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West Virginia Regional Jail and Correctional Facility Authority v. Marcum

Supreme Court of West Virginia

April 26, 2017

WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, Petitioner
v.
SHANE R. MARCUM, Respondent

          Submitted: April 4, 2017

         Appeal from the Circuit Court of Kanawha County Honorable Joanna I. Tabit, Judge Civil Action No. 15-C-1668.

          Patrick Morrisey Attorney General Benjamin Freeman Assistant Attorney General Charleston, West Virginia Attorneys for Petitioner

          Paul M. Stroebel Stroebel & Johnson, PLLC Charleston, West Virginia Attorney for Respondent

          Leah Perry Macia West Virginia Regional Jail Authority, Petitioner

          Vincent Trivelli Morgantown, West Virginia Attorney for Amicus Curiae Communications Workers of America, AFL-CIO

          Patrick Morrisey Attorney General John H. Boothroyd Assistant Attorney General Charleston, West Virginia Attorneys for Amicus Curiae West Virginia Division of Corrections

          David Allen Barnette Vivian H. Basdekis Jackson Kelly, PLLC Charleston, West Virginia Attorneys for Amicus Curiae West Virginia Broadcasters’ Association

         SYLLABUS BY THE COURT

         1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

         2. "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, and the exemptions to such Act are to be strictly construed. W. Va. Code, 29B-1-1 [1977]." Syllabus point 4, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).

         3. "The party claiming exemption from the general disclosure requirement under West Virginia Code § 29B-1-4 has the burden of showing the express applicability of such exemption to the material requested." Syllabus point 7, Queen v. West Virginia University Hospitals, Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).

         4. Pursuant to W. Va. Code § 29B-1-4(a)(19) (2016) (Supp. 2016) disclosure of a videotape of the cell extraction of an inmate is prohibited, because it displays part of the design of a correctional facility and the operational procedures of personnel relating to the management of inmates, such that, if disclosed, could be used by an inmate to escape from a facility or to cause injury to another inmate, resident or to facility personnel.

          Davis, Justice:

         The Petitioner in this matter, the West Virginia Regional Jail and Correctional Facility Authority ("the Regional Jail") brought this appeal from an order of the Circuit Court of Kanawha County. The circuit court's order required the Regional Jail turn over a videotape to the Respondent, Shane Marcum, pursuant to his request under the West Virginia Freedom of Information Act ("FOIA").[1] In this appeal, the Regional Jail contends that the videotape is exempt from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2) and (19) (2016) (Supp. 2016). After a careful review of the briefs and the appendix record, and listening to the argument of the parties, we reverse.[2]

         I. FACTUAL AND PROCEDURAL HISTORY

         The relevant facts in this proceeding are not in dispute. On February 27, 2015, Mr. Marcum was being held on felony charges in the Western Regional Jail in Cabell County, West Virginia. For reasons that have not been made clear by the parties, it was determined by authorities at the facility that Mr. Marcum had to be physically removed from his cell. At least four correctional officers were initially involved in what is called a "cell extraction."[3] To carry out the cell extraction, the officers tossed two flash bang grenades into the cell.[4] After tossing the grenades into the cell, the officers removed Mr. Marcum from his cell. The cell extraction and events immediately following were recorded on videotape by the Regional Jail.

         As a result of alleged injuries he received during the cell extraction, Mr. Marcum filed a civil action against the Regional Jail in circuit court. That proceeding was subsequently removed to federal court, where it is now pending. During the proceeding in federal court, Mr. Marcum requested a copyof the videotape that recorded his cell extraction. The Regional Jail agreed to provide a copy of the videotape "subject to a protective order." Mr. Marcum refused to accept the videotape under protective order conditions. Instead, Mr. Marcum requested the videotape pursuant to FOIA. By letter dated July 24, 2015, the Regional Jail refused to turn over the videotape under FOIA on the grounds that it was exempt under W. Va. Code §§ 29B-1-4(a)(2) and (19).

         In September 2015, Mr. Marcum filed a complaint for preliminary injunction and declaratory relief against the Regional Jail in circuit court. The complaint sought a court order requiring the Regional Jail turn over the cell extraction videotape under FOIA. Subsequent to a hearing on the matter, the circuit court entered an order on November 4, 2015, requiring the Regional Jail to produce the videotape to Mr. Marcum. This appeal of that order followed.

         II. STANDARD OF REVIEW

         In this proceeding, we are called upon to review a circuit court order that determined FOIA did not exempt disclosure of a cell extraction videotape. This issue presents a de novo review standard "because [it] requires an interpretation of West Virginia's FOIA[.]" Charleston Gazette v. Smithers, 232 W. Va. 449, 460, 752 S.E.2d 603, 614 (2013). We have long recognized that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

         III. DISCUSSION

         The Regional Jail contends that its videotape of the cell extraction of Mr. Marcum is exempted from disclosure under FOIA pursuant to W. Va. Code § § 29B-1 -4(a)(2) and (19). Mr. Marcum argues that there is no language in either of the statutory provisions that exempt release of the videotape.

         We begin by observing the framework for our statutory analysis. This Court has long held that "' [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.'" Huffman v. Goals Coal Co.,223 W. Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. Elder,152 W. Va. 571, 165 S.E.2d 108 (1968)). On the other hand, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). Further, as a general matter, "the words of a statute are to be given their ordinary and familiar significance and meaning[.]" Amick v. C & T Dev. Co., Inc.,187 W. Va. 115, 118, 416 S.E.2d 73, 76 (1992). "It is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial ...


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