IN THE SUPREME COURT OF APPEALS 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 REMANDED 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 VIRGINIA
Karen 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 the 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 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). 

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, 333 S.E.2d 799 (1985). 

4. “The primary purpose 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 embarrassment that can 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) (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. 

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, 333 S.E.2d 799 (1985). 

7. “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 

contained within the public record(s) responsive to the FOIA request and to disclose the 

nonexempt information unless such segregation 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 high burden or expense, the public body must provide the 

requesting party a written response that is sufficiently detailed to justify refusal to honor 
iii 

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 v. Worley, 215 W.Va. 412, 599 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 Repl. 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 873 (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 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. . . .” 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 judgment to respondent/defendant Mark 

Matkovich, Acting Tax Commissioner, West Virginia State Tax Department (“Tax 

Commissioner”) and respondent/intervenor Sallie Robinson, Kanawha County Assessor 

(“Kanawha County Assessor”) (hereinafter collectively “respondents”), in this 

declaratory judgment action brought pursuant 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 property 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 files are categorically exempt from production pursuant to a 

FOIA request and remand for submission of a Vaughn1

 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 resident of California, is the sole proprietor of 

petitioner Sage Information Services. Petitioners assert that their business involves “the 

prevention and apprehension of mortgage fraud through the automated verification of 

appraisal data.” On May 16, 2011, petitioners made a written request to the Tax 

Commissioner for “a copy, on CD or similar electronic media, 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 from the CAMA files they were requesting. 

The parties are largely agreed as to the following encapsulation of the tax 

appraisal process, an understanding of which is necessary to differentiate the various 

characterizations and labels of the two types of information at issue herein—the 

assessment files and the CAMA files. The county 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 assessors 

and 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 Assessment 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; however, only the county assessors can input or change the data 

therein. 

As part of the real property assessment process, the county assessor is 

charged with “mak[ing] out the land books” 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 publicly 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/photos of the property, floor plans, number of 

bathrooms/bedrooms, type of construction material, type of heating, topography, etc. In 

addition, the CAMA files may contain information which respondents have characterized 

as sensitive and personal information such as whether the residence has a security system, 

whether the resident is home 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 properties, the CAMA files contain information regarding 

profits/losses, blueprints, photographs, business income, and other information that could 

ostensibly provide a competitive advantage. The CAMA files for industrial properties 
4 

contain similar information but also include the names of buildings and types of 

storage/operation in each, which respondents allege present 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 categories 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 assessor 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 provisions of West Virginia Code § 

11-1A-23 (2013 Repl. Vol.) do not protect appraisal records 

from disclosure, unless the records contain taxpayer return 

information that is specifically protected from disclosure 

statute [sic]. . . . . Many county assessors freely disclose most 

appraisal data or ask that the 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 produced 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 disclosures. One of the vendors to whom Kanawha 

County in particular produced its CAMA files—Spec-Print—makes various West 

Virginia counties’ CAMA data available online. The Kanawha County Assessor claims, 

however, that it has not released any CAMA files since 2008 and certainly has not 

disclosed the 2011-2012 tax year information requested by petitioners. In addition, 

many counties make at least some of their CAMA data available online. 
5 

Petitioners requested that the Tax Commissioner 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 custodian of the CAMA files. 

As a result, petitioners filed the instant action seeking declaratory judgment 

and injunctive relief; the Kanawha County Assessor was thereafter granted permission to 

intervene. The parties exchanged written 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 any factual issues could be expedited and 

developed through evidentiary testimony rather than discovery depositions. The parties 

ostensibly agreed; therefore, no depositions were conducted. Nor were witnesses called 

during the hearing on the motions for summary judgment. Respondents filed multiple 

affidavits in support of their position; petitioners submitted none. No party requested 

additional discovery pursuant to West Virginia Rule of Civil Procedure 56(f). 

The circuit court granted summary judgment 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 security system information specifically exempted 

by West Virginia Code § 11-1A-23(a) (2007) and “trade secrets” exempted by West 
6 

Virginia Code § 29B-1-4(a)(1) (2007); 2) the CAMA files contained “information of a 

personal nature,” the disclosure of which constituted an unreasonable invasion of privacy 

pursuant to the five-factor test 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 foregoing, the issue of whether the 

Tax Commissioner was the “custodian” of the CAMA files was moot. This appeal 

followed. 

II. STANDARD OF REVIEW 

It is well-established that “[t]his 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). Moreover, “[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). We note further, however, that with regard to FOIA, “summary judgment is 

viewed through the evidentiary burden placed 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 their position that the circuit court erred in 

finding that the CAMA files are 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 records, 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 Files5

West Virginia’s FOIA, codified in West Virginia Code § 29B-1-1 et seq. 

(2007), provides that “[t]he custodian of any public records, unless otherwise expressly 

provided by statute, shall furnish proper and reasonable opportunities for inspection and 

examination of the records in his or her office . . . .” W. Va. Code § 29B-1-3(3). 

“Custodian” is defined as “the elected or appointed 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 addressed 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 disclosure 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 staunchly 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 alter the data, respondents contend that it is not the 

“custodian.” 

This issue is easily resolved by application of both the plain language of 

our FOIA statute and prior holdings illustrating the import of that language. In Syllabus 

Point 2 of Shepherdstown Observer, 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 contained in the computer system maintained 

and administered by the Tax Commissioner; there 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, previously 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 reappraisals of property mandated by the West 
9 

Virginia Constitution and required 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’ hair-splitting about the 

vagaries of the administration of the IAS system 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 countenances 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 543 (1999) (holding that “lack of possession” 

not determinative where the writing is “subject 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 the 
10 

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 record of a public body in this State, except as otherwise 

expressly provided by section 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 association.” W. Va. Code § 29B-1-2(2).7

 However, as 

 6

 In reaching this conclusion, however, we do not preclude the potential for the 

various county assessors to likewise be considered “custodians” of this data to the extent 

that they satisfy the statutory criteria. 

7

 Respondent Tax Commissioner contends in his brief that “because the Petitioners 

are not taxpayers, or residents of this State, the protections afforded by FOIA . . . do not 

extend to them.” This is patently 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 restrict FOIA requests in such a manner. Compare Ala. 

Code § 36-12-40 (2012 Cum. Supp.) (“Every citizen has 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 Arkansas during the 

regular business hours of the custodian of the records.”); Del. Code Ann. tit. 29, § 10003 

(2012 Supp.) (“Reasonable access 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 records kept pursuant to statute or ordinance shall at all 

reasonable times be open for a personal inspection by any citizen of Missouri[.]”); N. H. 

Rev. Stat. Ann. § 91-A:4 (West 2012) (“Every citizen . . . has the right to inspect all 

governmental records in the possession, custody, or control of such 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 disclosure by statute.” W. Va. Code §§ 29B-

 

agencies[.]”); N. J. Stat. Ann. § 47:1A-1 (West 2003) (“[G]overnment records shall be 

readily accessible for inspection, copying, or examination by the citizens of this 

State[.]”); Tenn. Code Ann. § 10-7-503(a)(2)(A) (2012) (“All state, county and municipal 

records shall . . . be open for personal inspection by any citizen 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) (identifying the preceding eight states as those which restrict 

access under FOIA to their citizens). 

In a similar vein, respondents insinuate (but do not expressly contend) that 

because petitioners operate a “commercial business” for which the requested information 

will presumably be used that “the reach of the FOIA statute” perhaps does not extend to 

them. We recognize that the “extent or value of the public interest, and the purpose or 

object of the individuals seeking disclosure” 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 unreasonable invasion of privacy. However, the 

threshold issue of whether the information constitutes “information of a personal nature” 

must first be determined before launching into an evaluation of the Cline factors, 

including the purpose of the requester, as discussed more fully infra. 

Perhaps more importantly, our FOIA statute 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 information “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 private 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 (5th Cir. 1978) (discussing, for purposes of entitlement to 

attorney fees, successful federal FOIA requests which “subsidize a matter of private 

concern” as well as those which “add to the fund 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 federal FOIA requests motivated by “private selfinterest . . . and . . . pecuniary benefit” but not warranting attorney fee awards). While 

the purpose of a FOIA request may prove relevant 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 that the CAMA data is neither categorically 

exempted from disclosure by our tax assessment statutes, nor does it constitute 

“personal” information exempted by FOIA. We will review each potential exemption 

separately to assess whether the CAMA files are, as a whole, exempt from production as 

concluded by the circuit court. In so doing, 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 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, 

333 S.E.2d 799 (1985). 

As indicated above, West Virginia Code § 29B-1-4(a)(5) provides that 

“[i]nformation specifically exempted from disclosure 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 return information; offenses; 

penalties” provides in pertinent part: 

(a) Secrecy of returns and return information. -- Property 

tax returns and return information filed or supplied pursuant 

to this article and articles three [§§ 11-3-1 et seq.], four [§§ 

11-4-1 et seq.], five [§§ 11-5-1 et seq.] and six [§§ 11-6-1 et 

seq.] of this chapter and information obtained by subpoena or 

subpoena duces tecum issued under 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, including 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 shall make confidential the 

itemized description of the property listed, in order to 

ascertain that all property subject 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 statute provides that property tax “returns” and 

“information filed or supplied”8

 pursuant to the tax assessment process are confidential; 

however, an “itemized description 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” exempt from 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 uncertainty 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 comprehend; nor is it permissible to create 

 8

 All indications are that assessment information is derived from three sources: 1) 

historical information; 2) tax return information 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 regulations on these on-site inspections direct the 

assessor to enter the home for inspection and questioning of the homeowner, if permitted; 

otherwise, they are directed to “estimate.” 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, 844-45 (2003) 

(quoting Crockett v. Andrews, 153 W.Va. 714, 718–19, 172 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 interpretative 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 statute’s language is ambiguous, a 

court often must venture into extratextual territory in order to distill an appropriate 

construction.” (quoting State ex rel. McGraw v. Scott 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-23(a) is entitled “Secrecy of returns and 

return information.” (emphasis added). We observe initially that the “return” itself at 

least as pertains to residential properties 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 potential information compiled in 
15 

the CAMA data. The bulk of the CAMA data is clearly derived from in-person visits by 

deputy assessors and may or may not include the following additional information: 

topography, utilities, stories, basement features, number of beds/baths, quality of 

construction (type of floors, kitchen, paneling, fireplaces), general condition (remodeling, 

cracked plaster, sagging floors), type of furnace/hot water heater, extra plumbing, 

recreation rooms, measurements, sketches, recent sales, sales price, date built, rental 

information, presence of outbuildings/pools, etc. In fact, West 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-person visitation by a data collector. W. Va. 

Code of State Regulations § 189-2-3 through -6. 

Respondents’ position urges us to conclude that the Legislature intended to 

make all of the data collected and/or utilized by the assessor for property appraisal 

purposes confidential, with the exception of the scant description of real property in the 

land books. We believe that the language of the statute belies such a position. First, the 

statute very specifically refers to “returns and return information.” We believe that the 

“return information” is that particular species of data provided by the taxpayers 

themselves directly to the assessor on the tax return document. 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 tellingly, 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 assessor 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 additional exemption for burglar alarms and security 

systems as such information would fall within the broad-sweeping confidentiality urged 

by respondents. “In parsing the language of a statute for its meaning, we are mindful 

that ‘a cardinal rule of statutory construction is that significance and effect must, if 

possible, be given to every section, clause, 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, 147, 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 specifically exempted information 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 specifically identified as falling within these plainly-worded 

 9

 The statute also specifically 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 assessment 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 that 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 that some unidentified 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 Virginia Code § 29B-1-4(a) provides, in 

pertinent part: 

(a) The following categories of information are specifically 

exempt from disclosure under the 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 unreasonable invasion of privacy, 

unless the public interest by clear and convincing evidence 

requires disclosure in the particular 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 state’s FOIA statutes, this 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 nature” is not statutorily defined; however, 

this Court has observed that “[t]he primary purpose 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 embarrassment that can result from the unnecessary 

disclosure of personal information.” Syl. Pt. 6, Hechler, 175 W.Va. 434, 333 S.E.2d 799. 

The circuit court concluded that certain of the CAMA data—particularly 

the information regarding nursing home stays, disabilities, photographs and drawings of 

the inside and outside of homes and business, construction materials, blueprints, 

profit/loss statements, and whether the owner is home during the day—constituted 

information of a personal nature. Accordingly, 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 individuals 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 privacy 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 Virginia Code § 29B-1-4(a)(2).11

Petitioners argue that real estate information 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 cases and attorney general opinions from other 

jurisdictions concluding that property “descriptions” are not private. Respondents 

counter that citizens have an expectation of privacy in the interior and curtilage of their 

homes and that much of the CAMA data is derived from those closely-held areas. 

Respondents argue that in the extra-jurisdictional cases and opinions cited by petitioners, 

the information sought therein is more akin to the 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 exempt 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 expect the information to be used solely by the government, 

and that this personal information is scattered throughout the fields of data making it 

nearly impossible to redact. 
20 

pursuant to this provision, but rather that the exempt information is inextricably 

commingled within the various fields of the CAMA data. Moreover, petitioners 

repeatedly maintained that they 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 recognize that it may, and likely does, contain 

some information which could be characterized as such and therefore subject to the Cline

balancing test. While the full nature and extent 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 construction and general characteristics of the 

property do not fairly constitute “personal” information. Rather, much of the information 

is that which could be readily observed by the general public. Other, less “public” 

characteristics of the property, i.e. interior 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 common today. This Court has stated, with respect to the 

parallel federal FOIA exemption for personal information: 

 12 Specifically, petitioners assert that they do not want the following items or 

categories of information to which respondents have objected: photographs/sketches of 

buildings, vacancy information, burglar alarms/security systems, profit/loss statements, 

photographs/blueprints of commercial properties, blueprints/trade secrets of chemical 

plants, industrial property data, nursing home stays, and disabilities. 

13 The fields of data requested by petitioners are designated by abbreviations and 

coded; therefore, much of it is indecipherable. 
21 

The primary purpose of exemption 6 to the Federal FOIA 

“was to protect individuals from the injury and 

embarrassment that can result from the unnecessary 

disclosure of personal information.” 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 information. “Rather, ‘[t]he exemption 

[was] intended to cover detailed 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” that 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 this type of information could prove valuable 

to taxpayers to ensure fair and equal assessment of like properties. 

 We conclude, therefore, that the CAMA 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 Redaction of Exempt Information

We find, however, that the foregoing discussion is mere prologue to the 

most problematic error committed below. As indicated, based upon a few generally 

referenced categories of “personal” information presumably contained within the CAMA 

files and the inclusion of “return” information and burglar alarms/security systems, the 
22 

lower court ruled that no disclosure whatsoever of the CAMA files was required. 

Accordingly, both respondents 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 contained within the public record(s) 

responsive to the FOIA request and to disclose the nonexempt 

information unless such segregation 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 high burden or 

expense, the public body must provide the requesting party a 

written response that is sufficiently 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 assess the FOIA exemptions claimed 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 contained in W. Va. Code, 29B1-4 (2002 Repl. 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 873 (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 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 Assessor offered a redacted version of the 

CAMA files. Rather, the Tax Commissioner made vague reference to the complexity of 

redacting this information and indicated it would likely require out-sourcing the redaction 

to a third-party vendor to ensure the files were not corrupted. Although a purported 

hourly rate for redaction was offered, no total cost for this out-sourcing was provided. 

Obviously, the ultimate necessity and cost of this action was not justified since the 

amount and type of information that would need 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 unreasonably burdensome or costly.” Id. at 423, 599 

S.E.2d at 846. The absence of more specific 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 scenario 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 susceptible to such an index as the information is contained in a 

number of discrete categories, all of which have been identified by petitioners. The 

Kanawha County Assessor’s position is particularly disingenuous since 1) it actively 

intervened in the case for the purpose of advancing FOIA exemptions; and 2) adamantly 

maintains that it is the proper custodian of the records, rather than the Tax Commissioner. 
24 

This Court has recognized “that agencies have ‘a responsibility 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 point, this Court has noted that 

a FOIA request seeking records containing both exempt and 

non-exempt information without the request specifying that 

redacted records will be acceptable 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 words, “an entire document is not 

exempt merely because an isolated portion need not be 

disclosed. Thus the agency may not sweep a document under 

a general allegation of exemption, 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 database of information under a general allegation of 

exemption, but the circuit court succumbed to the same error. Had a Vaughn index been 

prepared and submitted, the parties may well have 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 exemption 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 categories of information, in accordance with 

Syllabus Point 5 of Farley. Obviously, however, such burden or expense cannot be 

established with the detail required by Farley until the particular fields of data upon 

which exemption will be claimed are identified 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 required to provide the reasons behind their 

conclusions in order that they may be challenged 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 whether certain particular fields of data 

constitute “personal information” potentially exempt from disclosure is premature 

inasmuch as the specific bases for exemption for each specific field were not developed 

below. On remand, the circuit court is directed to require submission of a Vaughn index 

containing the specific exemptions claimed by respondents as to the specific fields of 

data in the CAMA files, whereupon the circuit court is to evaluate the specific categories 

of information sought in accordance with the exemptions delineated in West Virginia 

Code § 11-1A-23(a) and West Virginia Code § 29B-1-4 and as further consistent with 

this opinion. 

 

presently exist in the record below, particularly unavailing where 1) the information is 

electronically stored and susceptible to sorting and searching; and 2) the categories 

themselves should reveal whether personal information is likely to be contained therein. 

This is not a case involving a morass of documents each and every line of which must be 

reviewed and dissected. The feasibility of selecting and sorting 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, security systems, disabled persons, and vacant properties. 

Moreover, respondents’ contention that the rate of $203/hour for outsourcing the 

redaction project is burdensome and unreasonable is premature without a more specific 

determination as to how much of the information must be redacted, if any. More 

importantly, however, FOIA expressly provides 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 County, and remand for submission of a Vaughn index 

and further findings by the circuit court consistent with this opinion. 

 Reversed and remanded with directions.