No. 14-0370, Highland Mining Company v. West Virginia University School of Medicine,

                                                                             FILED
                                                                          May 21, 2015
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA


Justice Ketchum, concurring, in part, and dissenting, in part:


              I agree with the excellent majority opinion that the “deliberative process”

exemption applies to the documents withheld by WVU except for the few documents that

are post-decisional and/or non-deliberative. However, I believe this Court should have

recognized the “academic freedom” exemption adopted by other states and not required

the production of any documents.1 Research professors should not be constrained by

FOIA witch hunts which could deter them from pursing their work for fear of being

barraged by voluminous, unduly-burdensome FOIA requests.


              In addition, I believe that WVU should not be required to retrieve and

review additional materials “not yet gathered” to comply with Highland Mining’s open-

ended FOIA requests. Highland Mining’s FOIA requests have caused WVU to review


       1
        Virginia adopted the “academic freedom” exemption by statute. Virginia Code §
2.2-3705.4(4) (2014), sets forth a FOIA exemption covering:

                      Data, records or information of a proprietary nature
              produced or collected by or for faculty or staff of public
              institutions of higher education, other than the institutions’
              financial or administrative records, in the conduct of or as a
              result of study or research on medical, scientific, technical or
              scholarly issues, whether sponsored by the institution alone or
              in conjunction with a governmental body or a private
              concern, where such data, records or information has not been
              publicly released, published, copyrighted or patented.
                                             1


over 240,000 documents. Enough is enough. Highland Mining’s broad-based FOIA

requests are nothing more than fishing expeditions which are unduly burdensome. My

best trial lawyer guess is that WVU has already spent more than $1 million dollars on its

legal fees, and the fees and costs of the document management company it hired.


               Next, I would not have remanded the case for the circuit judge to determine

whether Highland Mining instituted a “successful FOIA action” that would warrant an

award of attorney fees. Our FOIA statute, W.Va. Code § 29B-1-7, provides that a

requester shall be entitled to recover attorney fees and costs if their FOIA suit is

successful.2 See also, Daily Gazette Co., Inc. v. W. Va. Development Office, 206 W.Va.

51, 521 S.E.2d 543 (1999). While syllabus point 7 of Daily Gazette3 provides a general


      2
          W.Va. Code § 29-1-7 states:

                       Any person who is denied access to public records
               requested pursuant to this article and who successfully brings
               a suit filed pursuant to section five of this article shall be
               entitled to recover his or her attorney fees and court costs
               from the public body that denied him or her access to the
               records.
      3
          Syllabus Point 7 of Daily Gazette states:

                      For a person to have brought a suit for the disclosure
               of public records under the West Virginia Freedom of
               Information Act (FOIA), as permitted by W. Va.Code § 29B–
               1–5 (1977) (Repl.Vol.1998), so as to entitle him/her to an
               award of attorney’s fees for “successfully” bringing such suit
               pursuant to W. Va.Code § 29B–1–7 (1992) (Repl.Vol.1998),
               he/she need not have prevailed on every argument he/she
               advanced during the FOIA proceedings or have received the
               full and complete disclosure of every public record he/she
               wished to inspect or examine. An award of attorney’s fees is
                                              2
statement of when attorney fees may be appropriate in a FOIA case, this Court has never

set forth the specific parameters of what constitutes a successful FOIA suit. The vast

majority of jurisdictions require that the FOIA requester substantially prevail before

attorney fees may be awarded. The majority rule across the United States provides:

                     [T]o be "eligible" to receive an award of attorney’s
             fees or costs, plaintiffs must show that they "substantially
             prevailed" in obtaining the documents sought. This does not
             mean that the plaintiffs need necessarily have pursued the
             action to a successful judgment. Rather, proof that a plaintiff
             has "substantially prevailed" generally has been held to
             require convincing evidence of the following two threshold
             conditions: (1) the filing of the action could reasonably have
             been regarded as necessary to obtain the information; and (2)
             the filing of the action had a substantial causative effect on
             the delivery of the information.

Construction and Application of Freedom of Information Act Provision (5 U.S.C.A. §

552(a)(4)(E)) Concerning Award of Attorney’s Fees and Other Litigation Costs, 179

A.L.R. Fed. 1, § 2[a] (2002).


             The majority opinion guts the heart of Highland Mining’s FOIA requests.

WVU had to retrieve and review over 200,000 documents as a result of Highland

Mining’s FOIA requests. The majority opinion’s ruling only requires WVU to disclose a

few documents, approximately 1% of those Highland requested. Highland Mining lost


             proper even when some of the requested records are ordered
             to be disclosed while others are found to be exempt from
             disclosure or are released in redacted form. In the final
             analysis, a successful FOIA action, such as would warrant an
             award of attorney’s fees as authorized by W. Va.Code § 29B–
             1–7, is one which has contributed to the defendant’s
             disclosure, whether voluntary or by order of court, of the
             public records originally denied the plaintiff.
                                           3


the major issues that were in dispute herein. Common sense and simple math dictate the

obvious—Highland Mining did not substantially prevail. Rather, the only thing Highland

Mining accomplished was placing an expensive, unreasonable burden on WVU.


              Finally, the majority opinion states that on remand, the circuit court must

determine if this case should be dismissed after Highland submits its reduced FOIA

requests. The majority states that if the circuit court does not dismiss the case upon

remand, the circuit court should consider the appointment of a special commissioner

pursuant to Rule 53 of the West Virginia Rules of Civil Procedure.              This special

commissioner would review the documents WVU produces to determine whether they

are exempt from disclosure under our FOIA. Special commissioners are paid by the

parties. They are super expensive. They are lawyers who usually charge for numerous

hours at high hourly rates.     These types of expenses have a tendency to lock the

courthouse doors, depriving litigants of their day in court.


              For the foregoing reasons, I respectfully concur, in part, and dissent, in part.




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