IN THE SUPREME COURT OF A PPEALS OF WEST VIRGINIA January 2014 Term

No. 13-0217

ROGER HURLBERT and SAGE INFORMATION SERVICES, Plaintiffs Below, Petitioners

v. MARK MATKOVICH, Acting Tax Commissioner, West Virginia State Tax Department, Defendant Below, Respondent and SALLIE ROBINSON, Kanawha County Assessor, Intervenor Below, Respondent
Appeal from the Circuit Court of Kanawha County The Honorable Charles E. King, Jr., Judge Civil Action No. 11-C-1762
REVERSED AND REMANDE D WITH DIRECTIONS
Submitted: April 8, 2014 Filed: June 5, 2014 Rudolph L. DiTrapano, Esq. Patrick Morrissey, Esq. Sean P. McGinley, Esq. Attorney General Katherine R. Snow, Esq. Katherine A. Schultz, Esq. DiTrapano Barrett DiPiero McGinley Senior Deputy Attorney General & Simmons, PLLC Charleston, West Virginia Charleston, West Virginia Attorneys for Respondent Attorneys for Petitioners 

### FILED June 5, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAKaren Tracy McElhinny, Esq. Shuman, McCuskey & Slicer PLLC Charleston, West Virginia Attorney for Intervenor

The Opinion of the Court was delivered PER CURIAM. JUSTICE LOUGHRY concurs and reserves th e right to file a concurring opinion. JUSTICES KETCHUM dissents and reserves the right to file a dissenting opinion.i SYLLABUS BY THE COURT

1. “This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley
v. State Farm Mut. Auto. Ins. Co. , 213 W.Va. 80, 576 S. E.2d 807 (2002).

2. “Where the issue on an appeal from the circuit co urt is clearly a question of law or involv ing 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).

3. “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].” Syl. Pt. 4, Hechler v. Casey , 175 W. Va. 434, 3 33 S.E.2d 799 (1985).

4. “The primary purpose of the i nvasion of privacy exemption to the Freedom of Information Act, W. Va. Code , 29B-1-4[a](2) [1 977], is to protect individuals from the injury and embarrassment that ca n result from the unnecessary disclosure of personal information.” Syl. Pt. 6, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).ii 5. “In deciding whether the public disclosure of information of a personal nature under W. Va. Code § 29B-1-4(2) (1 980) would constitute an unreasonable invasion of priv acy, 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 indivi duals seeking disclosure. 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.” Syl. Pt. 2, Child Protection Group v. Cline , 177 W. Va. 29, 350 S.E.2d 541 (1986).

6. “Under W. Va. Code 29B-1-4[a](2) [1977], a court must balance or weigh the individual’s right of privacy against the public’s right to know.” Syl. Pt. 7, Hechler v. Casey , 175 W.Va. 434, 33 3 S.E.2d 799 (1985).

7. “In response to a proper Freedo m of Information Act request, a public body has a duty to redact or se gregate exempt from non-exempt information contained within the public r ecord(s) responsive to the FOIA request and to disclose the nonexempt information unless such segreg ation or redaction would impose upon the public body an unreasonably high burden or expense. If the public body refuses to provide redacted or segregated copies because the process of redacting or segregating would impose an unreasonably hi gh burden or expense, the p ublic body must provide the requesting party a written response that is su fficiently detailed to ju stify refusal to honoriii the FOIA request on these grou nds. Such written response, however, need not be so detailed that the justification would compro mise the secret nature of the exempt information.” Syl. Pt. 5, Farley v. Worley , 215 W.Va. 412, 5 99 S.E.2d 835 (2004).

8. “When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va. Code, 29B-1-4 (2002 Re pl. Vol.) (2003 Supp.), the public body must produce a Vaughn index named for Vaughn v. Rosen , 484 F.2d 820 (D.C.Cir.1973), cert. denied , 415 U.S. 977, 94 S. Ct. 1564 , 39 L.Ed.2d 87 3 (1974). The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption un der W. Va. Code, 29B- 1-4 is relevant and correlating the claimed exemption with the par ticular part of the withheld document to which the claimed exemption applies. . . .” Syl. Pt. 6, in part, Farley v. Worley , 215 W.Va. 412, 599 S.E.2d 835 (2004).

.1 Per Curiam:

Petitioners/plaintiffs below Roger W. Hurlbert and Sage Information Services (hereinafter “petitioners”) appeal the Circuit Court of Kanawha County’s January 14, 2013, order granting summary j udgment to respondent/defendant Mark Matkovich, Acting Tax Commissioner, West Virginia State Tax Department (“Tax Commissioner”) and respondent/intervenor Sa llie Robinson, Kanawh a County Assessor (“Kanawha County Assessor”) (hereinafter collectively “respondents”), in this declaratory judgment action brought pursuan t to the Freedom of Information Act (hereinafter “FOIA”). In granting summary judgment to respondents, the circuit court found that petitioners were not entitled to disclosure of the Computer-Assisted Mass Appraisal (“CAMA”) files for all real pr operty in the State of West Virginia.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority , we find that the circuit court erred in concluding that the CAMA f iles are categorically exempt from production pursuant to a FOIA request and remand for submission of a Vaughn 1 index and further findings by the circuit court consistent with this opinion.

1 Vaughn v. Rosen , 484 F.2d 820 (D.C.Cir.1973), cert. denied , 415 U.S. 977, 94 S. Ct. 1564, 39 L.Ed.2d 873 (1974).2 I. FACTS AND PROCEDURAL HISTORY Petitioner Roger Hurlbert, a re sident of California, is the sole proprietor of petitioner Sage Information Serv ices. Petitioners assert that their business involves “the prevention and apprehension of mortgage fr aud through the automated verification of appraisal data.” On May 16, 2011, petiti oners made a written request to the Tax Commissioner for “a copy, on CD or similar electronic medi a, of both the assessment files and the CAMA files for all real property in all counties.” Petitioners enclosed a sixpage itemization of the fields of data fro m the CAMA files they were requesting.

The parties are largely agre ed as to the following encapsulation of the tax appraisal process, an unders tanding of which is necessary to differentiate the various characterizations and labels of the two t ypes of information at issue herein—the assessment files and the CAMA files. The co unty assessors are charged by statute with the collection of information for use in assessment of property taxes. See W. Va. Code § 11-1A-12(a) (1991) (“It is the intent of the Legislature that in carrying out the appraisal functions required by this article, the Tax Commissioner shall utilize the county assessorsand their employees.”) All county assessors in West Virginia perform ComputerAssisted Mass Appraisal (“CAMA”) and input data collected during their assessment functions into a statewide Integrated As sessment System (“IAS”) maintained and administered by the Tax Commissioner. The Tax Commissioner has access to the information in the IAS (and therefore the CAMA files) for purposes of supervision,3 auditing, and oversight; howeve r, only the county assessors can input or change the data therein.

As part of the real property assessm ent process, the county assessor is charged with “mak[ing] out the land book s” which contain the tax ticket number, taxpayer name, map, parcel, deed book/page, property description, assessed value, and tax for each parcel of property in the county, as more particularly described in West Virginia Code § 11-4-1 et seq . This information is public ly available in the county offices; respondents contend that the “assessment files” requested by petitioners are merely a compilation of the information in the publicly-available land books.

The CAMA files, on the other hand, may include more detailed information about various properties including sketches/pho tos of the property, floor plans, number of bathrooms/bedrooms, type of c onstruction material, type of he ating, topography, etc. In addition, the CAMA files may contain inform ation which respondents have characterized as sensitive and personal information such as whether the residence has a security system, whether the resident is hom e during the day, whether the resident has a disability, whether the residence is unoccupied due to nursing home stays or otherwise vacant. With regard to commercial pr operties, the CAMA files c ontain information regarding profits/losses, blueprints, photographs, business income, and other information that could ostensibly provide a competitiv e advantage. The CAMA file s for industrial properties4 contain similar information but also incl ude the names of buildings and types of storage/operation in each, whic h respondents allege presen t homeland security issues. 2

In response to petitioners’ FOIA request, the Tax Commissioner: 1) granted the request for the assessment files in exchange for payment of $9.23 in copying expense; and 2) denied the request for the CAMA files, stating that it was not the custodian of those records, but rather, the county assessors were the custodians. 3

2 As pertains to these latter two categorie s of real property, the West Virginia Manufacturers’ Association submitted an amicus curiae brief in this matter mirroring the arguments advanced by respondents. We wish to acknowledge and express our appreciation for its submission.

3 Notably, however, the Tax Commissioner has released CAMA files for counties in the past if the county a ssessor agreed to such disclosure in writing. The appendix record also contains a letter from the Tax Commissioner to all West Virginia county assessors dated November 23, 2009, stating that [o]ur position is that the provis ions of West Virginia Code § 11-1A-23 (2013 Repl. Vol.) do not protect appraisal records from disclosure, unless the reco rds contain taxpayer return information that is specifica lly protected from disclosure statute [sic]. . . . . Many county assessors freely disclose most appraisal data or ask that th e Tax Commissioner do so on their behalf. Moreover, Kanawha County (and others) regularly sold CAMA files to various vendors in the recent past. In fact, the Tax Commissioner pr oduced a listing in discovery of all of the third-parties to whom CAMA data had been released in the past five years, yielding a considerable number of disclosure s. One of the vendors to whom Kanawha County in particular produced its CA MA files—Spec-Print—makes various West Virginia counties’ CAMA data available on line. The Kanawha C ounty Assessor claims, however, that it has not released any CAMA files since 2008 and certainly has not disclosed the 2011-2012 tax year informati on requested by petitioners . In addition, many counties make at least some of th eir CAMA data available online.5 Petitioners requested that the Tax Commi ssioner revisit its denial, but the Tax Commissioner refused to change its position. Petitioners did not avail themselves of the assessment files which were offered. At no time prior to the litigation did the Tax Commissioner claim any statutorily-enumerated FOIA exemption; rather, it claimed simply that it was not the cust odian of the CAMA files.

As a result, petitioners filed the inst ant action seeking de claratory judgment and injunctive relief; the Kanawha County Assessor was thereafter granted permission to intervene. The parties exchanged writte n discovery, followed by cross-motions for summary judgment. The circuit court advised the parties that it believed the matter could be decided as a matter of law and that a ny factual issues could be expedited and developed through evidentiary testimony rather than discove ry depositions. The parties ostensibly agreed; therefore, no depositions were conducted. Nor were witnesses called during the hearing on the motio ns for summary judgment. Respondents filed multiple affidavits in support of their position; pe titioners submitted none. No party requested additional discovery pursuant to West Vi rginia Rule of Ci vil Procedure 56(f).

The circuit court granted summary ju dgment to respondents, concluding that the CAMA files were exempt from production under FOIA. In reaching this conclusion, the circuit court found that 1) certain of the CAMA data is exempt from disclosure as “return information” and secur ity system information specifically exempted by West Virginia Code § 11-1A-23(a) (2007) and “trade secrets” exempted by West6 Virginia Code § 29B-1-4(a)(1) (2007); 2) the CAMA files contai ned “information of a personal nature,” the disclosure of which constituted an unrea sonable invasion of privacy pursuant to the five-factor te st in Syllabus Point 2 of Child Prot. Grp. v. Cline , 177 W. Va. 29, 350 S.E.2d 541 (1986); and 3) because of the foregoin g, the issue of whether the Tax Commissioner was the “custodian” of th e CAMA files was moot. This appeal followed.

II. STANDARD OF REVIEW It is well-established th at “[t]his Court reviews de novo the denial of a motion for summary judgment, wher e such a ruling is properly re viewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co. , 213 W.Va. 80, 576 S.E.2d 807 (2002). Moreover, “[w]here th e issue on an appeal from the circuit court is clearly a question of law or involv ing 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). We note further, however, that with regard to FOIA, “summary judgment is viewed through the evidentiary burden pl aced upon the public body to justify the withholding of materials.” Farley v. Worley , 215 W.Va. 412, 418, 599 S.E.2d 835, 841 (2004). See also W. Va. Code § 29B-1-5(2) (1977) (“In any suit filed under subsection one of this section [W. Va. Code § 29B-1-1] . . . . the burden is on the public body to sustain its action.”). With this standard in mind, we proceed to the parties’ arguments.7 III. DISCUSSION Petitioners set forth twelve assignments of error, nearly all of which are simply different arguments in support of th eir position that the circuit court erred in finding that the CAMA files ar e exempt from disclosure. Given our resolution of this matter, we find it unnecessary to address all but three issues: whether the Tax Commissioner is the “custodian” of the re cords, whether the CAMA files are categorically exempt from disclosure, and if not, whether the circuit court erred in failing to require the parties to submit a Vaughn index. 4

A. “Custodian” of the CAMA Files 5 West Virginia’s FOIA, codified in West Virginia Code § 29B-1-1 et seq

. (2007), provides that “[t]he cu stodian of any public record s, unless otherwise expressly provided by statute, shall furnish proper an d reasonable opportunities for inspection and examination of the records in his or her offi ce . . . .” W. Va. Code § 29B-1-3(3). “Custodian” is defined as “the elected or ap pointed official charged with administering a public body.” W. Va. Code § 29B-1-2(1). Petitioner asserts that the Tax Commissioner

4 In addition to the primary assignments of error addresse d herein, petitioners asserted that the circuit court erred by 1) relying on affidavits submitted by respondents; 2) failing to reach the “custodian” issue; 3) refusing to consider the public domain doctrine; and 4) failing to find that the Tax Commissioner waived any FOIA exemptions.

5 As to this first issue, we note that the circuit court did not reach the issue of whether the Tax Commissioner was the “custodian ” of records, finding it moot in light of its ruling that the data was not subject to disc losure in any event. However, in light of our ultimate disposition herein, we will address this issue in the interest of judicial economy.8 is clearly the “custodian” of the CAMA files inasmuch as it concedes that it has possession of the files. Respondents staunc hly maintain, however, that mere possession of the data is insufficient to make the Tax Commissioner the “custodian” of the data and that the critical inquiry is which entity “controls” the data Because the Tax Commissioner cannot input or a lter the data, respondents contend that it is not the “custodian.”

This issue is easily reso lved by application of bo th the plain language of our FOIA statute and prior hol dings illustrating the import of that language. In Syllabus Point 2 of Shepherdstown Obser ver, Inc. v. Maghan , 226 W. Va. 353, 700 S.E.2d 805 (2010), this Court held: Under the West Virginia Freedom of Information Act (FOIA), W. Va. Code , 29B-1-1, et seq ., a “public record” includes any writing in the possession of a public body that relates to the conduct of the public’s business which is not specifically exempt from disclosure by W. Va. Code , 29B-1- 4, even though the writing was not prepared by, on behalf of, or at the request of, the public body. (emphasis added). The CAMA files are cont ained in the computer system maintained and administered by the Tax Commissioner; ther e is no question that the electronic files constitute “records in his or her office.” In fact, the Tax Commissioner below readily admitted that it could, prev iously has, and in fact would produce the data if written permission were given by the Assessors. See n.3, supra . The CAMA data is collected to enable the Tax Commissioner to fulfill his obligations pursuant to West Virginia Code § 11-1A-1 et seq.: “In conducting the reappr aisals of property mandated by the West9 Virginia Constitution and requir ed by this article, the Tax Commissioner shall appraise all property[.]” W. Va. Code § 11-1A-1(a). Therefore, not only does the data satisfy the possession element as set forth in Maghan, but the data is also prepared “on behalf of” and “at the request of” the Tax Commissioner. The respondents’ hai r-splitting about the vagaries of the administration of the IAS syst em and the division of administrative duties regarding the collection of this data misses the point entirely.

This Court’s jurisprudence on this issue clearly demonstrates a liberal construction of “custodian” and not only co untenances disclosures if the requested records are, at a minimum, in possession of the public entity, but has been extended to require disclosure of documents over which the public body does not possess, but merely exercises control. See Syl. Pt. 3, Daily Gazette Co., Inc. v. Withrow, 177 W.Va. 110, 350 S.E.2d 738 (1986), superseded by statute on other grounds , Daily Gazette Co., Inc. v. W. Va. Dev. Office , 206 W.Va. 51, 521 S.E.2d 54 3 (1999) (holding that “ lack of possession” not determinative where the writing is “subj ect to the control of the public body” (emphasis added)); see also Kissinger v. Reporters Comm. , 445 U.S. 136, 151 (1980) (“[A]gency possession or control is prerequisite to triggering any duties under the10 FOIA.” (emphasis added)). Accordingly, we find that the Tax Commissioner is the “custodian” of the subject files. 6

B. Disclosure of CAMA files 1. Exemption by Statute West Virginia’s FOIA provides generally that “ [e]very person has a right to inspect or copy any public r ecord of a public bod y in this State, except as otherwise expressly provided by s ection four [§ 29B-1-4] of this article.” W. Va. Code § 29B-1- 3(1) (emphasis added). The statute defines “person” as including “any natural person, corporation, partnership, firm or asso ciation.” W. Va. Code § 29B-1-2(2). 7 However, as

6 In reaching this conclusi on, however, we do not precl ude the potential for the various county assessors to likewise be considered “custodian s” of this data to the extent that they satisfy the statutory criteria.

7 Respondent Tax Commissioner contends in his brief th at “because the Petitioners are not taxpayers, or residents of this State, the protections afforded by FOIA . . . do not extend to them.” This is pate ntly incorrect, as evidenced by the use of the term “person” and its commensurate definition contained in the statute. In fact, the overwhelming majority of the states’ FOIA statutes have no such language restricting FOIA requests to their citizenry; only eight states rest rict FOIA requests in such a manner. Compare Ala. Code § 36-12-40 (2 012 Cum. Supp.) (“Every citizen ha s a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute”); Ark. Code Ann. § 25–19–105 (a )(1)(A) (2011 Supp.) (“[A]ll public records shall be open to inspection and copying by any citizen of the State of Arkans as during the regular business hours of the custodian of the records.”); Del. Code Ann. tit. 29, § 10003 (2012 Supp.) (“Reasonable acce ss to and reasonable facilities for copying of [] [public] records shall not be denied to any citizen.” ); Mo. Rev. Stat. § 109.180 (2012) (“[A]ll state, county and municipal r ecords kept pursuant to statut e or ordinance shall at all reasonable times be open for a personal inspec tion by any citizen of Missouri[.]”); N. H. Rev. Stat. Ann. § 91-A:4 (Wes t 2012) (“Every citizen . . . has the right to inspect all governmental records in the possession, cust ody, or control of su ch public bodies or (continued . . .)11 indicated, West Virginia Code § 29B-1-4 provides a number of categories of information which are exempt from disclosure including “[i]nformation of a personal nature” and “[i]nformation specifically exempted from disclo sure by statute.” W. Va. Code §§ 29B- agencies[.]”); N. J. Stat. Ann. § 47:1A-1 (W est 2003) (“[G]overnment records shall be readily accessible for inspection, copying, or examination by th e citizens of this State[.]”); Tenn. Code Ann. § 10-7-503(a)(2)(A ) (2012) (“All state, county and municipal records shall . . . be open fo r personal inspection by any citiz en of this state[.]”); Va. Code Ann. § 2.2-3704(A) (2011) (“[A]l public records shall be open to inspection and copying by any citizens of the Commonwealth”). See also McBurney v. Young, 133 S. Ct. 1709, 1714 (2013) (identif ying the preceding eight stat es as those which restrict access under FOIA to their citizens). In a similar vein, respondents insinuate (but do not expre ssly contend) that because petitioners operate a “commercial bus iness” for which the requested information will presumably be used that “the reach of the FOIA statute” perhap s does not extend to them. We recognize that the “extent or valu e of the public interest, and the purpose or object of the individuals seeking di sclosure” has been identified in Cline , 177 W. Va. at 29, 350 S.E.2d 541, as a factor in determining whether public disclosure information of a personal nature would constitute an unreas onable invasion of priv acy. However, the threshold issue of whether th e information constitutes “infor mation of a personal nature” must first be determined before launching into an evaluation of the Cline factors, including the purpose of the reque ster, as discussed more fully infra

. Perhaps more importantly, our FOIA statut e contains absolutely no prohibition on requests which are for a primarily commercial purpose. In fact, this Court stated in Cline that the interest in the info rmation “may be pecuniary.” Cline , 177 W. Va. 33, 350 S.E.2d at 544. Cf. Muffoletto v. Sessions, 760 F. Supp. 268 (E.D.N .Y. 1991) (discussing gamut of motivating factors including privat e commercial interests for proper federal FOIA request as pertains to entitlement for attorney fees); see also Blue v. Bureau of Prisons , 570 F.2d 529, 533-34 (5 th Cir. 1978) (discussing, for purposes of entitlement to attorney fees, successful fede ral FOIA requests which “s ubsidize a matter of private concern” as well as those which “add to the fu nd of information that citizens may use in making vital political choices”); LaSalle Extension Univ. v. F. T. C., 627 F.2d 481, 484 (D. C. 1980) (recognizing propriety of federa l FOIA requests motivated by “private selfinterest . . . and . . . pecuni ary benefit” but not warranting attorney fee awards). While the purpose of a FOIA request may prove releva nt to the balancing test we established in Cline , or federally, for purposes of an award of attorney fees, there is simply no support in our statute or caselaw for the notion that commercial use of the information will defeat an otherwise proper FOIA request.12 1-4(a)(2) and -4(a)(5). Petitioners maintain th at the CAMA data is neither categorically exempted from disclosure by our tax assessment stat utes, nor does it constitute “personal” information exem pted by FOIA. We will revi ew each potential exemption separately to assess whether th e CAMA files are, as a whole, exempt from production as concluded by the circuit court. In so doin g, we are mindful that “[t]he 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 th e exemptions to such Act are to be strictly construed. W. Va. Code , 29B-1-1 [1977].” Syl. Pt. 4, Hechler v. Casey , 175 W. Va. 434, 333 S.E.2d 799 (1985).

As indicated above, West Virginia Code § 29B-1-4(a)(5) provides that “[i]nformation specifically exempted from disclo sure by statute” is likewise exempt from disclosure under FOIA. To that end, West Virginia Code § 11-1A-23 entitled “Confidentiality and disclosure of property tax returns and re turn information; offenses; penalties” provides in pertinent part: (a) Secrecy of returns and return information . -- Property tax returns and return in formation filed or supplied pursuant to this article and articles thre e [§§ 11-3-1 et seq.], four [§§ 11-4-1 et seq.], five [§§ 11-5-1 et seq.] an d six [§§ 11-6-1 et seq.] of this chapter and info rmation obtained by subpoena or subpoena duces tecum issued un der the provisions of this article shall be confidential and except as authorized in this section, no officer or employee of the State Tax Department, county assessors, county commissions and the Board of Public Works shall disclose any return or return information obtained by him or her, includi ng such return information obtained by subpoena, in any manner in connection with his or her service as such an officer, member or employee:13 Provided, That nothing herein sha ll make confidential the itemized description of the pr operty listed, in order to ascertain that all property s ubject to assessment has been subjected to appraisal : Provided, however, That the commissioner and the assessors shall withhold from public disclosure the specific description of burglar alarms and other similar security systems held by any person . . . . (emphasis added). Fairly read, this statut e provides that property tax “returns” and “information filed or supplied” 8 pursuant to the tax assessment process are confidential; however, an “itemized descriptio n of the property listed” is not. Petitioners take the position that the CAMA data is simply part of the “itemized description” of property appraised. Respondents take the position that the “itemized description” is limited to the assessment files or land book information.

We find that to determine whether the CAMA files constitute confidential “returns and return information” exemptfrom disclosure or are part of the nonconfidential “itemized description,” we must resort to our well-established canons of statutory construction. In that regard, we have recognized: Ambiguity is a term connoting doubtfulness, doubleness of meaning of indistinctness or un certainty of an expression used in a written instrument. It has been declared that courts may not find ambiguity in statutory language which laymen are readily able to co mprehend; nor is it permissible to create

8 All indications are that assessment inform ation is derived from three sources: 1) historical information; 2) tax return in formation submitted by the taxpayer; 3) site inspections by assessors which may or may not involve the cooperation and “supplying” of information by the taxpayer. The regulati ons on these on-site inspections direct the assessor to enter the home fo r inspection and questioning of the homeowner, if permitted; otherwise, they are directed to “es timate.” W. Va. C.S.R. § 189-2-1 et seq

.14 an obscurity or uncertainty in a statute by reading in an additional word or words. Dunlap v. Friedman’s, Inc ., 213 W.Va. 394, 397-98, 582 S.E.2d 841, 8 44-45 (2003) (quoting Crockett v. Andrews , 153 W.Va. 714, 718–19, 1 72 S.E.2d 384, 387 (1970)). Moreover, [a] finding of ambiguity must be made prior to any attempt to interpret a statute. As the Court stated in syllabus point one of Ohio County Comm’n v. Manchin , 171 W.Va. 552, 301 S.E.2d 183 (1983), “Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretativ e inquiry is to ascertain the legislative intent.” Dunlap, 213 W. Va. at 397, 582 S.E.2d at 845; see also McCoy v. Vankirk , 201 W.Va. 718, 725, 500 S.E.2d 534, 541 (1997) (“[W]hen a stat ute’s language is ambiguous, a court often must venture into extratextual te rritory in order to di still an appropriate construction.” (quoting State ex rel. McGraw v. Sco tt Runyan Pontiac–Buick, Inc ., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995 )). We find that the CAMA data is not expressly countenanced in the statute and the statute’s language is sufficiently ambiguous such as to require this Court to construe the statute.

West Virginia Code § 11-1A-2 3(a) is entitled “Secrecy of returns and return information .” (emphasis added). We observe in itially that the “return” itself at least as pertains to residential propertie s contains very little data—address/land book description, owner’s value, owner occupied /rental, residential/farm/commercial, and improvements/cost—as compared with the universe of poten tial information compiled in15 the CAMA data. The bulk of the CAMA data is clearly derived from in-person visits by deputy assessors and may or may not incl ude the following additi onal information: topography, utilities, stories, basement features, number of beds/baths, quality of construction (type of floors, kitchen, paneli ng, fireplaces), general condition (remodeling, cracked plaster, sagging floors), type of furnace/hot water heat er, extra plumbing, recreation rooms, measurements, sketches, rece nt sales, sales price, date built, rental information, presence of outbuild ings/pools, etc. In fact, We st Virginia Code of State Regulations § 189-2-1 et seq . sets forth an exhaustive set of statewide procedures for the collection of this data, largely through in-per son visitation by a data collector. W. Va. Code of State Regulations § 189-2-3 through -6.

Respondents’ position urges us to conclu de that the Legislature intended to make all of the data collected and/or utili zed by the assessor for property appraisal purposes confidential, with the exception of the scant descrip tion of real property in the land books. We believe that th e language of the statute belie s such a position. First, the statute very specifically refers to “returns an d return information.” We believe that the “return information” is that particular species of data provided by the taxpayers themselves directly to the a ssessor on the tax return docu ment. The CAMA data, on the other hand, consists largely of the very detailed information collected by data collectors through the exhaustive processes provided in West Virginia C.S.R. § 189-2-1 et seq.16 Secondly, and perhaps more tellingl y, the statute specifically makes confidential, among other things, 9 “the specific description of burglar alarms and other similar security systems held by any person[.]” W. Va. Code § 11-1A-23(a). If the entire universe of information collected by the asse ssor were intended by the Legislature to be confidential save the land book description, it would have been unnecessary for the Legislature to make such a specific additiona l exemption for burglar alarms and security systems as such information would fall with in the broad-sweeping confidentiality urged by respondents. “In parsing th e language of a statute for its meaning, we are mindful that ‘a cardinal rule of statutory construc tion is that significance and effect must, if possible, be given to every section, clau se, word or part of the statute.’” Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 214, 530 S.E. 2d 676, 687 (1999) (quoting State v. General Daniel Morgan Post No. 548, V.F.W ., 144 W. Va. 137, 1 47, 107 S.E.2d 353, 359 (1959)). As such, we conclude that the CAMA data is not categorically exempted from disclosure pursuant to West Virginia Code § 11-1A-23(a).

Nevertheless, we recognize—much as the circuit court did—that only “some” of the CAMA data is sp ecifically exempted informa tion by West Virginia Code § 11-1A-23(a) and § 29B-1-4. In that regard, we do not disturb the circuit court’s ruling regarding information specific ally identified as falling w ithin these plainly-worded

9 The statute also specifi cally makes “stocks, bonds and other personal property held by a natural person, except . . . tangible property utilized publicly . . . trade secret[s] or confidential patent information” exempt from public disclosure unless subject to review or protest in the appraisal or assessmen t process.” W. Va. Code § 11-1A-23(a).17 exemptions such as burglar alarms and security systems. However, as more fully discussed infra , the circuit court erred in ruling th at the CAMA data was subject to a wholesale exemption from disclosure because it includes some of these more narrowlydefined exemptions.

2. Information of a “Personal Nature” Although the circuit court concluded th at some unidentifie d portion of the CAMA data fell within the exemptions contained in West Virginia Code § 11-1A-23(a), it relied most heavily on the specific FOIA provision exempting “information of a personal nature” from disclosure. West Vi rginia Code § 29B-1-4(a) provides, in pertinent part: (a) The following categories of information are specifically exempt from disclosure under th e provisions of this article:
*** (2) Information of a personal nature such as that kept in a personal, 10 medical or similar file, if the public disclosure thereof would constitute an unre asonable invasion of privacy , unless the public interest by cl ear and convincing evidence requires disclosure in the partic ular instance: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his or her own personal, medical or similar file[.]

10 This Court has observed that in most stat e’s FOIA statutes, th is term is actually “personnel.” Manns v. City of Charleston Police Dept ., 209 W.Va. 620, 624, n.6, 550 S.E.2d 598, 602 n.6 (2001). In Manns, this differentiation was found to be immaterial since the files at issue included and/or were akin to personnel files.18 (footnote added). “Information of a personal na ture” is not statutorily defined; however, this Court has observed that “[t]he primary pur pose of the invasion of privacy exemption to the Freedom of Information Act, W. Va. Code , 29B-1-4[a](2) [1977], is to protect individuals from the injury and embarrassm ent that can result from the unnecessary disclosure of personal in formation.” Syl. Pt. 6, Hechler, 175 W.Va. 434, 333 S.E.2d 799.

The circuit court concluded that cert ain of the CAMA data—particularly the information regarding nurs ing home stays, disabilities, photographs and drawings of the inside and outside of homes and busin ess, construction mate rials, blueprints, profit/loss statements, and whether the ow ner is home during the day—constituted information of a personal nature. Accordingl y, the circuit court proceeded to evaluate whether disclosure of such information would constitute an unreasonable invasion of privacy pursuant to Cline , 177 W. Va. 29, 350 S.E. 2d 541, as follows: 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 indivi duals seeking disclosure. 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.19 Syl. Pt. 2, id. Generally, “[u]nder W. Va. Code 29B-1-4[a](2) [1977], a court must balance or weigh the individual’s right of pr ivacy against the public's right to know.” Syl. Pt. 7, Hechler , 175 W.Va. 434, 333 S.E. 2d 799. The circuit court found that the Cline balancing test compelled the conclusion that the CAMA data is entirely exempt from disclosure under West Virg inia Code § 29B-1-4(a)(2). 11

Petitioners argue that real estate info rmation is not “personal” information in the first instance; rather, it is information regarding real property itself. Therefore, petitioners argue that an evaluation of the Cline factors below is not even reached. Moreover, petitioners cite a handful of case s and attorney genera l opinions from other jurisdictions concluding that property “des criptions” are not private. Respondents counter that citizens have an expectation of pr ivacy in the interior and curtilage of their homes and that much of the CAMA data is derived from th ose closely-held areas. Respondents argue that in the extra-jurisdictional cases and opinions cited by petitioners, the information sought therein is more akin to th e assessment files, rather than the CAMA data. Critically, however, the Tax Commissioner conceded during oral argument that it does not contend that the entirety of the CAMA data is ex empt from disclosure

11 More specifically with respect to the Cline factors, the circuit court found that disclosing information about a home’s interior could pose a danger to families, that petitioners are not West Virginia citizens and therefore have no legitimate “need to know,” that the land book/assessment information would give them adequate information, that taxpayers e xpect the information to be us ed solely by the government, and that this personal information is scatte red throughout the fields of data making it nearly impossible to redact.20 pursuant to this provision, but rather that the exempt informa tion is inextricably commingled within the various fields of the CAMA data. Moreover, petitioners repeatedly maintained that th ey were not seeking many of the categories of information respondents contended was confidential. 12

We find that the CAMA data, as a whole, does not constitute per se “personal information.” However, we recogn ize that it may, and likely does, contain some information which could be characteri zed as such and therefore subject to the Cline balancing test. While the full nature and ex tent of the categories of information sought by petitioners’ request has not been fully developed, 13 we find that those categories which have been identified concerning the constr uction and general characteristics of the property do not fairly constitute “personal” in formation. Rather, much of the information is that which could be read ily observed by the general pu blic. Other, less “public” characteristics of the property, i.e. inte rior aspects of the home, could be easily ascertained from an MLS real property listing or other public dissemination of the home’s features, which is comm on today. This Court has st ated, with respect to the parallel federal FOIA exempti on for personal information:

12 Specifically, petitioners assert that th ey do not want the following items or categories of information to which respondents have object ed: photographs/sketches of buildings, vacancy information, burglar alarms/security sy stems, profit/loss statements, photographs/blueprints of commercial proper ties, blueprints/trade secrets of chemical plants, industrial property data, nurs ing home stays, and disabilities.

13 The fields of data requested by petiti oners are designated by abbreviations and coded; therefore, much of it is indecipherable.21 The primary purpose of exempt ion 6 to the Federal FOIA “was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal inform ation.” The primary purpose of W. Va. Code , 29B–1–4[a](2) [1977 ] is the same. The threshold inquiry as to the type of information initially subject to this exemption turns not upon the label of the file containing the information nor upon the “intimate” or “highly personal” nature of the inform ation. “Rather, ‘[t]he exemption [was] intended to cover detaile d Government records on an individual which can be identified as applying to that individual.’” Hechler , 175 W. Va. at 444, 333 S.E.2d at 809 (quoting United States Dep’t of State v. Washington Post Co. , 456 U.S. 595 (1982) (citations omitted)). The respondents have identified no “injury” or “embarrassment” th at is occasioned by the disclosure of information about the number of bedrooms or construction materials of an individual’s home. To the contrary, it seems plain that th is type of information could prove valuable to taxpayers to ensure fair and equal assessment of like properties.

We conclude, therefore, that the CA MA data is not categorically exempted from disclosure under FOIA’s exemption for information of a personal nature and that the circuit court erred in so concluding.

C. Vaughn Index and Redac tion of Exempt Information We find, however, that the foregoing di scussion is mere prologue to the most problematic error committed below. As indicated, based upon a few generally referenced categories of “personal” informa tion presumably contained within the CAMA files and the inclusion of “return” informat ion and burglar alarms/s ecurity systems, the22 lower court ruled that no disc losure whatsoever of the CAMA files was required. Accordingly, both re spondents and the circuit court disregarded the following wellestablished holding: In response to a proper Freedom of Information Act request, a public body has a duty to redact or segregate exempt from non-exempt information containe d within the public record(s) responsive to the FOIA request and to disclose the nonexempt information unless such segr egation or redaction would impose upon the public body an unreasonably high burden or expense. If the public body refu ses to provide redacted or segregated copies because th e process of redacting or segregating would impose an unreasonably high burden or expense, the public body must provide the requesting party a written response that is sufficien tly detailed to justify refusal to honor the FOIA request on these grounds. Such written response, however, need not be so detailed that the justification would compromise the secret nature of the exempt information. Syl. Pt. 5, Farley , 215 W.Va. 412, 599 S.E.2d 835. Moreover, in aid of the lower court’s obligation to independently a ssess the FOIA exemptions clai med by the public body, we have more specifically held: When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions co ntained in W. Va. Code, 29B1-4 (2002 Repl. Vol.) (2003 Supp.), the pub lic body must produce a Vaughn index named for Vaughn v. Rosen , 484 F.2d 820 (D.C.Cir.1973), cert. denied , 415 U.S. 977, 94 S. Ct. 1564, 39 L.Ed.2d 873 (1974). The Vaughn index must provide a relatively detailed ju stification as to why each document is exempt, specificall y identifying the reason(s) why an exemption under W. Va . Code, 29B-1-4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. . . .23 Syl. Pt. 6, in part, Farley, 215 W. Va. 412, 599 S.E.2d 835

. As previously noted, neither the Tax Commissioner nor Kanawha County Asse ssor offered a redacted version of the CAMA files. Rather, the Tax Commissioner ma de vague reference to the complexity of redacting this information and indicated it w ould likely require out-s ourcing the redaction to a third-party vendor to ensure the file s were not corrupted. Although a purported hourly rate for redaction was offered, no total cost for this out-so urcing was provided. Obviously, the ultimate necessi ty and cost of this action was not justified since the amount and type of information that would n eed redacted was never fully formed, due to the absence of more specific development of the fields of data which were purportedly subject to exemption. “[A] public body cannot simply state in a conclusory or cursory manner that redaction would be unrea sonably burdensome or costly.” Id. at 423, 599 S.E.2d at 846. The absence of more spec ific information on the cost to redact information from the CAMA files was occasioned entirely by the failure of the Tax Commissioner and Kanawha County Assessor to produce a Vaughn index. 14 We are hard-pressed to conjure a sc enario that better illustrates the efficaciousness of a Vaughn index than the instant matter.

14 The Tax Commissioner argues that the basis of their refusal to disclose is evident from the pleadings, obviating the need for a Vaughn index. The Kanawha County Assessor argues that no FOIA request was made to it; therefore, it need not produce a Vaughn index. Neither of these arguments has merit. If a mere blanket objection under FOIA were sufficient, there would never be a need for a Vaughn index; this case is particularly suscep tible to such an index as the information is contained in a number of discrete categories, all of which have been id entified by petitioners. The Kanawha County Assessor’s position is partic ularly disingenuous since 1) it actively intervened in th e case for the purpose of advancing FOIA exemptions; and 2) adamantly maintains that it is the proper custodian of the records, rath er than the Tax Commissioner.24 This Court has recognized “that agencies have ‘a re sponsibility to disclose as much information to the public as [they] can.’” Farley , 215 W. Va. at 420, 599 S.E.2d at 843 (quoting AT&T Comm’n v. Pub. Serv. Comm’n , 188 W. Va. 250, 253, 423 S.E.2d 859, 862 (1992)). More to the poi nt, this Court has noted that a FOIA request seeking record s containing both exempt and non-exempt information without the request specifying that redacted records will be accep table must be treated as a request for the production of any non-exempt information contained in a public record otherwise reasonably falling within the request. In other wo rds, “an entire document is not exempt merely because an is olated portion need not be disclosed. Thus the agency may not sweep a document under a general allegation of exempt ion, even if that general allegation is correct with regard to part of the information.” Id . at 421, 599 S.E.2d at 844 (quoting Vaughn , 484 F.2d at 825). Not only did the Tax Commissioner sweep an entire da tabase of information unde r a general allegation of exemption, but the circuit court su ccumbed to the same error. Had a Vaughn index been prepared and submitted, the parties may well ha ve been able to come to some sort of agreement as to the information to be disclosed. If not, the circuit court would have been in a position to evaluate the claims of exemp tion as pertains to the specific information contained in each field of data. 15

15 The circuit court is certainly required to evaluate claims of undue burden or expense in ordering redaction of exempt ca tegories of information, in accordance with Syllabus Point 5 of Farley . Obviously, however, such bu rden or expense cannot be established with the detail required by Farley until the particular fields of data upon which exemption will be claimed are identif ied and the exemptions evaluated by the circuit court. We find the Commissioner’s vague claims of commingling, as they (continued . . .)25 “[U]nless the segregability provision of the FOIA is to be nothing more than a precatory precept, agencies must be re quired to provide the reasons behind their conclusions in order that they may be challe nged by FOIA plaintiffs and reviewed by the
courts.” Mead Data Cent., Inc. v. U. S. Dep’t of Air Force , 566 F.2d 242, 261 (D. C. Cir. 1977). Accordingly a determination as to wh ether certain particular fields of data constitute “personal informa tion” potentially exempt from disclosure is premature inasmuch as the specific bases for exemption for each specif ic field were not developed below. On remand, the circuit court is directed to require submission of a Vaughn index containing the specific exempti ons claimed by respondents as to the specific fields of data in the CAMA files, whereupon th e circuit court is to evaluate the specific categories of information sought in accord ance with the exemptions de lineated in West Virginia Code § 11-1A-23(a) and West Virginia Code § 29B-1-4 and as furt her consistent with this opinion. presently exist in the record below, particularly unavai ling where 1) the information is electronically stored and susceptible to so rting and searching; and 2) the categories themselves should reveal whethe r personal information is likel y to be contained therein. This is not a case involving a morass of docum ents each and every line of which must be reviewed and dissected. The feasibility of selecting and so rting data for production is perhaps best demonstrated by respondent Kanawha County Assessor’s own submission of in camera documents containing separately itemized compilations of information regarding nursing home stays, s ecurity systems, disabled pers ons, and vacant properties. Moreover, respondents’ contention that th e rate of $203/hour for outsourcing the redaction project is burdensome and unreason able is premature without a more specific determination as to how much of the information must be redacted, if any. More importantly, however, FOIA expressly provide s that “[t]he 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); see also King v. Nease , No. 13-0603 (W. Va. April 10, 2014).26 IV. CONCLUSION Based upon the foregoing, we therefore reverse the January 14, 2013, order of the Circuit Court of Kanawha Co unty, and remand for submission of a Vaughn index and further findings by the circuit c ourt consistent with this opinion.

Reversed and remanded with directions.