KING v. NEASE

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Supreme Court of Appeals ofWest Virginia.

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, Defendants Below, Petitioners v. Richard J. NEASE and Lorinda J. Nease, husband and wife, Plaintiffs Below, Respondents.

No. 13–0603.

Decided: April 10, 2014

Johnnie E. Brown, Esq., Theresa M. Kirk, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Petitioners. James A. Dodrill, Esq., Law Office of James A. Dodrill, Hurricane, WV, E. Kay Fuller, Esq., Martin & Siebert, L.C., Martinsburg, WV, for Respondents.

The petitioners, the City of Nitro, its mayor and its fire marshal/code official (herein collectively referred to as the “City”), appeal from the April 25, 2013, order of the Circuit Court of Kanawha County granting summary judgment in favor of the respondents, Richard A. and Lorinda A. Nease (hereinafter the “Neases”), on the issue of whether this state's Freedom of Information Act (“FOIA”)1 authorizes the collection of a search fee in connection with a document request. Addressing a municipal ordinance enacted by the City that permits an hourly charge for document requests requiring more than ten minutes, the trial court ruled that West Virginia Code § 29B–1–3 (2012) authorizes public bodies to collect the costs of copying requested records but does not sanction a search fee. As support for its position that the Legislature contemplated more than just the costs of duplication, the City relies upon the plural form of the term “fees” used to reference the charges authorized for a FOIA request as well as the Legislature's subsequent adoption of legislative rules providing for search fees in reliance on this same authorizing language. Based upon the statutory language of FOIA and the agency-specific regulations that impose search fees under direct authority of FOIA, we determine that the fees authorized in conjunction with FOIA production requests include the actual costs of reproduction as well as a search or retrieval fee, provided that any such fee is reasonable. Accordingly, the decision of the circuit court is reversed.

I. Factual and Procedural Background

On June 14, 2012, the Neases served a FOIA request to inspect or copy certain public City records.2 The City responded to the request by letter dated June 19, 2012, indicating that it would “be working to compile the documentation requested.” When they failed to receive the documents originally requested, the Neases submitted a second FOIA demand on July 26, 2012. On July 31, 2012, the City sent the Neases a portion of the requested materials, consisting of both paper and electronic media.3 By letter of the same date, the City advised the Neases that “the remaining files Back [sic] to 2007 are paper & will be required to be manually pulled and copied. Please advise if you are willing to assume the expense of an employee's time, and the cost of photocopying.”

When the parties were unable to resolve this matter,4 the Neases instituted the underlying FOIA action.5 Both sides filed motions for summary judgment and, by ruling entered on April 25, 2013, the trial court granted summary judgment in favor of the Neases. As part of its ruling, the trial court determined that the City ordinance providing for the imposition of a search fee was unlawful.6 It is from this ruling that the City now appeals.

II. Standard of Review

The issue of statutory interpretation raised by the parties indisputably presents a question of law. As a result, our review of this matter is necessarily plenary. See Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 466 S.E.2d 424 (1995) (holding that “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review”); see also Syl. Pt. 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997) (stating that “[q]uestions of law are subject to a de novo review”). With this standard in mind, we proceed to consider the question of law before us.

III. Discussion

At the center of this statutory dispute is the following fee-related language: “The 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 issue presented in this case is whether the Legislature, through its adoption of the fee-authorizing language, has sanctioned the inclusion of a search fee in addition to the costs associated with producing documents requested under FOIA. Critically, this case is not about the refusal of a public body to provide access to documents based on statutorily-specified exemptions. See generally W.Va.Code § 29B–1–4 (2012) (setting forth bases for exempting access to public records); In re Charleston Gazette FOIA Request, 222 W.Va. 771, 671 S.E.2d 776 (2008). Neither is this case about the reasonableness of the search fee established by the City's ordinance.7 All that we are asked to decide is the precise question of whether FOIA allows a public body, pursuant to properly enacted statutes, rules, regulations, or ordinances, to include a search or retrieval fee for locating the requested documents.

In taking the position that FOIA does not contain a provision that allows public bodies to impose a search or retrieval fee, the Neases focus on the latter part of the statutory language at issue: “actual cost in making reproductions of records.” W.Va.Code § 29B–1–3(5). Because the statute does not separately and explicitly provide for the imposition of a search or retrieval fee, the Neases argue that FOIA fails to authorize the imposition of such a fee.8 Focusing solely on the “actual cost in making reproductions” language, the Neases insist that the Legislature authorized public bodies to collect only the costs of making the copies and nothing more.

Limiting its examination to the same terms that the Neases regard as resolvent, the circuit court addressed the meaning of the phrase “actual cost in making reproductions.” Turning to the definitions provided by a common dictionary, the trial court decided that the Legislature necessarily intended that “making reproductions” refers to “making copies.” Then, without any extended consideration of the terms “actual cost,”9 the circuit court declared that the five words under review necessarily refer solely to the duplication costs of the requested records.

To bolster its decision that a search or retrieval fee cannot be imposed under authority of FOIA, the circuit court relied upon FOIA statutes enacted by Virginia, Kentucky, Ohio, and California.10 Despite marked differences in the language of those statutes,11 the trial court looked to the manner in which those states address the issue of fees under their respective FOIA statutes. Based on its conclusion that other states have chosen to directly prohibit search fees or to directly authorize them,12 the circuit court decided that our Legislature would have squarely addressed the subject had it intended to authorize the imposition of search fees.13 See supra note 11.

In seeking extrajurisdictional guidance to interpret the FOIA phrase “actual costs in making reproductions,” the circuit court failed to appreciate the proper scope of its inquiry. The language subject to interpretation, as the City emphasizes, is more than just the five-word phrase examined by the trial court and the Neases. By constraining their focus to the meaning of “actual costs,” a separate critical statutory term was overlooked-“fees.” That term, as the City observes, is defined as “[a] charge for labor or services.” Black's Law Dictionary at p. 690 (9th ed.2009). In contrast, a “cost” is defined as “[t]he amount paid or charged for something; price or expenditure.” Id. at p. 397. Through the wholesale omission of any discussion of the term “fees,” the trial court and the Neases skirted crucial statutory language that must be considered in resolving the matter before us. See State ex rel. Johnson v. Robinson, 162 W.Va. 579, 582, 251 S.E.2d 505, 508 (1979) (observing “that the Legislature is presumed to intend that every word used in a statute has a specific purpose and meaning”).

As this Court recognized in HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996), “[i]t is a fundamental principle of statutory construction that the meaning of a word cannot be determined in isolation, but it must be drawn from the context in which it is used.” Id. at 338, 472 S.E.2d at 423. Elucidating further, we observed that “[o]ften, ‘the meaning of a word that appears ambiguous if viewed in isolation [will] become clear when the word is analyzed in light of the terms that surrounds it.’ “ Id. (quoting Smith v. United States, 508 U.S. 223, 229, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)). Because the Legislature has provided for the recovery of fees and not just actual costs, as advocated by the Neases, we must proceed to determine whether the term “fees” was intended to cover more than just mere duplication-related costs.

Given that the Legislature has previously relied upon the fee-authorizing language of FOIA before us, we do not have to decide this issue without guidance. On three separate occasions, the Legislature has formally approved legislative rules that establish search fees in connection with FOIA document requests submitted to various state agencies. See 24 C.S.R. § 5–4 (2011) (providing for $30 record search fee of Board of Osteopathy record requests); 60 C.S.R. § 2–11 (2010) (setting $20 per hour search fee for DEP record requests); 61 C.S.R. § 2–7.1.c (1990) (adopting $10 per hour search fee for agricultural record requests). The specified authority for the adoption of each of the above agency-proposed search fees was West Virginia Code § 29B–1–3–the same provision at issue in this case.

It is axiomatic that “[a] regulation that is proposed by an agency and approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act, W.Va.Code, 29A–1–2(d) [1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v. West Virginia Human Rights Comm'n, 216 W.Va. 2, 602 S.E.2d 445 (2004). Through the Legislature's formal approval of legislative rules which establish the use of agency-specific search fees under authority of FOIA, there can be no dispute that search fees may be included as part of a FOIA request. Given the undeniably clear position of the Legislature on this issue, we find no basis for questioning whether search fees may be imposed under authority of FOIA. Consequently, we hold that pursuant to West Virginia Code § 29B–1–3(5), a public body is vested with the authority and discretion to impose a search or retrieval fee in connection with a FOIA request to provide public records provided that such fee is reasonable. As a result of this ruling, we conclude that the circuit court erred in its determination that the City lacked authority to enact an ordinance providing for a search fee in connection with a FOIA request.

We wish to make clear that our decision in this matter did not require, or even demand, a consideration of the policy reasons which underlie FOIA. While the trial court found it necessary to draw upon this Court's previous recognition that “[t]he disclosure provisions of this State's Freedom of Information Act, ․ are to be liberally construed, and the exemptions to such Act are to be strictly construed,” no disclosure-related provision was at issue in this case. See Syl. Pt, 4, in part, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985). The City never sought to prevent the Neases from having access to the documents they sought to inspect. Instead, it merely sought to charge a search fee in connection with its culling of five years worth of documentation that the Neases requested. And this Court, rather than weighing in on access versus non-access, was merely called upon to apply established statutory language on which the Legislature itself has relied in approving FOIA-related search fees by multiple state agencies. This case was never about the denial of access to public records; instead, the limited issue presented here was the validity of a fee enacted pursuant to clear statutory authority.

IV. Conclusion

Based on the foregoing, we find that the decision of the Circuit Court of Kanawha County to award of summary judgment to the respondents through its order of April 25, 2013, was in error and, accordingly, we reverse.

Reversed.

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.

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 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 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, 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.

LOUGHRY, Justice:

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