1 No. 13-0217 – Hurlbert v. Matkovich

Justice Ketchum, dissenting: The material sought by the petitioners contains information that violates the privacy exemption contained in the Freedom of Informatio n Act (“FOIA”), W.Va. Code § 29B-1-1 et seq . [2007]. W.Va. Code § 29B-1-4( a)(2) states that the following information is exempt from di sclosure under FOIA: “Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonabl e invasion of privacy[.]” “The core purpose of FOIA is, of course, to contribute to the public understanding of the operations or activities of the government .” Forest Guardians v.
U.S. FEMA , 410 F.3d 1 214, 1218 (10 th Cir. 2005) (Emphasis added, internal citation omitted). In Sylla bus Point 2 of Child Protective Group v. Cline , 177 W.Va. 29, 350 S.E.2d 541 (1986), this Court set forth the ba lancing test to be used when considering whether the public disclosu re of information under FOIA would constitute an unreasonable invasion of pr ivacy. The Court held:
In deciding whether the public disclosure of information of a personal nature under W.Va.Code § 29B–1– 4(2) (1980) would constitute an unreasonable invasion of privacy, this Court will look to five factors: 1. Whether disclosure would re sult in a substantial invasion of privacy and, if so, how serious. 2. The extent or value of the public interest, and the purpose or object of the individuals seeking disclosure. 

### FILED June 5, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 3. Whether the information is available from other sources. 4. Whether the information was given with an expectation of confidentiality. 5. Whether it is possible to mo uld relief so as to limit the invasion of individual privacy. 1 The focus in the presen t case is on the first two Cline factors. The first factor is whether the disclosure would re sult in a substantial invasion of privacy. Although the names and addresses of the home owners will be redacted, the material the petitioners seek contains “personal identif ying information” about every homeowner’s dwelling. The material sought includes deta iled information about each house’s (1) floor plans, (2) number of bathrooms, (3) number of bedrooms, (4) the construction material used, (5) the type of heating system, (6) whet her the house has a secu rity system, and (7) sketches and photographs of th e property. It contains the precise layout of each home, including a drawing and detailed description of the interior of the home that could affect each homeowner’s security. This detailed in formation about the in terior of each home constitutes a “substantial inva sion of privacy” that is protected by the exemption to FOIA

1 See also United States Dep't of Defense v. FLRA , 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (When weighing a FOIA request “a court must balance the public interest in disclosure ag ainst the [privacy] interest[.]”); see also Federal Labor Relations Auth. v. United States Dep't of Defense , 984 F.2d 370, 374 (10th Cir.1993). “If there is an important public in terest in the disclosure of in formation and the invasion of privacy is not substantial, the private interest in protecting the disclosure must yield to the superior public interest.” Alirez v. NLRB , 676 F.2d 423, 426 (10th Cir.1982). If, however, the public interest in the info rmation is “virtually nonexisten t” or “negligible ,” then even a “very slight privacy interest would suffice to outweigh the relevant public interest.” FLRA , 510 U.S. at 497, 500, 114 S.Ct. 1006. “ [E]ven a ‘minimal’ privacy interest . . . outweighs a nonexistent public interest .” Dep't of Defense , supra , 984 F.2d at 375 (emphasis added).3 contained in W.Va. Code § 29B-1-4(a)(2). See Heights Community Congress v. Veterans Admin., 732 F.2d 526, 529 (6th Cir.1 984) (explaining “there ar e few things which pertain to an individual in which his privacy has tr aditionally been more respected than his own home.”) (internal citation omitted). Therefore, the first Cline factor clearly weighs in favor of nondisclosure of this information. The second Cline factor also weighs in fa vor of nondisclosure of the information sought by the petitioners. The pe titioners have shown no “public interest . . . that requires disclosure” of the information th ey seek. In fact, th e petitioners are clear that they seek the in formation for business purposes, i.e. , they only want the information to make a profit. Our county assessors have spent millions of dollars gathering appraisal information on the real estate in their coun ties and the petitioners se ek this information for free to sell it for a profit. See National Ass'n of Retired Federal Employees v. Horner , 879 F.2d 873, 878 (D.C.C ir.1989) (“[O]ne need only assume that business people will not overlook an opportunity to get cheaply fr om the Government what otherwise comes dearly[.]). Because th e petitioners seek this information for thei r own private business interests and not for any pu blic interest, the second Cline factor weighs heavily in favor of nondisclosure. Based on the foregoing, I respectfully dissent.