No. 13-0217 – Hurlbert and Sage Information Services v. Matkovich and Robinson 

FILED 

June 6, 2014
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

LOUGHRY, Justice, concurring: 

While I concur with the result reached by the majority in this case, I write 

separately to invite the Legislature to take a serious look at our FOIA1 (the “Act”) and to 

clarify whether the reach of our Act was intended to be limited to this state’s citizenry. The 

majority casually dismissed the argument raised by the State Tax Department that FOIA 

requests submitted by non-residents fall outside the scope of our Act. Rather than hastily 

concluding in a footnote that the Legislature’s use of the term “person” and the 

accompanying broad definition of that term necessarily put this issue to rest, the majority 

should have considered whether any other provisions of the Act address the intended reach 

of our FOIA legislation. 

Looking to the declaration of policy included as part of our Act, I submit that 

the Legislature framed its objective underlying the enactment of our FOIA laws in terms that 

suggest its concern was limited to providing access to public records to the citizens of this 

state. After recognizing that the Act is premised on a recognition “that government is the 

servant of the people, and not the master of them,” the Legislature expanded its concerns by 

1

See W.Va. Code §§ 29B-1-1 to -7 (2012). 

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announcing: 

that all persons are, unless otherwise expressly provided by law, 

entitled to full and complete information regarding the affairs 

of government and the official acts of those who represent them 

as public officials and employees. The people, in delegating 

authority, do not give their public servants the right to decide 

what is good for the people to know and what is not good for 

them to know. The people insist on remaining informed so that 

they may retain control over the instruments of government they 

have created. To that end, the provisions of this article shall be 

liberally construed with the view of carrying out the above 

declaration of policy. 

W.Va. Code § 29B-1-1 (2012) (emphasis supplied). 

Even a cursory reading of the underscored language above demonstrates that 

the Legislature enacted our FOIA laws with the aim of benefitting West Virginia citizens. 

Given that non-residents do not participate in the elections of our state office holders and 

consequently cannot delegate authority to those state office holders, it is evident, or at least 

implicit, that non-residents were not included within the Act’s declared statement of policy. 

And, because the Legislature was clear that the Act’s provisions were to be effectuated in 

accord with this policy statement, it is arguable that the majority has overlooked a critical 

argument raised by the State Tax Department regarding the intended recipients of our FOIA. 

The majority’s dismissal of this issue based entirely on the legislative 

employment of the term “person” rather than “citizen” in describing the entities who may 

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submit a FOIA request overly simplifies the necessary inquiry. See W.Va. Code § 29B-1­

3(1). Virginia’s FOIA act, which expressly limits FOIA requests to its residents, was 

recently upheld by the United States Supreme Court in a rare, unanimous decision. See 

McBurney v. Young, __ U.S. __, 133 S.Ct. 1709 (2013). The only language in Virginia’s 

FOIA that addresses who the provisions of the legislation are aimed at is contained within 

its statement of policy. See Va. Code Ann. § 2.2-3700. (2011). While that policy statement 

includes an overt rather than implied reference to its citizens,2 the Virginia policy otherwise 

echoes the concerns addressed in our Act. The Virginia Act declares that “[t]he affairs of 

government are not intended to be conducted in an atmosphere of secrecy since at all times 

the public is to be the beneficiary of any action taken at any level of government.” Id. In 

analyzing the constitutionality of the Virginia statute, the high court approvingly describes 

the objective at issue in limiting the reach of its FOIA provisions to its residents: 

The state [Virginia] FOIA essentially represents a mechanism 

by which those who ultimately hold sovereign power (i.e., the 

citizens of the Commonwealth) may obtain an accounting from 

the public officials to whom they delegate the exercise of that 

power. In addition, the provision limiting the use of the state 

FOIA to Virginia citizens recognizes that Virginia taxpayers 

foot the bill for the fixed costs underlying recordkeeping in the 

Commonwealth. 

2

The Virginia FOIA act begins its policy statement by observing that “the General 

Assembly ensures the people of the Commonwealth ready access to public records in the 

custody of a public body or its officers and employees . . . .” Va. Code Ann. § 2.2-3700. 

(emphasis supplied). The term “citizen” is used within the policy statement not with 

reference to providing access to documents but in terms of providing Virginia citizens with 

access to governmental operations or meetings. See id. 

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McBurney, __ U.S. at __, 133 S.Ct. at 1716 (citation omitted). 

Because I have serious concerns with regard to the potential release of highly 

personal and identifying information about the homeowners’ dwellings that are the subject 

of the underlying FOIA request submitted by a non-resident in this case, I encourage the 

Legislature to act with alacrity in revisiting the subject of the intended reach of our Act. 

Numerous other states besides Virginia have enacted their FOIA laws in a manner that 

excludes document requests from non-residents. See, e.g., Ala. Code § 36-12-40 (2012 

Cum. Supp.); Ark. Code Ann. § 25-19-105 (2011 Supp.); Del. Code Ann., Tit. 29, § 10003 

(2012 Supp.); Mo. Rev. Stat. § 109.180 (2012); N.H. Rev. Stat. Ann. § 91-A:4 (West 2012); 

N.J. Stat. Ann. § 47:1A-1 (West 2003); Tenn. Code Ann. § 10-7-503 (2012). If, as the 

declaration of policy to our Act indicates, the Legislature’s objective was to limit FOIA 

requests under our Act to the people of this state, language clarifying that objective can 

easily be included to achieve that effect. See W.Va. Code § 29B-1-1. 

While the preparation of a Vaughan index may resolve some of the concerns 

raised in this case , I am nonetheless troubled by the fact that an out-of-state entity is seeking 

access to voluminous housing records of West Virginia citizens for admittedly commercial 

purposes. Given the highly sensitive and extremely personal information contained in those 

documents, all necessaryefforts need to be taken to protect against either misuse or wrongful 

disclosure of that information. And, while I do not question the value of providing access 

to public records in the interest of promoting transparency and accountability, it is far from 

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clear how the provision of the requested records can serve to meet any such interests. Or
 

that a non-resident of this state has any expectation or entitlement to them. Accordingly, I
 

respectfully concur.
 

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