioner’s final two assignments of error, it challenges the court’s conclusion that
parts (3) and (4) of its FOIA request are unduly burdensome. Petitioner again challenges the
propriety of adjudicating the claim at the motion to dismiss stage, argues that respondent failed
to substantiate its claim of undue burden, and contends that respondent had a duty to redact or
segregate exempt from non-exempt information.

        A FOIA request “for information must state with reasonable specificity the information
sought.” W. Va. Code § 29B-1-3(d), in relevant part. Petitioner’s sweeping request in parts (3)
and (4)—directed to respondent’s Energy Institute or any of its staff—sought “any documents,”
including all incoming and outgoing e-mails, produced over a nearly ten-month period
containing the word “China” and “energy,” “coal,” or “gas,” as well as “any attachments or
exhibits to any of the records” sought in parts (1) through (3). (Emphasis added.) Respondent
identified more than 15,000 potentially responsive e-mails. Recognizing the “limited resources
public bodies have to not only respond to FOIA requests, but to provide other critical
government services,” Farley, 215 W. Va. at 424, 599 S.E.2d at 847, we have stated that “the
duty to redact or segregate is not necessarily absolute.” Id. at 422, 599 S.E.2d at 845. According
due regard to the “concern that information requests not become mechanisms to paralyze other
necessary government functions,” id. at 422 n.14, 599 S.E.2d at 845 n.14 (citing W. Va. Code §
29B-1-3(3)), we find no error in the circuit court’s conclusion that parts (3) and (4) of
petitioner’s FOIA request were unduly burdensome.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: June 18, 2020

CONCURRED IN BY:

Justice Elizabeth D. Walker
Justice John A. Hutchison

DISSENTING AND WRITING SEPARATELY:

Justice Margaret L. Workman

DISQUALIFIED:

Chief Justice Tim Armstead
Justice Evan H. Jenkins


Justice Workman, dissenting:

       I dissent from the majority’s memorandum decision in this case, which involves certain
requests for public information made pursuant to West Virginia Freedom of Information Act

                                                6
(“FOIA”), West Virginia Code §§ 29B-1-1 to -7. The Court upholds the circuit court’s clearly
erroneously application of the economic development exemption and determination that some of
the information sought from petitioner Appalachian Mountain Advocates (“petitioner”) was
unduly burdensome to produce, thus prohibiting disclosure of public records and information,
despite the fact that there was no evidence whatsoever to support the circuit court’s legal
conclusions.
        In this case, the circuit court granted the motion made by respondent West Virginia
University5 (“respondent” or “WVU”) to dismiss petitioner’s complaint for declaratory and
injunctive relief. In its complaint, petitioner had alleged that respondent unlawfully refused to
provide public records responsive to a FOIA which sought, in essence, 1) any agreements or
memorandum of understanding between West Virginia officials and the China Energy
Investment Corporation (“China Energy”) entered into in 2017; 2) any list of energy projects that
any West Virginia state officer, agency, or department provided to China Energy in 2017; and 3)
any correspondences sent or received by Energy Institute staff in 2017 that include the words
“China” and either “energy,” “coal,” or “gas.” In an email response, respondent claimed it was
not a signatory to the agreement and was not the custodian of the specific agreement. This
prompted the filing of petitioner’s complaint for declaratory and injunctive relief in circuit court.

        Respondent did not answer the complaint, but filed a motion to dismiss pursuant to West
Virginia Rule of Civil Procedure 12(b)(6). Respondent argued that certain records sought by
petitioner were exempt from disclosure under West Virginia Code § 5B-2-1, stating that
“writing[s] made or received by the West Virginia development office or other public body,
whose primary responsibility is economic development, for the purpose of furnishing assistance
to a new or existing business” are exempt from disclosure under FOIA unless the writing is an
“agreement . . . which obligates public funds.” Id. Additionally, respondent argued that the
requests for records or documents regarding correspondence of Energy Institute staff, which
requests, as noted, contained certain specified terms, were overly broad and unduly burdensome.
Respondent did not attach any affidavit, declaration, or Vaughan index to its motion in support
of either of its legal arguments.

        Following a hearing on respondent’s motion, at which no evidence was submitted either
orally or in writing, the circuit court, in a three-page order found that the documents sought by
petitioner were statutorily protected by the economic development exemption or that production
of the documents would be unduly burdensome and dismissed the complaint. Critically, not only
was this ruling made in the absence of any factual development by the parties, but also the circuit
court did not take judicial notice of any facts. Thus, the majority’s lengthy discussion
concerning the circuit court’s right to adjudicate an affirmative defense by, inter alia, taking
judicial notice of certain facts, is simply dicta. Succinctly put, there were no facts in evidence to
support the circuit court’s rulings, either by submission of the parties or by judicial notice.




       5
         Specifically, the request was made to West Virginia University Energy Institute
(“Energy Institute”) or any member of its staff.



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       As we have previously held, “‘[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).” Syl. Pt. 3, Charleston Gazette v.
Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013). Further, it is the party claiming the
exemption from the general disclosure requirement of the FOIA that has the burden of showing
the applicability of the claimed exemption to the requested material. See id. at 454, 752 S.E.2d at
608, Syl. Pt 4; see W. Va. Code § 29B-1-5(2) (“[t]he court shall determine the matter de novo
and the burden is on the public body to sustain its action.”). We further held in syllabus point six
of Farley v. Worley, 215 W. Va. 412, 599 S.E.2d 835 (2004), that

                       [w]hen 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. The Vaughn index need not
               be so detailed that it compromises the privilege claimed. The
               public body must also submit an affidavit, indicating why
               disclosure of the documents would be harmful and why such
               documents should be exempt. Syllabus point 3 of Daily Gazette
               Co., Inc. v. West Virginia Development Office, 198 W.Va. 563, 482
               S.E.2d 180 (1996), is hereby expressly modified.

Finally, we also recognized in Farley that “‘[s]ummary judgment is the preferred method of
resolving cases brought under FOIA.’” Id. at 418, 599 S.E.2d at 841 (Evans v. Office of
Personnel Mgmt., 276 F.Supp.2d 34, 37 (D.D.C.2003)).

        Despite the clear FOIA requirements and this Court’s precedent interpreting the Act, all
of which require respondent to prove the applicability of the economic development exemption
upon which it relied, as well as to demonstrate that certain requests were unduly burdensome,
respondent did nothing in this case to support its motion to dismiss. It did not produce a
Vaughan index, it presented no oral testimony, and it offered no affidavits or exhibits into
evidence. Instead, this case was decided by the circuit court on nothing more than unsworn
allegations made by respondent in its legal memoranda. Thus, the circuit court’s decision is in
clear contravention of the FOIA law enacted by the Legislature and further developed by this
Court’s precedents. The case should be reversed and remanded to the circuit court for further
development of the evidence to support (or possibly alter) its legal determinations.

       Respectfully, I dissent.

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