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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2017 Term 

_____________ FILED 

April 26, 2017 No. 15-1174 released at 3:00 p.m. 

RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

WEST VIRGINIA REGIONAL JAIL AND
 

CORRECTIONAL FACILITY AUTHORITY,
 

Petitioner
 

V. 

SHANE R. MARCUM, 

Respondent 

Appeal from the Circuit Court of Kanawha County
 

Honorable Joanna I. Tabit, Judge
 

Civil Action No. 15-C-1668
 

REVERSED
 

Submitted: April 4, 2017 

Filed: April 26, 2017 

Patrick Morrisey Paul M. Stroebel 

Attorney General Stroebel & Johnson, PLLC 

Benjamin Freeman Charleston, West Virginia 

Assistant Attorney General Attorney for Respondent 

Charleston, West Virginia 

Attorneys for Petitioner 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leah Perry Macia 

West Virginia Regional 

Jail Authority, Petitioner 

Vincent Trivelli 

Morgantown, West Virginia 

Attorney for Amicus Curiae 

Communications Workers of America, 

AFL-CIO 

Patrick Morrisey 

Attorney General 

John H. Boothroyd 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for Amicus Curiae 

West Virginia Division of Corrections 

David Allen Barnette 

Vivian H. Basdekis 

Jackson Kelly, PLLC 

Charleston, West Virginia 

Attorneys for Amicus Curiae 

West Virginia Broadcasters’ 

Association 

JUSTICE DAVIS delivered the Opinion of the Court. 

JUSTICE WORKMAN concurs in part, and dissents in part, and reserves the right to 

file a separate opinion. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Where the issue on an appeal from the circuit court is clearlya question 

of law or involving an interpretation of a statute, we apply a de novo standard of review.” 

Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). 

2. “The disclosure provisions of this State’s Freedom of Information Act, 

W. Va. Code, 29B-1-1 et seq., as amended, are to be liberally construed, and the exemptions 

to such Act are to be strictly construed. W. Va. Code, 29B-1-1 [1977].” Syllabus point 4, 

Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). 

3. “The partyclaiming exemption from the general disclosure requirement 

under West Virginia Code § 29B-1-4 has the burden of showing the express applicability of 

such exemption to the material requested.” Syllabus point 7, Queen v. West Virginia 

University Hospitals, Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987). 

4. Pursuant to W. Va. Code § 29B-1-4(a)(19) (2016) (Supp. 2016) 

disclosure of a videotape of the cell extraction of an inmate is prohibited, because it displays 

part of the design of a correctional facility and the operational procedures of personnel 

relating to the management of inmates, such that, if disclosed, could be used by an inmate 

to escape from a facility or to cause injury to another inmate, resident or to facility personnel. 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Davis, Justice: 

The Petitioner in this matter, the West Virginia Regional Jail and Correctional 

Facility Authority (“the Regional Jail”) brought this appeal from an order of the Circuit Court 

of Kanawha County. The circuit court’s order required the Regional Jail turn over a 

videotape to the Respondent, Shane Marcum, pursuant to his request under the West Virginia 

Freedom of Information Act (“FOIA”).1 In this appeal, the Regional Jail contends that the 

videotape is exempt from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2) 

and (19) (2016) (Supp. 2016). After a careful review of the briefs and the appendix record, 

and listening to the argument of the parties, we reverse.2 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

The relevant facts in this proceeding are not in dispute. On February 27, 2015, 

Mr. Marcum was being held on felony charges in the Western Regional Jail in Cabell 

County, West Virginia. For reasons that have not been made clear by the parties, it was 

determined by authorities at the facility that Mr. Marcum had to be physically removed from 

his cell. At least four correctional officers were initially involved in what is called a “cell 

1

See W.Va. Code § 29B-1-1 et seq. 

2

This Court is grateful for the amicus curiae briefs filed by the West Virginia 

Broadcasters’ Association; Communications Workers of America, AFL-CIO; and West 

Virginia Division of Corrections. We value the participation of the amici and have 

considered their briefs in conjunction with the briefs of the parties. 

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extraction.”3 To carry out the cell extraction, the officers tossed two flash bang grenades into 

the cell.4 After tossing the grenades into the cell, the officers removed Mr. Marcum from his 

cell. The cell extraction and events immediately following were recorded on videotape by 

the Regional Jail. 

As a result of alleged injuries he received during the cell extraction, Mr. 

Marcum filed a civil action against the Regional Jail in circuit court. That proceeding was 

subsequently removed to federal court, where it is now pending. During the proceeding in 

federal court, Mr. Marcum requested a copyof the videotape that recorded his cell extraction. 

The Regional Jail agreed to provide a copy of the videotape “subject to a protective order.” 

Mr. Marcum refused to accept the videotape under protective order conditions. Instead, Mr. 

Marcum requested the videotape pursuant to FOIA. By letter dated July 24, 2015, the 

Regional Jail refused to turn over the videotape under FOIA on the grounds that it was 

3

“A cell extraction is forcible removal of an inmate from a cell, utilized when 

an inmate has either refused to comply with stated orders, or is engaged in harmful behavior 

towards himself or other inmates.” Nina Frank, Such Visible Fiction: The Expansion of Scott 

v. Harris to Prisoner Eighth Amendment Excessive Force Claims, 32 Cardozo L. Rev. 1481, 

1514 (2011). 

4

See Boyd v. Benton County, 374 F.3d 773, 776 (9th Cir. 2004) (“The 

flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and 

loud noise upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets, 

creating a window of time in which police officers can safely enter and secure a potentially 

dangerous area.”); Terebesi v. Torreso, 764 F.3d 217, 225 n.4 (2d Cir. 2014) (“The 

grenades . . . go by a variety of names, including ‘flash grenade,’ ‘stun grenade,’ ‘concussion 

grenade,’ ‘distraction device,’ and the colloquial ‘flashbang.’”). 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

exempt under W. Va. Code §§ 29B-1-4(a)(2) and (19). 

In September 2015, Mr. Marcum filed a complaint for preliminary injunction 

and declaratory relief against the Regional Jail in circuit court. The complaint sought a court 

order requiring the Regional Jail turn over the cell extraction videotape under FOIA. 

Subsequent to a hearing on the matter, the circuit court entered an order on November 4, 

2015, requiring the Regional Jail to produce the videotape to Mr. Marcum. This appeal of 

that order followed. 

II.
 

STANDARD OF REVIEW
 

In this proceeding, we are called upon to review a circuit court order that 

determined FOIA did not exempt disclosure of a cell extraction videotape. This issue 

presents a de novo review standard “because [it] requires an interpretation of West Virginia’s 

FOIA[.]” Charleston Gazette v. Smithers, 232 W. Va. 449, 460, 752 S.E.2d 603, 614 (2013). 

We have long recognized that “[w]here the issue on an appeal from the circuit court is clearly 

a question of law or involving an interpretation of a statute, we apply a de novo standard of 

review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III.
 

DISCUSSION
 

The Regional Jail contends that its videotape of the cell extraction of Mr. 

Marcum is exempted from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2) 

and (19). Mr. Marcum argues that there is no language in either of the statutory provisions 

that exempt release of the videotape. 

We begin by observing the framework for our statutory analysis. This Court 

has long held that “‘[w]here the language of a statute is clear and without ambiguity the plain 

meaning is to be accepted without resorting to the rules of interpretation.’” Huffman v. Goals 

Coal Co., 223 W. Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. 

Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968)). On the other hand, “[a] statute that is 

ambiguous must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 

W. Va. 693, 414 S.E.2d 454 (1992). Further, as a general matter, “the words of a statute are 

to be given their ordinary and familiar significance and meaning[.]” Amick v. C & T Dev. 

Co., Inc., 187 W. Va. 115, 118, 416 S.E.2d 73, 76 (1992). “It is not for this Court arbitrarily 

to read into [a statute] that which it does not say. Just as courts are not to eliminate through 

judicial interpretation words that were purposely included, we are obliged not to add to 

statutes something the Legislature purposely omitted.” Banker v. Banker, 196 W. Va. 535, 

546-47, 474 S.E.2d 465, 476-77 (1996). 

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As a general matter, “FOIA requires the release of public records upon 

request.” Highland Min. Co. v. West Virginia Univ. Sch. of Med., 235 W. Va. 370, 380, 774 

S.E.2d 36, 46 (2015). See also W. Va. Code § 29B-1-4(a) (“There is a presumption of public 

accessibility to all public records[.]”). It is expressly provided under W. Va. Code 

§ 29B-1-3(a) (2015) (Repl. Vol. 2015) 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 

[W. Va. Code § 29(B)-1-4] of this article.” It has been recognized that FOIA “seeks to 

permit access to official information long shielded unnecessarily from public view and 

attempts to create a judicially enforceable public right to secure such information from 

possibly unwilling official hands.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151­

52, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989) (internal quotations and citation omitted). 

The presumption of disclosure of public records under FOIA is qualified by twenty-one 

categories of public records that are exempt from disclosure pursuant to W. Va. Code § 

29B-1-4(a). The decisions of this Court have been clear in holding 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). Accord Farley v. Worley, 215 W. Va. 412, 420, 599 S.E.2d 835, 843 

(2004). It also has been held that “[t]he party claiming exemption from the general 

disclosure requirement under West Virginia Code § 29B-1-4 has the burden of showing the 

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express applicability of such exemption to the material requested.” Syl. pt. 7, Queen v. West 

Virginia Univ. Hosps., Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987). 

Although the Regional Jail raised two provisions under FOIA as exempting 

disclosure of the cell extraction videotape, the circuit court’s order addressed only the 

exemption under W. Va. Code § 29B-1-4(a)(19). Because of our resolution of this provision, 

we need not address the provision the circuit court omitted, W. Va. Code § 29B-1-4(a)(2). 

West Virginia Code § 29B-1-4(a)(19) was added to FOIA in 2009. This is the 

first opportunity we have had to review the provision. The text of the provision sets out the 

following: 

(a) There is a presumption of public accessibility to all 

public records, subject only to the following categories of 

information which are specificallyexempt from disclosure under 

the provisions of this article: 

. . . . 

(19) Records of the Division of Corrections, Regional 

Jail and Correctional Facility Authority and the Division of 

Juvenile Services relating to design of corrections, jail and 

detention facilities owned or operated by the agency, and the 

policy directives and operational procedures of personnel 

relating to the safe and secure management of inmates or 

residents, that if released, could be used by an inmate or resident 

to escape a facility, or to cause injury to another inmate, resident 

or to facility personnel[.] 

In the context of the issue presented to this Court, we find no ambiguity in the provision. It 

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is apparent that this provision seeks to maintain the safety and security at correctional 

facilities by preventing public access to records that could be used by an inmate to escape 

from a facility, or to cause injury to someone in the facility.5 The Regional Jail contends that 

the contents of the cell extraction videotape satisfies the exemption under W. Va. Code 

§ 29B-1-4(a)(19), because it “contains numerous images of the inside of the jail and the 

movement of various jail personnel, which, if released, would compromise the safety and 

security of the facility and the inmates and staff therein.” 

The issue of whether a videotape of a cell extraction of an inmate is exempt 

from disclosure, under public record statutes similar to our FOIA, has been addressed only 

by a few courts. The federal district court in Zander v. Department of Justice, 885 F. Supp. 

2d 1 (D.D.C. 2012), is one of the few courts to squarely address the issue.6 The plaintiff in 

Zander, a former federal prisoner, filed a complaint under the federal FOIA to require the 

release of records relating to his incarceration. Among the records sought was a videotape 

of his cell extraction by correctional officers. A federal magistrate held a hearing on the 

5

Mr. Marcum contends that the videotape should not be exempted from 

disclosure under the provision because a videotape is not specifically mentioned in the 

statute. We reject this argument because the statute does not list any specific type of record 

by name. The statute speaks in broad terms that addresses records that could be used for an 

escape from a facility or to cause harm to someone in the facility. 

6

See Daily Gazette Co. v. West Virginia Dev. Office, 198 W. Va. 563, 571, 482 

S.E.2d 180, 188 (1996) (“Recognizing the close relationship between the federal and West 

Virginia FOIA, we note, in particular, the value of federal precedents in construing our state 

FOIA’s parallel provisions.”). 

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matter and issued a recommendation that the cell extraction videotape be released to the 

plaintiff in a redacted form, so that the faces of the officers involved would not be seen. The 

defendants in the case, the Department of Justice and the Bureau of Prisons, objected to the 

magistrate’s recommendation. The defendants argued before the district court judge that, 

under FOIA, 5 U.S.C. § 552(b)(7)(F), a public record like the cell extraction videotape was 

exempt from disclosure in any form. This provision of the federal FOIA exempted from 

disclosure “‘records or information compiled for law enforcement purposes, but only to the 

extent that the production of such law enforcement records or information . . . could 

reasonably be expected to endanger the life or physical safety of any individual.’” Zander, 

885 F. Supp. 2d at 6-7. The defendants made the following specific argument: 

Defendants maintain that the videotape sought by Plaintiff 

shows BOP’s Calculated Use-of-Force Team enter the 

Plaintiff’s cell, apply restraints, and remove him from the cell, 

depicting the equipment, tactics, movements, and procedures 

used during the incident. Defendants argue that producing the 

video, even with the faces of the officers obscured, would 

nonetheless disclose the equipment, tactics, and procedures 

utilized by the BOP Calculated Use-of-Force Team and that 

such disclosure could reasonably be expected to endanger the 

lives or physical safety of any BOP officers who subsequently 

utilize those techniques and equipment in the course of their 

duties. Furthermore, defendants contend that the video should 

be withheld because obliterating the protected information 

would be burdensome to the agency and the remaining 

information would be of little value. 

Zander, 885 F. Supp. 2d at 7 (internal quotations and citations omitted). The district court 

judge agreed with the defendants and rejected the magistrate’s recommendation. The district 

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court concluded as follows: 

The Court finds that the video is properly withheld under 

FOIA exemption 7(F). Exemption 7(F) most clearly applies to 

protect law enforcement officials from disclosure of information 

that could prove threatening to them. . . . 

[T]he Court concludes that the agency’s assessment of the 

possible danger to law enforcement officials from disclosing the 

video is abundantly reasonable. Removing prisoners from their 

cells presents clear dangers to the law enforcement officers who 

are charged with the task. Disclosure of a recording of a “cell 

extraction” presents the possibilitythat other prisoners will learn 

the methods and procedures utilized by BOP officials, and that 

this information might be used to thwart the safe application of 

these techniques in the future. The Court does not mean to 

suggest that plaintiff himself presents such a danger, but 

dissemination to the public at large does present clear risks to 

law enforcement officials. 

Zander, 885 F. Supp. 2d at 7-8 (internal citations omitted). See also Center for 

Constitutional Rights v. Central Intelligence Agency, 765 F.3d 161, 169 (2d Cir. 2014) 

(finding FOIA exemption precluded release of cell extraction videotapes of prisoners at 

Guantanamo Bay Naval Base); Gabrion v. United States Dep’t of Justice, No. 2:15-CV-24­

WTL-DKL, 2016 WL 5121987, at *7 (S.D. Ind. Sept. 21, 2016) (“The Court finds that 

Exemption 7(F) applies, as disclosure of the video would present clear risks to law 

enforcement officials. Other prisoners might learn this information and use it in the future.”); 

International Counsel Bureau v. United States Dep’t of Def., 906 F. Supp. 2d 1, 7 (D.D.C. 

2012) (finding FOIA exemption precluded release of cell extraction videotapes of prisoners 

at Guantanamo Bay Naval Base); In Re: Ben Richard, Jr., No. 13-ORD-022, 2013 WL 

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565014 (Ky. Op. Att’y Gen. February 5, 2013) (“Release of the requested video footage is 

a security threat because it can be viewed by others to assess the technology and/or 

procedures used by LMDC [Louisville Metropolitan Department of Corrections] and other 

law enforcement agents in the handling of inmates, it may be viewed to develop strategies 

used to overtake LMDC’s officers and possibly other law enforcement agents, and the 

footage can be used to study the camera’s range of sight–what is within the camera’s view 

and the areas outside of the camera’s image which can be used to smuggle contraband and 

other strategies of takeover or escape.”); Dilworth v. Westchester Cty. Dep’t of Correction, 

940 N.Y.S.2d 146, 149 (2012) (“[T]he Department established, through the Sergeant’s 

affidavit, that disclosure of the remaining electronic video surveillance records requested by 

the petitioner could expose [surveillance] limitations and, thereby, endanger the life or safety 

of any person.”). 

Both parties in this proceeding contend that the decision in Ballard v. 

Department of Corr., 122 Mich. App. 123, 332 N.W.2d 435 (1982), supports their respective 

opposite positions in this appeal.7 The plaintiff in Ballard filed an action under Michigan’s 

7

Mr. Marcum also cited in passing to the decision in Dhiab v. Obama, 70 

F. Supp. 3d 486 (D.D.C. 2014) as support for disclosure of his cell extraction videotape. 

First off, the federal decision in Dhiab did not involve disclosure of a cell extraction 

videotape under the federal FOIA. In that case, a detainee at the United States Naval Base, 

Guantanamo Bay, Cuba, filed a habeas corpus petition seeking, among other things, to 

prevent the federal government from force-feeding him. During that proceeding, the 

(continued...) 

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7

(...continued) 

detainee’s attorney obtained, under seal, copies of videotapes of the detainee being extracted 

from his cell and force-fed. The videotapes were classified by the government as 

“SECRET,” because their public disclosure could harm national security. Several news 

agencies intervened in the proceeding and sought disclosure of the videotapes. The 

intervenors sought disclosure under the First Amendment and common law. The district 

court ordered the videotapes disclosed, under the First Amendment, in a redacted form to 

protect information identifying government personnel. The government eventuallyappealed 

the disclosure order in the restyled opinion of Dhiab v. Trump, No. 16-5011, 2017 WL 

1192911 (D.C. Cir. March 31, 2017). The appellate court reversed the district court’s 

disclosure order for reasons that included the following: 

[T]he intervenors are unable to cite a single case in which a 

court–other than the district court here–found that the First 

Amendment compelled public disclosure of properly classified 

national security information in a habeas proceeding, or in any 

other type of civil proceeding. 

. . . . 

The government identified multiple ways in which 

unsealing these recordings would likelyimpair national security. 

Two of these risks–detainees triggering forcible encounters and 

developing countermeasures–together and individually, were 

enough to prevent these recordings from becoming public. The 

government's declarations explained that the recordings would 

enable detainees, assisted by outside militants, to develop 

countermeasures to the guards’ cell-extraction and enteralfeeding techniques. The district court dismissed this prospect 

because the government had already released substantial 

information about these procedures and the detainees were 

already intimately familiar with them. The government’s 

declarations contradict the court’s assessment. The recordings 

of the feeding process contain significantly more information 

than previously released imagery, and the publicly released 

information about cell extractions was outdated and described 

techniques not being used at Guantanamo. The recordings also 

(continued...) 

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FOIA in order to obtain a copy of a film showing him being forcefully removed from his cell. 

The trial court ordered the defendant to turn over the film. The defendant appealed and 

argued that the film was exempted from disclosure under a provision in FOIA that provided 

for nondisclosure of a record if it “would prejudice a public body’s ability to maintain the 

physical security of custodial or penal institutions occupied by persons arrested or convicted 

of a crime or admitted because of a mental disability, unless the public interest in disclosure 

under this act outweighs the public interest in nondisclosure.” Ballard, 122 Mich. App. at 

124, 332 N.W.2d at 436. The defendant contended that release of the film “would prejudice 

its ability to maintain the physical security of its institutions because such films may reveal 

the methods, tactics, and equipment used to restrain and subdue prisoners and because, by 

7

(...continued)
 

show elements of the procedures that take place outside the
 

detainee’s presence or shielded from the detainee or otherwise
 

obstructed from view. . . .
 

The government’s expert judgment was that militants 

could study the recordings repeatedly and slowly, looking for 

“patterns” of “mistakes” not identifiable from first-hand 

experience or written descriptions. . . . When detainees resist 

what are already hazardous procedures for the guards, this could 

further endanger government personnel at Guantanamo. Guards 

have been kicked, grabbed, punched, knocked down, bitten, and 

sprayed with bodily fluids. The government’s interest in 

ensuring safe and secure military operations clearly overcomes 

any qualified First Amendment right of access. 

Dhiab, 2017 WL 1192911, at *6-7 (internal quotations and citations omitted). To the extent 

that Dhiab has any relevancy to our FOIA analysis, it supports the Regional Jail’s position 

that the cell extraction videotape should be exempted from disclosure. 

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studying such films, prisoners might learn to circumvent such methods, tactics, and 

equipment.” Id. at 125, 332 N.W.2d at 436. The appellate court determined that the statute 

imposed a case-by-case approach to the disclosure of cell extraction film. It was said that, 

the balancing test contained in the exemption at issue here 

suggests that a case-by-case approach is required because it 

reveals a legislative intent to accommodate, insofar as it is 

possible, the respective public interests in institutional security 

and freedom of information. If the balancing test must be 

performed with generalizations rather than specifics, there will 

be cases in which one of these public interests must be 

sacrificed without any countervailing advancement of the other 

public interest. 

Id. at 127, 332 N.W.2d at 437. Applying the balancing test to the facts of the case, the 

appellate court agreed with the trial court that the cell extraction film did not threaten the 

security of the institution, because it “showed only the use of a mattress and overwhelming 

manpower to subdue plaintiff[.]” Id. at 125, 332 N.W.2d at 436.8 

8

Several other cases are cited in Mr. Marcum’s brief that are not relevant. The 

cases cited do not involve disclosure of cell extraction videos pursuant to public disclosure 

statutes. All of the cases cited simply involve the admission into evidence of cell extraction 

videos during criminal proceedings or at proceedings against correction officers. See 

McAlister v. State Pers. Bd., No. FO68970, 2015 WL 1541107 (Cal. Ct. App. April 1, 2015) 

(administrative proceeding); Department of Pub. Safety &Corr. Servs. v. Cole, 103 Md. App. 

126, 652 A.2d 1159 (1995), rev’d, 342 Md. 12, 672 A.2d 1115 (1996) (same); Ohio Dep’t 

of Rehab. & Corr. v. Price, No. 10AP-260, 2010 WL 4683571 (Ohio Ct. App. Nov. 18, 

2010) (same); Harper v. Ohio Dep’t of Rehab. & Corr., No. 08 MA 259, 2010 WL 1316236 

(Ohio Ct. App. March 30, 2010) (same); Collins v. Ohio Dep’t of Rehab. & Corr., No. 

2004-04370, 2009 WL 1433447 (Ohio Ct. Cl. May 20, 2009) (excessive force claim brought 

by inmate); Hawkins v. State Civil Serv. Comm’n, No. 1386 C.D. 2013, 2014 WL 2447213 

(Pa. Commw. Ct. May30, 2014) (administrative proceeding); State v. Woolbert, 181 Vt. 619, 

926 A.2d 626 (2007) (probation revocation); State v. Magett, 355 Wis. 2d 617, 850 N.W.2d 

(continued...) 

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We are not persuaded by the decision in Ballard, because Michigan’s FOIA 

statute expressly permitted the release of information like a cell extraction videotape under 

a balancing test. West Virginia’s FOIA provision at issue, W. Va. Code § 29B-1-4(a)(19), 

does not contain a balancing test for determining whether to disclose a record that could be 

used “by an inmate or resident to escape a facility, or to cause injury to another inmate, 

resident or to facility personnel.” Our statute provides a blanket prohibition against 

disclosure of any record coming within its exemption. Consequently, we believe the decision 

in Zander is persuasive in understanding and applying W. Va. Code § 29B-1-4(a)(19). 

In the instant case the trial court succinctly described the contents of the cell 

extraction videotape as follows: 

12. The video at issue in the instant case depicts four 

individuals approaching and entering a common area of the jail. 

One of [the] individuals shouts the Petitioner’s name and 

instructs him to “[g]et on the floor.” The four men proceed 

upstairs to the Petitioner’s cell, and one of the m[e]n bangs on 

the cell door. One of the men throws a flash bang grenade into 

the cell. Then, the same individual throws another flash bang 

grenade into the cell. The Petitioner is again instructed to “[g]et 

on the floor.” Once the fumes from the explosions dissipate, 

two individuals enter the cell and restrain the Petitioner while 

another watches guard. The group of four individuals appears 

to be joined by others, and Petitioner is then carried out of his 

cell and down the stairs to the common area of the facility, 

where he is placed on a gurney. He is then pushed through the 

8

(...continued) 

42 (2014) (trial); State v. Lindell, 296 Wis. 2d 418, 722 N.W.2d 399 (2006) (same). 

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hallway, apparently to medical, where heath care personnel 

appear to be checking his vital signs. The Petitioner is then 

taken outside and although dark, it appears that he is being 

placed into a vehicle for transport.9 

It is quite clear from the circuit court’s description that the videotape identifies 

the correction officers making the cell extraction, shows their equipment, shows their 

location before and during the entry of the cell, and reveals the path from the cell to other 

areas in the facility, including a door that leads to a parking area of the facility. We do not 

believe that the legislature intended such information to be easily accessed by the public 

through FOIA, because it discloses information involving the design of the facility and 

operational procedures of personnel relating to the safe and secure management of inmates, 

which could be used for an escape or to cause injury.10 

After a mature consideration of the issue, we now hold that, pursuant to W. Va. 

Code § 29B-1-4(a)(19), disclosure of a videotape of the cell extraction of an inmate is 

9

This Court’s independent review of the videotape confirmed the trial court’s 

description of events. 

10It was correctly pointed out in the amicus brief of the Division of Corrections 

that “[i]f an inmate or inmate accomplice . . . requests and gets a copy of video surveillance 

of the transport area and or perimeter area of the regional jail, an inmate has videotape 

showing a potential escape route.” See, e.g., Black v. Swoboda, No. 95-2654-FT, 1996 WL 

593827, *1 n.5 (Wis. Ct. App. Oct. 17, 1996) (“The Department of Corrections’ policy 

precludes providing requesters with a copy of the [cell extraction] tape to prevent an analysis 

of the correctional institution’s security precautions, procedures and capabilities.”). 

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prohibited, because it displays part of the design of a correctional facility and the operational 

procedures of personnel relating to the management of inmates, such that, if disclosed, could 

be used by an inmate to escape from a facility or to cause injury to another inmate, resident 

or to facility personnel.11 In view of our holding, it is clear that the circuit court committed 

error in ordering the disclosure of the cell extraction videotape.12 

11Mr. Marcum’s brief indicates that his counsel has in the past requested “jail 

videos” from the Regional Jail, and that such videos were produced without a protective 

order. We are not concerned with any past experience of counsel in obtaining jail videos 

from the Regional Jail. Our concern is with the application of W. Va. Code § 29B-1-4(a)(19) 

on the release of cell extraction videotapes. 

12We should note that, even though the videotape is exempt from disclosure 

under FOIA, this does not preclude its disclosure under the discovery rules in a civil lawsuit. 

See Syl. pt. 2, Maclay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000) (“The provisions of 

this state’s Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (1998), which 

address confidentiality as to the public generally, were not intended to shield law 

enforcement investigatory materials from a legitimate discovery request when such 

information is otherwise subject to discovery in the course of civil proceedings.”). See also 

Wagner v. Warden, Civ. Action No. ELH-14-791, 2016 WL 7178297, at *13 (D. Md. Dec. 

8, 2016) (“Wagner seeks discovery, among other things, of the video recording of his cell 

extraction. . . . Wagner is entitled to conduct some discovery.”); Hyatt v. Rock, Civ. No. 

9:15-CV-0089 (DNH/DJS), 2016 WL 6820378, at *6 (N.D.N.Y. Nov. 18, 2016) (“As to 

Demand No. 67, any video of the cell extraction on May 12, 2012 shall be provided to the 

Plaintiff for viewing, if that has not been done already.”). Such sensitive information may 

be disclosed in a civil lawsuit because a trial court can impose restrictions on its 

dissemination and use through a protective order. As we noted previously, the Regional Jail 

was prepared to turn over the videotape under a protective order. Obviously our holding 

does not remove this offer from the table. 

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IV.
 

CONCLUSION
 

The circuit court’s order of November 4, 2015, requiring disclosure of the cell 

extraction videotape, is reversed. 

Reversed. 

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