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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 Information 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 disclosure 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 unreasonable 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 1214, 1218 (10th Cir. 2005) (Emphasis added, internal citation 

omitted). In Syllabus Point 2 of Child Protective Group v. Cline, 177 W.Va. 29, 350 

S.E.2d 541 (1986), this Court set forth the balancing test to be used when considering 

whether the public disclosure of information under FOIA would constitute an 

unreasonable invasion of privacy. 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 result 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 VIRGINIA
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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 mould relief so as to limit the 

invasion of individual privacy.1

 The focus in the present case is on the first two Cline factors. The first 

factor is whether the disclosure would result in a substantial invasion of privacy. 

Although the names and addresses of the homeowners will be redacted, the material the 

petitioners seek contains “personal identifying information” about every homeowner’s 

dwelling. The material sought includes detailed 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) whether the house has a security system, and (7) 

sketches and photographs of the 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 information about the interior of each home 

constitutes a “substantial invasion 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 against 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 interest in the disclosure of information 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 information is “virtually nonexistent” 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).
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contained in W.Va. Code § 29B-1-4(a)(2). See Heights Community Congress v. Veterans 

Admin., 732 F.2d 526, 529 (6th Cir.1984) (explaining “there are few things which pertain 

to an individual in which his privacy has traditionally 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 favor of nondisclosure of the 

information sought by the petitioners. The petitioners have shown no “public interest . . . 

that requires disclosure” of the information they seek. In fact, the petitioners are clear 

that they seek the information 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 counties and the petitioners seek 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.Cir.1989) (“[O]ne need only assume that business people will not 

overlook an opportunity to get cheaply from the Government what otherwise comes 

dearly[.]). Because the petitioners seek this information for their own private business 

interests and not for any public interest, the second Cline factor weighs heavily in favor 

of nondisclosure. 

 Based on the foregoing, I respectfully dissent.