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11/20/86 DAILY GAZETTE COMPANY v. CARL WITHROW

November 20, 1986

THE DAILY GAZETTE COMPANY, INC., A WEST VIRGINIA CORPORATION
v.
CARL WITHROW, AS SHERIFF OF KANAWHA COUNTY, WEST VIRGINIA



Appeal from Kanawha County, Reversed.

The opinion of the court was delivered by: Mchugh

1. "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, . . . W.Va. Code, 29B-1-1 [1977]." Syl. pt. 4 (in part), Hechler v. Casey W.Va. , 333 S.E.2d 799 (1985).

2. A release or other litigation settlement document in which one of the parties is a public body, involving an act or omission of the public body in the public body's official capacity, is a "public record" within the meaning of a freedom of information statute, such as W.Va. Code, 29B-1-2(4), as amended, defining a "public record" as a writing which contains information "relating to the conduct of the public's business[.]"

3. Lack of possession of an existing writing by a public body at the time of a request under the State's Freedom of Information Act is not by itself determinative of the question whether the writing is a "public record" under W. Pa. Code, 29B-1-2(4), as amended, which defines a "public record" as a writing "retained by public body." The writing is "retained" if it is subject to the control of the public body.

4. Assurances of confidentiality do not justify withholding public information from the public; such assurances by their own force do not transform a public record into a private record for the purpose of the State's Freedom of Information Act.

5. A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity.

6. For a person prevailing in an action under the State's Freedom of Information Act to recover reasonable attorney's fees, the evidence before the trial court must show bad faith, vexatious, wanton or oppressive conduct on the part of the custodian of the public record(s).

McHugh, Justice:

This action is before this Court upon appeal by the appellant, The Daily Gazette Company, Inc., a West Virginia corporation, from two final orders entered by the Circuit Court of Kanawha County, West Virginia (the trial court). The first order denied the appellant's request for certain injunctive relief against the appellee, Carl Withrow, as Sheriff of Kanawha County, under the provisions of this State's Freedom of Information Act, W.Va. Code, 29B-1-1 [1977], et seq. The trial court's second order denied certain declaratory relief. This Court has before us the petition for appeal, all matters of record and the brief and oral argument of counsel for the appellant.

I.

A. THE FACTS

A former deputy sheriff of Kanawha County, West Virginia, brought a federal civil rights action against the appellee herein, Carl Withrow, then Sheriff of Kanawha County. *fn1 The complaint in the civil rights action alleged that Withrow, acting "individually" and as sheriff, had wrongfully discharged the former deputy sheriff from his job. The allegation was that Withrow had discharged the deputy to prevent him "from [pursuing] his official duties in the investigation of a crime and to punish and discourage [him] in the exercise of his right of free speech as guaranteed him under the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983."

This federal civil rights action and Withrow's counterclaim were dismissed as the result of a settlement between the parties. In its dismissal order the United States District Court for the Southern District of West Virginia noted that the parties and their counsel had agreed not to disclose the terms of the settlement. By an earlier order that court had determined that the file of the action was to be unsealed, with some exceptions not relevant to the present case before this Court.

The Daily Gazette Company ("the Gazette"), the appellant herein, requested in writing, pursuant to the provisions of this State's Freedom of Information Act, W.Va. Code, 29B-1-1 [1977], et seq., that Withrow, as custodian of the records in the sheriff's office, make copies of, or allow inspection and copying of, any documents reflecting the terms of the settlement discussed above, as well as copies of any documents reflecting the terms of an earlier "confidential" settlement of a federal civil rights action against two sheriff's deputies employed by Withrow, involving a claim that those two deputies had beaten a county jail inmate.

Withrow responded to this request by a letter stating that there were no documents in his office relating to any lawsuit settlements from 1981 (when he took office) to the present. The Gazette thereafter requested in writing that the sheriff obtain copies of any such lawsuit settlement documents from the insurer, attorney or any other person having possession of the same.

By letter from counsel, Withrow refused to comply with the Gazette's second request. Withrow's counsel was of the opinion that the lawsuit settlement documents were not required by law to be maintained in the sheriff's records where no public funds had been expanded as a result of the settlements. He also was of the opinion that such documents were not "public records" under this State's Freedom of Information Act where the documents were prepared by counsel for the sheriff or his deputies in their individual capacities.

The Gazette, pursuant to W.Va. Code, 29B-1-5 [1977], brought an action against Withrow, as custodian of the sheriff's records, requesting the following relief:

(1) an order enjoining the sheriff from withholding the requested records and ordering production of the same;

(2) a declaratory judgment that the sheriff is required at common law to maintain such records in his ...


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