IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term 

FILED 

May 21, 2015 

No. 14-0370 released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

HIGHLAND MINING COMPANY, 

Plaintiff Below, Petitioner 

v. 

WEST VIRGINIA UNIVERSITY 

SCHOOL OF MEDICINE, 

Defendant Below, Respondent 

Appeal from the Circuit Court of Monongalia County
 

The Honorable Phillip D. Gaujot, Judge
 

Civil Action No. 12-C-275
 

AFFIRMED, IN PART; REVERSED, IN PART;
 

AND REMANDED
 

Submitted: March 4, 2015
 

Filed: May 21, 2015
 

Christopher B. Power, Esq. Carte P. Goodwin, Esq. 

Robert M. Stonestreet, Esq. Johnny M. Knisely II, Esq. 

Babst, Calland, Clements and Zomnir, PC Benjamin B. Ware, Esq. 

Charleston, West Virginia Elise N. McQuain, Esq. 

Attorneys for Petitioner Goodwin & Goodwin, LLP 

Charleston, West Virginia 

Attorneys for Respondent 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision
 

of this case.
 

SENIOR STATUS JUSTICE MCHUGH sitting by temporary assignment.
 

JUSTICE KETCHUM concurs in part, dissents in part, and reserves the right to file a
 

separate opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A circuit court’s entry of summary judgment is reviewed de novo.” 

Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 

2. “‘“The disclosure provision of this State’s Freedom of Information 

Act, W.Va. Code, 29B-1-1 et seq., as amended, [is] to be liberally construed, and the 

exemptions to such Act are to be strictly construed. W.Va. Code, 29B-1-1.” Syl. Pt. 4, 

Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).’ Syl. pt. 5, Queen v. West 

Virginia University Hospitals, 179 W.Va. 95, 365 S.E.2d 375 (1987).” Syl. Pt. 1, Daily 

Gazette Co. v. W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996). 

3. “W.Va. Code, [§ 29B-1-4(a)(8)], which exempts from disclosure 

‘internal memoranda or letters received or prepared by any public body’ specifically 

exempts from disclosure only those written internal government communications 

consisting of advice, opinions and recommendations which reflect a public body’s 

deliberative, decision-making process; written advice, opinions and recommendations 

from one public body to another; and written advice, opinions and recommendations to a 

public body from outside consultants or experts obtained during the public body’s 

deliberative, decision-making process. W.Va. Code, [§ 29B-1-4(a)(8)] does not exempt 

from disclosure written communications between a public body and private persons or 

entities where such communications do not consist of advice, opinions or 

recommendations to the public body from outside consultants or experts obtained during 

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the public body’s deliberative, decision-making process.” Syl. Pt. 4, Daily Gazette Co. v. 

W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996). 

4. West Virginia’s Freedom of Information Act, West Virginia Code § 

29B-1-4(a)(8) (2012), exempts from disclosure “internal memoranda or letters received 

or prepared by any public body” as defined by West Virginia Code § 29B-1-2(3) (2012). 

5. To invoke the “internal memoranda” exemption set forth in West 

Virginia Code § 29B-1-4(a)(8) (2012) successfully, the public body must show that in the 

context in which the materials are prepared or considered, the documents are both 

predecisional and deliberative to its decision-making process. Predecisional documents 

are prepared in order to assist a public body decisionmaker in arriving at his or her 

decision. Deliberative material reflects the give-and-take of the consultative process, by 

revealing the manner in which the public body evaluates possible alternatives relevant to 

the decisional process. 

6. “The primary purpose of the invasion of privacy exemption to the 

Freedom of Information Act, W.Va.Code, [§ 29B-1-4(a)(2)], 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). 

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7. The West Virginia Freedom of Information Act does not provide an 

“academic freedom” exemption to its general disclosure provision, West Virginia Code § 

29B-1-3 (2012). 

8. “A statute, or an administrative rule, may not, under the guise of 

‘interpretation,’ be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer 

Advocate Div. v. Pub. Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989). 

9. “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 v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004). 

10. “Pursuant to West Virginia Code § 29B-1-3(5) (2012), a public body 

is vested with the authority and discretion to impose a search or retrieval fee in 

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connection with a Freedom of Information Act request to provide public records provided 

that such fee is reasonable.” Syl. Pt. 2, King v. Nease, 233 W.Va. 252, 757 S.E.2d 782 

(2014). 

11. “For a person to have brought a suit for the disclosure of public 

records under the West Virginia Freedom of Information Act (FOIA), as permitted by 

W.Va. Code § 29B-1-5 (1977) (Repl.Vol.1998), so as to entitle him/her to an award of 

attorney’s fees for “successfully” bringing such suit pursuant to W.Va. Code § 29B-1-7 

(1992) (Repl.Vol.1998), he/she need not have prevailed on every argument he/she 

advanced during the FOIA proceedings or have received the full and complete disclosure 

of every public record he/she wished to inspect or examine. An award of attorney’s fees 

is proper even when some of the requested records are ordered to be disclosed while 

others are found to be exempt from disclosure or are released in redacted form. In the 

final analysis, a successful FOIA action, such as would warrant an award of attorney’s 

fees as authorized by W.Va. Code § 29B-1-7, is one which has contributed to the 

defendant’s disclosure, whether voluntary or by order of court, of the public records 

originally denied the plaintiff.” Syl. Pt. 7, Daily Gazette Co. v. W.Va. Dev. Office, 206 

W.Va. 51, 521 S.E.2d 543 (1999). 

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Workman, Chief Justice: 

Petitioner Highland Mining Company (“Highland”) filed this civil action 

under the West Virginia Freedom of Information Act (“FOIA”), West Virginia Code §§ 

29B-1-1 to -7 (2012), seeking disclosure of public records from Respondent West 

Virginia University School of Medicine (“WVU”). The FOIA requests focused on 

documents related to several articles co-authored by WVU Associate Professor Michael 

Hendryx, Ph.D., suggesting that environmental impacts of surface coal mining play a role 

in the health problems of the area’s residents. The parties litigated this matter for two 

years in the Circuit Court of Monongalia County; WVU released certain documents to 

Highland but withheld certain other documents, either in whole or in part, claiming they 

were statutorily exempt. Finally, the circuit court granted summary judgment in favor of 

WVU, and dismissed this action. 

On appeal to this Court, Highland raises several assignments of error and 

argues the circuit court’s order should be reversed because it is based upon an 

unprecedented expansion of the FOIA exemptions. Upon review, we affirm, in part; 

reverse, in part; and remand the case for further proceedings. For the reasons discussed 

below, this Court finds: (1) WVU may invoke the FOIA’s “internal memoranda” 

exemption set forth in West Virginia Code § 29B-1-4(a)(8) to withhold documents that 

reflect Professor Hendryx’s deliberative process; (2) WVU may not claim an “academic 

freedom” privilege to avoid the plain language of the FOIA; (3) the FOIA’s “personal 

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privacy” exemption set forth in West Virginia Code § 29B-1-4(a)(2) is not applicable to 

documents containing anonymous peer review comments of the draft articles but those 

documents are still exempt from disclosure under the FOIA’s “internal memoranda” 

exemption; (4) Highland should have been afforded the opportunity to modify its FOIA 

requests before the circuit court dismissed the action; and (5) the circuit court must issue 

a ruling on Highland’s request for attorney fees and costs. Accordingly, we remand this 

matter for further proceedings consistent with this opinion. 

I. FACTUAL AND PROCEDURAL HISTORY 

Highland submitted extensive FOIA requests to WVU on February 1, 2012. 

Highland requested documents related to eight articles co-authored by Professor 

Hendryx, Director of the West Virginia Rural Health Research Center, with WVU’s 

School of Medicine’s Department of Community Medicine. In those articles, Professor 

Hendryx suggested there was a connection between surface coal mining and birth defects, 

cancer, and poor quality of life in the region. 1 Highland requested essentially all 

1 One of these articles sets forth the following conclusions: 

Results indicate that previously documented HRQOL 

[Health Related Quality of Life] disparities in Appalachia’s 

coal mining areas are concentrated in MTM [Mountaintop 

Mining] zones in the central part of the region. These 

disparities partly reflect the chronic socioeconomic 

weaknesses inherent in coal-dependent economies and 

highlight the need for efforts at economic diversification in 

these areas. However, significant disparities persist after 

control for these risks and suggest that the environmental 

(continued . . .) 

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documents related to the initiation, preparation and publication of Professor Hendryx’s 

articles. 2 

impacts of MTM may also play a role in the health problems 

of the area’s population. In April 2010, the EPA 

[Environmental Protection Agency] issued new guidance 

regulating MTM that recognized the environmental and 

community health costs imposed by this practice: the 

guidance was intended to make new MTM permits much 

more difficult to obtain. Several weeks after this ruling, the 

first MTM permit application to come before the EPA was 

nevertheless approved, leading to concerns from 

environmental communities that the rules would not be 

interpreted or enforced as intended. Our results contribute to 

the evidence base in support of the April EPA decision. 

Zullig, K.J. and Hendryx, M., et al., Health-Related Quality of Life Among Central 

Appalachian Residents in Mountaintop Mining Counties, 101, No. 5 Am. J. Pub. Health 

848, 852 (May 2011) (footnotes omitted). 

2 Highland submitted two FOIA requests on the same day. In one FOIA request 

(referred to by the parties as the “subpoena-based FOIA request”), Highland requested 

the release of the same information that had been the subject of three subpoenas 

previously served on WVU by Highland in December of 2011. Articles co-authored by 

Professor Hendryx were used to challenge Highland’s proposal to expand its Reylas 

surface coal mine in Logan County, West Virginia, in a civil action filed in the United 

States District Court for the Southern District of West Virginia. Ohio Valley Environ. 

Coal., Inc., et al. v. U.S. Army Corps. of Eng’s, Civil Action No. 3:11-cv-0149 (S.D. 

W.Va. 2011). The plaintiffs in that litigation sought to add a new claim to their complaint 

based upon adverse health effects associated with surface coal mining. Highland served 

three subpoenas on non-party WVU seeking information regarding the three articles cited 

by the plaintiffs in that lawsuit. After the district court denied the plaintiffs’ motion to 

add health-based claims to their complaint, Highland withdrew the subpoena request in 

January of 2012. However, Highland advised WVU that it would file a FOIA request 

seeking the same information. 

In the subpoena-based FOIA request, Highland requested all documents related to 

the initiation, preparation and publication of those articles; it requested the curriculum 

vitae of the study authors, the data used in the statistical analysis presented in the subject 

(continued . . .) 

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By e-mails dated March 2, 2012, WVU refused to release any documents 

responsive to the FOIA requests. WVU asserted the documents were exempt from 

disclosure under the following FOIA exemptions: (1) information of a personal nature, 

West Virginia Code § 29B-1-4(a)(2); (2) information specifically exempt from disclosure 

by statute, West Virginia Code § 29B-1-4(a)(5); (3) internal memoranda, West Virginia 

Code § 29B-1-4(a)(8); and (4) trade secrets, West Virginia Code § 29B-1-4(a)(1). 

On April 12, 2012, Highland instituted this action against WVU, seeking 

disclosure of the documents it requested pursuant to the FOIA. WVU filed a motion to 

dismiss on August 3, 2012, claiming the FOIA requests were overly broad and unduly 

burdensome; Highland filed a motion for summary judgment on September 11, 2012. 

Following a hearing on these motions, the circuit court rejected WVU’s claim of undue 

burden. The circuit court stated WVU was “stonewalling” Highland by refusing to 

provide any responsive documents. By order entered November 7, 2012, the circuit court 

denied WVU’s motion to dismiss and deferred a ruling on Highland’s motion for 

articles, including data discussed but not shown, documents and communications related 

to the selection or rejection of particular mining areas to be examined in the studies, 

communications with members of specifically-identified third-party organizations in the 

course of preparing the articles, and documents related to the door-to-door health 

interviews conducted pursuant to the Self-Reported Cancer Study, including sample 

interview forms and the completed forms. 

In its other FOIA request (referred to by the parties as the “communications FOIA 

request”), Highland requested letters, e-mails and other communications sent to or from 

Professor Hendryx pertaining to five other articles that he co-authored. In addition, the 

communications FOIA request sought peer review comments on drafts of Professor 

Hendryx’s articles. 

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summary judgment. The circuit court required that WVU release any responsive 

information to Highland, and if any responsive documents were withheld from disclosure 

or redacted, that WVU provide a Vaughn index3 and explanative affidavit. 

Thereafter, WVU retained the services of a document management 

company to electronically manage the production of documents for Highland’s FOIA 

requests. Over the course of this litigation, WVU has made five productions of 

documents to Highland, producing some 2,364 documents, totaling 11,090 pages. Four of 

those document productions 4 included a separate Vaughn index and corresponding 

affidavit, explaining WVU’s decision to redact 119 documents and withhold 772 

documents. 

3 See Syl. Pt. 6, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004) (“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. The Vaughn index need not be so detailed that it compromises the 

privilege claimed. The public body must also submit an affidavit, indicating why 

disclosure of the documents would be harmful and why such documents should be 

exempt. Syllabus point 3 of Daily Gazette Co., Inc. v. West Virginia Development Office, 

198 W.Va. 563, 482 S.E.2d 180 (1996), is hereby expressly modified.”). 

4 The first Vaughn index listed 121 documents WVU withheld on the basis they 

were not considered “public records” subject to the FOIA; WVU later withdrew that 

justification for withholding any documents. Under the FOIA, a “‘[p]ublic record’ 

includes any writing containing information relating to the conduct of the public’s 

business, prepared, owned and retained by a public body.” W.Va. Code § 29B-1-2(4). 

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On April 3, 2013, Highland filed a renewed motion for summary judgment, 

arguing the Vaughn indices that WVU provided were facially insufficient and that most, 

if not all, of the exemptions cited by WVU were not applicable. Following briefing, the 

circuit court held a hearing on this motion. On May 30, 2013, the circuit court entered an 

“Agreed Order Regarding Preparation of Sample Vaughn Index.” The circuit court 

required WVU to provide a sample Vaughn index with respect to a limited number of 

withheld documents; this Vaughn index was to include a more detailed explanation of 

each withheld document, specifically, how each cited exemption applied to justify the 

respective withholding. 

On July 17, 2013, WVU provided the sample Vaughn index and the 

affidavit of WVU’s associate general counsel. The sample Vaughn index listed ninetythree documents that were redacted or withheld from production. According to WVU, 

some documents were withheld on the basis of the FOIA’s “internal memoranda” 

exemption, some documents were withheld on the basis of “academic freedom” privilege, 

and some documents were withheld on the basis of the FOIA’s “trade secret” exemption. 

On November 6, 2013, the circuit court entered an “Agreed Order 

Regarding Briefing on Outstanding Issues,” pursuant to which it required both parties to 

file renewed motions for summary judgment. Thereafter, the parties filed briefs and 

identified those documents listed on the sample Vaughn index they wanted the circuit 

court to review in camera. 

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In Highland’s memorandum of law in support of its renewed motion for 

summary judgment, Highland provided the following factual background regarding its 

request for documents concerning Professor Hendryx’s work: 

At all relevant times, Michael Hendryx, Ph.D., was a 

professor employed by the defendant West Virginia 

University School of Medicine (“WVU”) who holds degrees 

in psychology but is not a medical doctor, toxicologist, or 

epidemiologist. Prof. Hendryx was the Director of the West 

Virginia Rural Health Research Center, where he and his 

colleagues received public funds to research rural health 

issues. In that capacity, Hendryx published taxpayer-funded 

papers such as those that are the subject of the FOIA 

Requests, focused on linking coal mining and adverse health 

impacts. His goal – in his own words – is to convince 

“politicians” that West Virginia “can have a better economy if 

we work to create a more diverse economy that does not 

depend on coal.” He further hopes his studies help eliminate 

mountaintop removal mining and focus policymakers away 

from coal and towards “cleaner” forms of energy. He thinks 

that “tighter standards on emissions controls is an important 

outcome of [his] research.” He hopes “to get [his papers] 

more in the eyes of state policy makers” so that “the 

Appalachian people and governments could consider whether 

our reliance on coal mining for the economy is a good idea or 

not.” (footnotes and citations omitted). 

Highland requested that the circuit court order WVU to provide all responsive documents 

listed on the sample Vaughn index, arguing they do not fall under any applicable FOIA 

exemption. Highland also requested that the circuit court order WVU to confer with 

Highland regarding the retrieval and review of additional responsive materials that have 

yet to be gathered in response to the FOIA request. Finally, Highland asserted the circuit 

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court should award it attorney fees and costs in accordance with West Virginia Code § 

29B-1-7 because WVU improperly denied Highland access to the public records. 

In WVU’s memorandum of law in support of its renewed motion for 

summary judgment, WVU argued: 

The majority of the documents were withheld or 

redacted because they contain the preliminary deliberations 

and research of an academic professor. Specifically, these 

documents include draft research papers and correspondence 

between co-authors with comments or suggestions regarding 

the drafts themselves. Like other state employees (perhaps 

even more so), these faculty members must be permitted the 

latitude to craft and hone their work in an environment that 

fosters the free exchange of ideas. 

Thus, WVU claimed the documents withheld were exempt from disclosure under the 

“internal memoranda” exemption of the FOIA, and/or an “academic freedom” privilege.5 

WVU also argued that Highland’s FOIA requests were unduly burdensome because 

WVU identified over 240,000 documents that were potentially responsive to Highland’s 

requests and “[t]o date, WVU [had] reviewed 43,733 documents in a process that . . . 

spanned the pendency of this case.” 

5 In this pleading, WVU did not contend the documents were withheld based on 

the FOIA’s “trade secret” exemption. WVU stated that although this exemption had been 

asserted previously, it no longer believed the circuit court had to specifically address this 

issue because the same documents covered by the “trade secret” exemption were subject 

to other exemptions asserted by WVU. 

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Following an in camera review of the documents,6 the circuit court entered 

an order on March 19, 2014, granting summary judgment to WVU and denying 

Highland’s cross-motion. The circuit court held that WVU had properly refused to 

provide all withheld and redacted documents on the basis of: (1) the FOIA’s “internal 

memoranda” exemption found at West Virginia Code § 29B-1-4(a)(8); (2) an “academic 

freedom” privilege it incorporated into the FOIA’s “personal privacy” exemption found 

at West Virginia Code § 29B-1-4(a)(2); and/or (3) the FOIA requests were unduly 

burdensome. The circuit court did not address Highland’s motion for attorney fees and 

costs. 

On appeal to this Court, Highland raises eight assignments of error. 7 

Highland urges this Court to reverse the order of the circuit court and find that WVU 

6 We note the availability and scope of in camera review is within the discretion of 

the circuit court. Such review offers a check on the accuracy and honesty of the public 

body’s asserted exemptions. In camera review is conducted incident to, rather than as a 

substitute for, the Vaughn index. 

7 Highland contends: (1) the “internal memoranda” exemption under the FOIA 

does not apply to matters involving scientific research and publication of articles by state 

university professors; (2) there is no “academic freedom” exemption under the FOIA; (3) 

the guarantee of a “thorough and efficient system of free schools” under the West 

Virginia Constitution does not extend to institutions of higher education such as WVU, 

and cannot serve as the basis for an “academic freedom” exemption under the FOIA; (4) 

the “personal privacy” exemption under the FOIA cannot be applied when no personal or 

identifying information is sought or threatened to be released; (5) the circuit court failed 

to impose the burden of proof on WVU to establish the applicability of the cited FOIA 

exemptions; (6) WVU either waived its reliance on the “trade secret” exemption under 

the FOIA or failed to establish it; (7) the circuit court erred in reversing its earlier ruling 

and finding – nearly two years after this action was filed – that Highland’s FOIA requests 

(continued . . .) 

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must provide the documents requested below. Highland maintains it needs this 

information in order to evaluate the internal validity of the studies and the conclusions 

reached in Professor Hendryx’s articles. Highland also requests that it be granted its 

reasonable attorney fees and costs incurred in prosecuting this action, pursuant to West 

Virginia Code § 29B-1-7. 

II. STANDARD OF REVIEW 

“Summary judgment is the preferred method of resolving cases brought 

under FOIA.” Farley v. Worley, 215 W.Va. 412, 418, 599 S.E.2d 835, 841 (2004) 

(quoting Evans v. Office of Pers. Mgmt., 276 F.Supp.2d 34, 37 (D.D.C.2003)). An order 

granting summary judgment engenders plenary review. “A circuit court’s entry of 

summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 

451 S.E.2d 755 (1994). 

III. DISCUSSION 

The FOIA requires the release of public records upon request. See AT&T 

Commc’ns of W.Va., Inc. v. Pub. Serv. Comm’n, 188 W.Va. 250, 253, 423 S.E.2d 859, 

862 (1992) (“The general policy of th[e] act is to allow as many public records as 

possible to be made available to the public.” (footnote omitted)). 

were unduly burdensome; and (8) the circuit court should have awarded Highland 

attorney fees and costs as a successful FOIA litigant. For the sake of brevity, this Court 

has consolidated these assignments of error. 

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Pursuant to the FOIA, “[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 § 29B-1-4][.]” W.Va. Code, § 29B-1-3(1). A FOIA requester is not 

required to explain why a record should be disclosed or for what purpose a record is 

being requested. 8 The FOIA sets forth nineteen specific exemptions to its general 

disclosure provisions. See id. § 29B-1-4. 

This Court has made clear that the FOIA’s exemptions are to be strictly 

construed, while the FOIA’s disclosure provisions are to be liberally construed: 

“‘The disclosure provision of this State’s Freedom of 

Information Act, W.Va. Code, 29B-1-1 et seq., as amended, 

[is] to be liberally construed, and the exemptions to such Act 

are to be strictly construed. W.Va. Code, 29B-1-1.’ Syl. Pt. 4, 

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

Syl. pt. 5, Queen v. West Virginia University Hospitals, 179 

W.Va. 95, 365 S.E.2d 375 (1987). 

Syl. Pt. 1, Daily Gazette Co. v. W.Va. Dev. Office, 198 W.Va. 563, 482 S.E.2d 180 (1996) 

(“Daily Gazette I”). The burden of proof falls on the public body asserting the exemption 

to demonstrate that the public record should be protected from disclosure: “The party 

claiming exemption from the general disclosure requirement under West Virginia Code § 

8 An exception to this general rule occurs when a request pertains to documents 

falling under the FOIA’s “personal privacy” exemption, West Virginia Code § 29B-1­

4(a)(2). As discussed later in this opinion, we have crafted a two-pronged test to establish 

whether disclosure would result in an unwarranted invasion of privacy. See Hechler v. 

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

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29B-1-4 has the burden of showing the express applicability of such exemption to the 

material requested.”9 Syl. Pt. 7, Queen, 179 W.Va. at 95, 365 S.E.2d at 375. 

With this background to guide us, we now address the two FOIA 

exemptions at issue in this appeal, 10 whether the FOIA requests are unduly burdensome 

to WVU, and Highland’s request for attorney fees and costs. 

A. The FOIA’s Internal Memoranda Exemption 

The principal statutory provision at issue in this case, West Virginia Code § 

29B-1-4(a)(8) provides: “[i]nternal memoranda or letters received or prepared by any 

public body” are specifically exempt from disclosure under the FOIA. Through the 

development of case law, this FOIA exemption is commonly referred to as the 

“deliberative process” exemption and we use the terms interchangeably. The precise 

question presented here is an issue of first impression for this Court: whether a state 

9 We promptly dispose of Highland’s assignment of error that the circuit court 

failed to impose the burden of proof on WVU to establish the applicability of the FOIA 

exemptions it asserted. The appendix record reveals the circuit court properly held WVU 

to its burden: WVU produced multiple, detailed Vaughn indices (e.g., the index attached 

to the fourth production of documents was fifty-two pages); filed numerous briefs on the 

merits of its claimed exemptions; participated in oral arguments; and submitted 

documents for the circuit court’s in camera review. 

10 In Highland’s brief to this Court, it argues that WVU either waived its reliance 

on the “trade secret” exemption under FOIA or failed to establish it. Because WVU does 

not argue how the “trade secret” exemption may apply to any documents withheld in this 

case, we agree. See generally Addair v. Bryant, 168 W.Va. 306, 316, 284 S.E.2d 374, 382 

(1981) (holding this Court may deem as waived any issue not argued in party’s appellate 

brief). 

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university may invoke the “internal memoranda” exemption with respect to documents 

related to its professor’s scientific/academic research. The parties do not cite any 

precedent interpreting other states’ FOIAs directly on point. 

We begin our analysis with our leading case on this issue, Daily Gazette I. 

A newspaper made FOIA requests to the West Virginia Development Office seeking 

information involving the Development Office’s deliberations about whether to support a 

proposed industrial plant in Mason County, West Virginia. In response, the Development 

Office released certain documents but withheld others on the ground they were “internal 

memoranda” exempt from disclosure under the FOIA. 198 W.V. at 567, 482 S.E.2d at 

566. We set forth the criteria courts must apply when addressing the FOIA’s “internal 

memoranda” exemption in syllabus point four of Daily Gazette I: 

W.Va.Code, [§ 29B-1-4(a)(8)],11 which exempts from 

disclosure “internal memoranda or letters received or 

prepared by any public body” specifically exempts from 

disclosure only those written internal government 

communications consisting of advice, opinions and 

recommendations which reflect a public body’s deliberative, 

decision-making process; written advice, opinions and 

recommendations from one public body to another; and 

written advice, opinions and recommendations to a public 

body from outside consultants or experts obtained during the 

public body’s deliberative, decision-making process. W.Va. 

Code, [§ 29B-1-4(a)(8)] does not exempt from disclosure 

written communications between a public body and private 

persons or entities where such communications do not consist 

of advice, opinions or recommendations to the public body 

11 The syllabus point cites West Virginia Code § 29B-1-4(8) (1977), which 

contains the same language as West Virginia Code § 29B-1-4(a)(8) (2012). 

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from outside consultants or experts obtained during the public 

body’s deliberative, decision-making process. 

198 W.Va. at 575, 482 S.E.2d at 192 (footnote added). 

In Daily Gazette I, we recognized the relationship between West Virginia’s 

FOIA “internal memoranda” exemption and the federal FOIA counterpart, which 

exempts from public disclosure “inter-agency or intra-agency memorandums or letters 

which would not be available by law to a party other than an agency in litigation with the 

agency[.]” 5 U.S.C. § 552(b)(5) (1994). 198 W.Va. at 571, 482 S.E.2d 188. This federal 

FOIA exemption “preserves to government agencies ‘such recognized evidentiary 

privileges as the attorney-client privilege, the attorney work-product privilege, and the 

executive “deliberative process” privilege.’ Schell [v. U.S. Dep’t of Justice], 843 F.2d 

[933] at 939 [(6th Cir. 1988)] (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th 

Cir. 1980)).” Daily Gazette I, 198 W.Va. at 571, 482 S.E.2d at 188. We acknowledged 

the “deliberative process” privilege wording of the federal FOIA differs from that of 

West Virginia’s FOIA. Id. Nevertheless, we found federal precedent useful in construing 

our FOIA. 

In Daily Gazette I, we cited a seminal decision from the United States 

Supreme Court on the “deliberative process” privilege, N.L.R.B. v. Sears, Roebuck & Co., 

421 U.S. 132 (1975): 

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[t]he cases uniformly rest the [deliberative process] privilege 

on the policy of protecting the “decision making processes of 

government agencies,” . . . and focus on documents 

“reflecting advisory opinions, recommendations and 

deliberations comprising part of a process by which 

governmental decisions and policies are formulated.” . . . The 

point, plainly made in [S. Rep. No. 813, 89th Cong., 1st Sess. 9 

(1965)], is that the “frank discussion of legal or policy 

matters” in writing might be inhibited if the discussion were 

made public; and that the “decisions” and “policies 

formulated” would be the poorer as a result. 

Daily Gazette I, 198 W.Va. at 572, 482 S.E.2d at 189 (quoting Sears Roebuck, 421 U.S. 

at 150). 

The “deliberative process” privilege is designed to protect the quality of 

government decision-making by ensuring that it is not done “in a fishbowl.” EPA v. 

Mink, 410 U.S. 73, 87 (1973), superceded by statute, Freedom of Information Act, 5 

U.S.C. § 552(b)(1) (2002). This FOIA exemption encourages free discussion of 

alternatives, and “insulates against the chilling effect likely were officials to be judged 

not on the basis of their final decisions, but ‘for matters they considered before making 

up their minds.’” City of Virginia Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247, 

1253 (4th Cir. 1993) (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772-73 (D.C. 

Cir. 1978), overruled in part on other grounds, Crooker v. Bureau of Alcohol, Tobacco & 

Firearms, 670 F.2d 1051 (D.C. Cir. 1981)). “While transparency in government is an 

important democratic value, our society has often recognized that many important 

governmental functions operate best removed from the public glare.” Michael N. 

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Kennedy, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process 

Privilege, 99 Nw. U. L. Rev. 1769, 1770 (2005). Nevertheless, because of the FOIA’s 

strong policy favoring disclosure, this exemption should be construed “as narrowly as 

consistent with efficient Government operation.” Mink, 410 U.S. at 87 (quoting S. Rep. 

No. 813, 89th Cong., 1st Sess. 9 (1965)).12 We are mindful that the “deliberative process” 

FOIA exemption benefits the public and not the officials who assert it. See Kaiser 

Aluminum and Chem. Corp. v. U.S., 157 F.Supp. 939, 944 (Ct.Cl. 1958). 

To invoke the “internal memoranda” exemption successfully, the public 

body must meet two prerequisites: in “the context in which the materials are used,” the 

documents must be both predecisional and deliberative. Virginia Beach, 995 F.2d at 1253 

(quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C.Cir.1988)). 

Predecisional documents are “prepared in order to assist an agency decisionmaker in 

arriving at his decision.” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 

168, 184 (1975). Deliberative material “reflects the give-and-take of the consultative 

process,” by revealing the manner in which the agency evaluates possible alternative 

policies or outcomes. Virginia Beach, 995 F.2d at 1253 (citing Coastal States Gas Corp. 

v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.Cir. 1980)). 

12 Evidence of government misconduct, crime, and fraud bars the application of 

the “deliberative process” exemption. See In re Sealed Case, 121 F.3d 729, 738 (D.C.Cir. 

1997) (“[W]here there is reason to believe the documents sought may shed light on 

government misconduct, the privilege is routinely denied, on the grounds that shielding 

internal government deliberations in this context does not serve the public’s interest in 

honest, effective government.” (internal quotation marks omitted)). 

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WVU argues the FOIA’s “internal memoranda” exemption justifies its 

decision to withhold 760 documents. A research scientist at a public college or university 

is subject to FOIA because he or she is employed by a public body. Therefore, WVU 

maintains he or she must be equally and congruently entitled to the protection of this 

FOIA exemption. For these public body employees, the public function they are hired to 

perform is the research and publication of scholarly articles. WVU contends the 

“deliberations” they undertake and the “decisions” the professors make include the final 

publication of their research efforts. A public university or college’s “policy” is to 

nurture, support, and publish academic research on areas of public concern; its mission is 

fulfilled when the article is published. Therefore, WVU maintains that if the deliberative 

processes of its researchers are open for public inspection, WVU will be unable to fulfill 

its mission. 

In opposition, Highland argues this FOIA exemption does not apply 

because Professor Hendryx was not engaged in policy making on behalf of WVU when 

preparing the subject articles. In fact, WVU has expressly disclaimed the notion that any 

research paper published by a WVU professor represents WVU’s position or policy.13 

Furthermore, Highland argues the publication of the articles at issue did not involve 

policy making or a deliberative process within the meaning of this FOIA exemption. 

13 In 2011, WVU released the following position statement: “The findings of any 

particular research project do not reflect, nor should they, any particular opinion or 

position of the University itself.” 

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Highland relies on a narrow reading of Ethyl Corp. v. Environmental Protection Agency, 

25 F.3d 1241 (4th Cir. 1994), wherein the Fourth Circuit Court of Appeals held the 

“deliberative process” exemption only allows for the withholding of documents that 

“bear on the formulation or exercise of policy-oriented judgment.” Id. at 1248 (emphasis 

added), see also Coastal States, 617 F.2d at 866 (declaring federal FOIA “deliberative 

process” privilege protects “premature disclosure of proposed policies”) (emphasis 

added). 

Ultimately, Highland maintains WVU can never avail itself of the “internal 

memoranda” FOIA exemption because neither the WVU School of Medicine nor its 

Rural Health Research Center is a state agency; they do not regulate any activity, 

promulgate rules or policies that govern any entity’s conduct, or engage in any other type 

of governmental function. Highland acknowledges, however, that Professor Hendryx may 

have sought to influence the development of policy by federal and state agencies 

responsible for regulating surface coal mining, but he had no authority to directly develop 

or impose any such policies. 

We agree with Highland’s factual assessment that while WVU is a public 

body, it is not a state agency engaged in policy making. We further agree that Professor 

Hendryx did not formulate policy on behalf of WVU when he published the research 

articles. Nevertheless, we emphatically reject Highland’s legal argument that WVU may 

not invoke the “internal memoranda” exemption because that exemption covers only 

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documents reflecting agency policy making communications. There is a bulk of case law 

applying the federal FOIA’s “deliberative process” exemption in the context of 

administrative agency policy/decision making.14 At the same time, however, a plethora of 

federal FOIA cases also extend this exemption to public bodies engaged in activities 

other than agency policy making. “In its relatively short life, the deliberative process 

privilege has become one of the most predominate privileges exercised by the 

government and is now routinely asserted in a wide array of litigation challenging 

government decisionmaking.” Michael Ray Harris, Standing in the Way of Judicial 

Review: Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis U. 

L.J. 349, 350 (2009). 

14 The root of this trend may be explained by the fact the federal FOIA represented 

the culmination of years of congressional effort to amend the public information 

provisions of the Administrative Procedure Act of 1946. 

The FOIA replaced Section 3 of the Administrative 

Procedure Act (APA) of 1946, which ostensibly served as a 

public information provision to permit the public to gain 

access to federal records. However, the law was filled with 

loopholes that the government routinely exploited to withhold 

records. The main obstacle to public access under the APA 

was a requirement that record requesters demonstrate that the 

solicited information pertain directly to them. This restriction 

prevented journalists, writers, historians, lawyers, and others 

from gaining access to information held by the federal 

government. 

Martin E. Halstuk, When Is An Invasion of Privacy Unwarranted Under the FOIA? An 

Analysis of the Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy” 

Standards, 16 U.Fla.J.L. & Pub. Pol’y 361, 367 (2005) (footnotes omitted). 

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Having considered all of these competing arguments, we reject Highland’s 

contention that the “internal memoranda” exemption applies only to administrative 

agency policy making. A plain reading of our FOIA confirms that WVU has the stronger 

argument. In West Virginia, administrative agencies are not the only public bodies 

subject to the FOIA and its accompanying exemptions. West Virginia Code § 29B-1­

4(a)(8) exempts from disclosure “internal memoranda or letters received or prepared by 

any public body.” Id. (emphasis added). And the definition of “public body” under our 

FOIA is extensive: 

“Public body” means every state officer, agency, 

department, including the executive, legislative and judicial 

departments, division, bureau, board and commission; every 

county and city governing body, school district, special 

district, municipal corporation, and any board, department, 

commission, council or agency thereof; and any other body 

which is created by state or local authority or which is 

primarily funded by the state or local authority. 

Id. § 29B-1-2(3).15 The public body entities and their employees set forth above engage 

in an immensely diverse range of endeavors related to government service. Therefore, we 

expect their internal deliberations will necessarily address a variety of matters related to 

their state and/or local governmental responsibilities. 

15 The federal FOIA uses the term “agency,” not “public body.” See Pub. Citizen 

Health Research Grp. v. Dep’t of Health, Ed. & Welfare, 668 F.2d 537, 542 (D.C. Cir. 

1981) (“For purposes of the Freedom of Information Act the statute provides that ‘the 

term “agency” as defined in section 551(1) . . . includes any executive department, 

military department, Government corporation, Government controlled corporation, or 

other establishment in the executive branch of the Government (including the Executive 

Office of the President), or any independent regulatory agency.’ 5 U.S.C. § 552(e) 

(1976).”). 

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Consequently, in Daily Gazette I, we did not confine the “internal 

memoranda” exemption to deliberations preceding agency policy making. Instead, we 

held a public body may exempt from disclosure documents which reflect its “deliberative 

decision-making process.” 198 W.Va. at 575, 482 S.E.2d at 192 (emphasis added). We 

explained that courts must evaluate the “function and significance of the documents” to 

the public body’s decision-making process, including an explanation of “the nature of the 

decision-making authority vested in the office or person issuing the disputed 

documents[.]” Id.

16 

We hereby announce that West Virginia’s Freedom of Information Act, 

West Virginia Code § 29B-1-4(a)(8) (2012), exempts from disclosure “internal 

memoranda or letters received or prepared by any public body” as defined by West 

Virginia Code § 29B-1-2(3) (2012). The FOIA reflects our Legislature’s recognition that 

disclosure of public body communications reflecting deliberative processes on any 

16 Similarly, other state courts have applied their respective FOIA’s “deliberative 

process” exemption to decisions unrelated to agency policy making. For instance, 

documents generated by public employees charged with hiring decisions may be exempt 

from disclosure when they are both predecisional and deliberative. See Wilson v. Super. 

Ct., 51 Cal. App. 4th 1136, 1143 (Calif. Ct. of App. 2nd Dist. 1997) (applying California 

state’s FOIA, documents held exempt when their sole purpose was to aid Governor in 

selecting gubernatorial appointees, process which depends upon confidential, candid 

discussion of candidates’ professional competence, political views and private conduct). 

Other state courts have also applied this FOIA exemption to documents reflecting 

decision-making activities of judicial branch employees unrelated to agency policy 

making. See Commonwealth v. Vartan, 733 A.2d 1258, 1266 (Pa. 1999) (holding 

“deliberative process” privilege protected deliberations by members of Pennsylvania 

Supreme Court regarding decision to build new courthouse). 

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subject could have a chilling effect on future communications. Confidentiality of certain 

documents connected with a public body’s decision-making process ensures frank and 

open discussion among its employees, which in turn enhances the quality of their 

decisions. Considering the strong policy favoring disclosure of public documents, courts 

must construe this exemption narrowly as consistent with efficient state and local 

government operations. The key question in every case is whether the disclosure of 

documents would expose a public body’s decision-making process so as to discourage 

candid discussion and thereby undermine the public body’s ability to perform its 

functions. See Times Mirror Co. v. Super. Ct., 813 P.2d 240, 250 (Cal. 1991) (“In short, 

the courts’ focus . . . is less on the nature of the records sought and more on the effect of 

the records’ release.”). 

Having determined that WVU, as a public body, may assert the “internal 

memoranda” exemption, we now turn to the pivotal question of whether the withheld 

documents fall within this exemption. As discussed above, to invoke the “internal 

memoranda” exemption set forth in West Virginia Code § 29B-1-4(a)(8) (2012) 

successfully, the public body must show that in the context in which the materials are 

prepared or considered, the documents are both predecisional and deliberative to its 

decision-making process. Predecisional documents are prepared in order to assist a public 

body decisionmaker in arriving at his or her decision. Deliberative material reflects the 

give-and-take of the consultative process, by revealing the manner in which the public 

body evaluates possible alternatives relevant to the decisional process. 

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The relevant public body decision for purposes of applying the 

“deliberative process” exemption to these public records is not whether WVU adopted a 

position or policy regarding mountaintop coal removal’s health effects on state residents. 

Rather, when a FOIA requester seeks records surrounding or leading up to an agency 

publication, the relevant agency decision for purposes of applying the “deliberative 

process” exemption is the development and ultimate publication of the article. See United 

Am. Fin., Inc. v. Potter, 531 F.Supp.2d 29, 44 (D.D.C. 2008) (finding that relevant 

agency decision was agency’s publication of article where plaintiff’s FOIA request 

sought all supporting documents and drafts of documents relating to article), accord, 

Hooker v. U.S. Dep’t of Health and Human Servs., 887 F.Supp.2d 40, 57 (D.D.C. 2012). 

In Hooker, a parent of an autistic child filed a federal FOIA action against 

the Department of Health and Human Services (“HHS”) and the Centers for Disease 

Control (“CDC”), seeking disclosure of information, including all correspondence among 

researchers, regarding the publication of studies relating to a possible connection between 

a mercury-based compound used in vaccines and autism. Id. at 45. Like Highland sought 

in the instant case, Mr. Hooker wanted access to this information to refute the 

conclusions reached in the articles. Mr. Hooker contended the HHS and CDC 

consistently denied a relationship between the mercury-based compound and autism, “in 

the face of ‘a mounting body of compelling scientific literature’ that support[ed] the 

existence of such a relationship.” Id. The court rejected Mr. Hooker’s arguments and 

found the HHS and CDC properly applied the federal FOIA “deliberative process” 

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exemption to material that was deliberative in nature when withholding internal 

communications revealing the analysis underlying the draft manuscripts. Id. at 58. 

We find the court’s analysis in Hooker instructive. Thus, we limit our 

inquiry to whether a requested document, regardless of its nature, (1) was generated 

before the publication of the research article to which it relates, and if so, (2) whether it 

reflects Professor Hendryx’s deliberative, decision-making or thought process employed 

to arrive at the article’s conclusions and ultimate publication. “[T]he deliberative process 

exemption protects ‘recommendations, draft documents, proposals, suggestions, and 

other subjective documents which reflect the personal opinions of the writer rather than 

the policy of the agency.’” Virginia Beach, 995 F.2d at 1253 (quoting Coastal States, 617 

F.2d at 866). “Draft documents, by their very nature, are typically predecisional and 

deliberative.” Keeper of the Mountains Found. v. U.S. Dep’t of Justice, 514 F.Supp. 2d 

837, 854 (S.D. W.Va. 2007) (citations omitted). 

In Chemical Manufacturers Association v. Consumer Product Safety 

Commission, 600 F.Supp. 114 (D.D.C. 1984), the district court addressed this same issue 

and found documents qualified under the federal FOIA “deliberative process” exemption 

because they detailed an exchange of ideas among scientists regarding the agency’s study 

of a chemical used in the manufacture of toys. Id. at 119. The court ruled these scientific 

deliberations were part of the agency’s “give-and-take” and that disclosure of such 

deliberations would discourage open discussion among the agency scientists. Id. 

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Specifically, the court held that “scientists should be able to withhold nascent thoughts 

where disclosure would discourage the intellectual risk-taking so essential to technical 

progress.” 600 F.Supp. at 118. 

Not only is the parallel to the concerns raised in Hooker and Chemical 

Manufacturers evident, but Highland’s attempt to invade Professor Hendryx’s 

deliberative process is patent. First, considering the context in which the materials were 

used, WVU has shown that any document which reveals the analysis underlying 

Professor Hendryx’s articles is predecisional. In the state higher education academic 

setting, documents generated before the final publication of a scientific research article – 

all documents related to the initiation, preparation and publication of the articles – are by 

their very nature predecisional. Second, WVU has shown that any document, regardless 

of its nature, that exposes the give-and-take of the scientific research consultative 

process, by revealing the manner in which the researchers evaluate possible alternative 

outcomes, is deliberative. Because these drafts, data compilations 17 and analyses, 

17 Nearly all Professor Hendryx’s articles that were the subject of Highland’s 

FOIA requests were based on studies using secondary data only. However, the SelfReported Cancer Rates Study did involve the use of personal surveys of residents living 

in areas where mountaintop coal removal took place. We find WVU may withhold 

documents generated in data compilation because these documents could reveal the 

deliberative process. See Hooker, 887 F.Supp.2d at 58 (“‘The choice of what factual 

material . . . to include or remove during the drafting process is itself often part of the 

deliberative process, and thus is properly exempt under [the federal FOIA “deliberative 

process” exemption].’” (quoting ViroPharma, Inc. v. Dep’t of Health and Human Servs., 

839 F.Supp.2d 184 193 (D.D.C. 2012)); Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 

63, 67-70 (1974) (holding “deliberative process” privilege applied to summaries 

(continued . . .) 

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proposed edits, e-mails and other communications, and peer review comments and 

responses relate to the planning, preparation and editing necessary to produce a final 

published article, they are exempt from disclosure. We therefore find that, on the 

evidence before the circuit court at the summary judgment hearing,18 WVU successfully 

carried its burden of proving certain documents fell under the “internal memoranda” 

umbrella of the FOIA. 

Our review of the appendix record, however, reveals that WVU improperly 

claimed the “deliberative process” exemption to some documents that are post-decisional 

and/or non-deliberative.19 As the Supreme Court recognized in Sears, the purpose of the 

containing only factual material because documents revealed author’s evaluative 

judgment as to relative significance of facts and what facts he considered to be important 

or unimportant); Washington Research Project, Inc. v. Dep’t of Health, Educ. & Welfare, 

504 F.2d 238, 250-251 (D.C. Cir. 1974) (“[T]he judgmental element arises through the 

necessity to select and emphasize certain facts at the expense of others.”); Farmworkers 

Legal Servs. v. U.S. Dep’t of Labor, 639 F.Supp. 1368, 1373 (E.D.N.C. 1986) (“Because 

the list sought here is composed of selective fact, it . . . could reveal the deliberative 

process.”). 

18 This Court reviewed the same evidence. The parties submitted a Joint Appendix 

that contained five DVDs of the documents provided by WVU in response to Highland’s 

FOIA requests. WVU also submitted to this Court, under seal, the documents it submitted 

to the circuit court for in camera review. 

19 For instance, Document No. 03-0217 in the sample Vaughn index consists of an 

e-mail dated July 28, 2011, regarding a potential speaking engagement pertaining to the 

various articles at issue. We find WVU’s argument unconvincing that this e-mail should 

be protected from disclosure because it “reflect[s] these individuals’ thought processes 

and analyses that ultimately resulted in the final decision on how such matters concerning 

publicity should be handled on behalf of [WVU.]” To accept WVU’s argument here, we 

would be allowing the exception to swallow the rule. 

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deliberative process privilege is to protect the quality of an agency’s decision; revealing 

“communications made after the decision and designed to explain it” do not affect a 

decision’s quality. 421 U.S. at 152. 

Our holding today comports with American Tradition Institute v. Rector 

and Visitors of the University of Virginia, 756 S.E.2d 435 (Va. 2014) (“UVA”), where 

the Virginia Supreme Court was faced with facts analogous to the instant case. In UVA, a 

requester brought suit under Virginia’s FOIA against the University of Virginia seeking 

disclosure of documents produced or received by a former professor while working at the 

university. Id. at 437. The professor was a climate scientist and former professor whose 

scholarly work had “generated much scientific and political interest.” Id. Applying a 

FOIA exemption,20 the court upheld the university’s exclusion of the documents from 

production. Id. at 442. In UVA, “many noted scholars and academic administrators 

submitted affidavits attesting to the harmful impact disclosure would have in these 

circumstances.” Id. The court quoted an affidavit from John Simon, Vice President and 

20 Virginia Code § 2.2-3705.4(4) (West 2014) provides: 

Data, records or information of a proprietary nature 

produced or collected by or for faculty or staff of public 

institutions of higher education, other than the institutions’ 

financial or administrative records, in the conduct of or as a 

result of study or research on medical, scientific, technical or 

scholarly issues, whether sponsored by the institution alone or 

in conjunction with a governmental body or a private 

concern, where such data, records or information has not been 

publicly released, published, copyrighted or patented. 

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Provost of the university and former Vice-Provost of Duke University, addressing the 

concerns relevant to academia: 

If U.S. scientists at public institutions lose the ability 

to protect their communications with faculty at other 

institutions, their ability to collaborate will be gravely 

harmed. The result will be a loss of scientific and creative 

opportunities for faculty at institutions in states which have 

not established protections under state FOIAs for such 

communications. . . . For faculty at public institutions such as 

the University of Virginia, compelled disclosure of their 

unpublished thoughts, data, and personal scholarly 

communications would mean a fundamental disruption of the 

norms and expectations which have enabled research to 

flourish at the great public institutions for over a century. 

. . . 

I can state unequivocally that recruitment of faculty to 

an institution like the University of Virginia will be deeply 

harmed if such faculty must fear that their unpublished 

communications with the scientific collaborators and 

scholarly colleagues are subject to involuntary public 

disclosure. 

Id. at 442. 

The same reasoning applies with equal force here.21 When we focus on the 

resulting effect of the documents’ release, the resolution of this case is decidedly clear. 

21 The UVA case best illuminates the public policy facet of the issue before us. If 

West Virginia State colleges and universities cannot retain their researchers and scientists 

because the FOIA exposes them to an unfair intrusion into the scientific process, then the 

problem of operating in a “fishbowl” pales in comparison to the challenge of attracting 

and retaining highly qualified faculty. See generally Dianna G. Goldenson, FOIA 

Exemption Five: Will it Protect Government Scientists From Unfair Intrusion?, 29 B.C. 

Envtl. Aff. L. Rev. 311 (2002) (arguing federal FOIA “deliberative process” exemption 

should be recognized by courts as mode of protecting government scientists from unfair 

intrusion into scientific research). 

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The involuntary public disclosure of Professor Hendryx’s research documents would 

expose the decision-making process in such a way as to hinder candid discussion of 

WVU’s faculty and undermine WVU’s ability to perform its operations. We 

acknowledge that West Virginia’s FOIA does not have an exemption specifically 

applicable to state institutions of higher education like Virginia does. Nevertheless, we 

find that documents generated during higher education academic research may be legally 

protected from disclosure under West Virginia Code § 29B-1-4(a)(8), when the public 

body demonstrates the criteria outlined above are satisfied. Accordingly, we affirm the 

order of the circuit court insofar as it found WVU properly invoked the FOIA “internal 

memoranda” exemption to withhold certain documents. 

B. The FOIA’s Personal Privacy Exemption 

The FOIA’s “personal privacy” exemption permits the withholding of 

“information of a personal nature such as that kept in a personal, medical or similar 

file[.]” W.Va. Code § 29B-1-4(a)(2). In syllabus point six of Hechler v. Casey, 175 

W.Va. 434, 333 S.E.2d 799 (1985), we held: “The primary purpose of the invasion of 

privacy exemption to the Freedom of Information Act, W.Va.Code, [§ 29B-1-4(a)(2)],22 is 

to protect individuals from the injury and embarrassment that can result from the 

unnecessary disclosure of personal information.” Id. (footnote added). We employ a twopronged inquiry in deciding whether the public body has correctly withheld records under 

22 The syllabus point cites West Virginia Code § 29B-1-4(2) (1977), which 

contains the same language as West Virginia Code § 29B-1-4(a)(2) (2012). 

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this exemption. First, we determine whether the records in question are “personal,” 

“medical,” or “similar” files. Second, if so, we then balance or weigh the individual’s 

right of privacy against “the public’s right to know.” Hechler, 175 W.Va. at 444, 333 

S.E.2d at 810. 

Our analysis is consistent with case law interpreting the federal FOIA 

counterpart. The federal FOIA exemption provides that government can withhold 

“personnel and medical files and similar files the disclosure of which would constitute a 

clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2009). See 

Martin E. Halstuk, When Is An Invasion of Privacy Unwarranted Under the FOIA? An 

Analysis of the Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy” 

Standards, 16 U.Fla.J.L. & Pub. Pol’y 361, 371 (2005) (“When an agency makes a 

determination in a privacy-interests case[,] . . . it first must decide whether the requested 

records fall within the definition of ‘personnel,’ ‘medical,’ or ‘similar’ files. Second, the 

agency must balance the invasion of the individual’s personal privacy against the public’s 

interest in disclosure to determine whether the disclosure is justified.”) (footnotes 

omitted). 

Here, the circuit court concluded WVU properly withheld 740 documents 

on the basis of “academic freedom,” a concept which it incorporated into the FOIA’s 

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“personal privacy” exemption. 23 The circuit court conceded that its ruling was 

unprecedented. The circuit court’s holding rested upon three distinct considerations: (1) 

the First Amendment encompasses an “academic freedom” privilege that is 

“transcendental, applicable to both constitutional law and to FOIA”; (2) the guarantee set 

forth in the West Virginia Constitution that provides all citizens have a right to a 

thorough and efficient educational system; and (3) the determination that individual peer 

reviewers have an expectation of privacy that will be harmed by the release of their 

comments, even though such comments are submitted anonymously. 

We summarily reject the first two considerations outlined above. First, the 

West Virginia Freedom of Information Act does not provide an “academic freedom” 

exemption to its general disclosure provision, West Virginia Code § 29B-1-3 (2012). 

Although the First Amendment has been held to apply to protect colleges and universities 

against undue interference by the government,24 First Amendment jurisprudence does not 

23 The circuit court noted, however, that the “deliberative process” exemption 

would shield the same documents from disclosure. 

24 The primary case cited by WVU on this issue, Sweezy v. New Hampshire, 354 

U.S. 234 (1957), is not relevant to the instant case. Sweezy was decided on the basis of a 

denial of due process, in the form of an open-ended, unlimited investigation of the 

personal conduct and affairs of a faculty member. The Supreme Court in Sweezy dealt 

with a challenge to the use of a New Hampshire statute to hold a university professor in 

contempt for failing to answer questions posed to him (by the New Hampshire Attorney 

General, on behalf of the Legislature) concerning his belief in Communism and 

involvement with the Progressive Party. Id. at 242-244. This case did not involve the 

federal FOIA or any similar statute, nor did it involve the professor’s research 

activities/scientific publications. 

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support its application in the context of this case. Because the exemptions to the Act are 

required to be strictly construed, this Court declines to create an “academic freedom” 

exemption not specifically set forth in the FOIA. See Syl. Pt. 5, Queen, 179 W.Va. 95, 

365 S.E.2d 375. In Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996) we stated, 

“[i]t 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.” Id. at 546-47, 474 S.E.2d at 476-77. This Court has further cautioned that “[a] 

statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be 

modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer Advocate Div. v. Pub. 

Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989). Therefore, we find the broad 

principle of “academic freedom” would not justify WVU’s wholesale avoidance of the 

plain language of the FOIA. 25 

Second, the guarantee of a “thorough and efficient system of free schools” 

under the West Virginia Constitution does not extend to institutions of higher education 

such as WVU. See W.Va. Const. art. XII, § 1; Syl. Pt. 7, Randolph Co. Bd. of Educ. v. 

Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995) (“Whatever items are deemed necessary to 

25 Likewise, WVU wrongly suggests we should recognize an “academic freedom” 

exemption from FOIA to mirror “the justification for First Amendment protections 

afforded to journalists.” The principles that support the extension of First Amendment 

protections to journalists and their confidential sources have no application to the matter 

before us. 

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accomplish the goals of a school system and are in fact an integral fundamental part of 

the elementary and secondary education must be provided free of charge to all students in 

order to comply with the constitutional mandate of a free school system pursuant to 

Section 1 of Article XII of the West Virginia Constitution.”). Our Constitution does not 

establish a right to a higher education; the circuit court’s reliance on this principle was 

entirely misplaced. 

We now turn to the third consideration set forth above. The pertinent issue 

here is whether Highland’s request for “[a]ll comments by peer reviewers concerning 

drafts of the documents” constitute “information of a personal nature” within the meaning 

of the privacy exemption at West Virginia Code § 29B-1-4(a)(2). WVU asserts the peer 

reviewers’ privacy expectations would be violated by the release of their anonymous, 

confidential comments. The identity of peer reviewers is traditionally kept confidential in 

order to facilitate a candid exchange regarding a proposed article and its research. WVU 

maintains that to subject a reviewer’s comments to public scrutiny, even while keeping 

the identity of the reviewer withheld, would render a reviewer more reluctant to challenge 

traditional ideas and propose unconventional concepts. 

Highland responds that WVU’s argument “stands the notion of ‘personal’ 

information on its ear.” Applying the plain meaning of the word “personal,” Highland 

argues this exemption cannot apply to peer review comments, submitted anonymously to 

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an academic or scientific journal, that are not kept in a “personal, medical, or similar file” 

pertaining to the person who prepared them. We agree. 

This Court finds that WVU fails to meet the first prong of Hechler because 

the records in question are not “personal, medical or similar file[s]” that fall under the 

FOIA’s “personal privacy” exemption. W.Va. Code § 29B-1-4(a)(2). In fact, these 

anonymous peer review comments contain no personal identifying information at all. 

Therefore, the only case relied upon by WVU on this issue is distinguishable from the 

instant case. In Cook v. National Archives & Records Administration, 758 F.3d 168 (2nd 

Cir. 2014), the court held records pertaining to research requests made on behalf of 

former President and former Vice President for records from their own administration 

were “similar files” to “personnel” files exempt under the federal FOIA “personal 

privacy” exemption, because “they contain[ed] detailed records containing personal 

information identifiable to the former officials and their representatives.” Id. at 175. 

Because WVU fails to meet the first prong of Hechler, our analysis stops 

here; we need not proceed to address the second prong to balance or weigh the 

individual’s right of privacy against “the public’s right to know.” 175 W.Va. at 444, 333 

S.E.2d at 810. Accordingly, we reverse the order of the circuit court insofar as it found 

that WVU properly withheld documents on the basis of “academic freedom,” as it 

incorporated into the FOIA’s “personal privacy” exemption set forth in West Virginia 

Code § 29B-1-4(a)(2). 

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We do, however, agree with the circuit court’s finding that the same 

documents would fall under the FOIA “internal memoranda” exemption. As previously 

discussed, disclosure of the anonymous peer review comments submitted to Professor 

Hendryx, as he was drafting the articles, would undercut the decision-making process 

embodied by the FOIA’s exemption and discourage open discussion necessary for 

scientific/academic research. See Daily Gazette I, 198 W. Va. at 572, 482 S.E.2d at 189 

(stating that “in the spirit of further promoting frank and open discussions during an 

agency’s deliberative process, courts have interpreted the deliberative process privilege to 

include opinions and recommendations to a governmental agency by outside consultants 

and experts so long as such opinions or recommendations are obtained during the 

government agency’s deliberative, predecisional process”). 

C. Reasonableness of FOIA Request 

WVU initially moved to dismiss this action claiming the FOIA requests 

were unduly burdensome. The circuit court denied this motion and WVU engaged in 

document review and production. WVU produced 2,364 documents, totaling 11,090 

pages and redacted 119 of those documents; WVU withheld 772 documents and claimed 

the FOIA exemptions discussed above. By the time the circuit court granted summary 

judgment in favor of WVU, the university claimed to have reviewed over 40,000 

documents and identified over 200,000 potentially responsive documents. 

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In its March 19, 2014, order, the circuit court found “at this point,” WVU 

had demonstrated that the FOIA requests were unduly burdensome, and noted it was 

concerned about the time and expense that “would be required to complete the process[.]” 

WVU maintains the circuit court correctly found that the past two years of litigation and 

document production proved Highland’s FOIA requests were unduly burdensome. WVU 

argues that while the FOIA is designed to foster public transparency and accountability, 

the Act also reflects the Legislature’s “concern that information requests not become 

mechanisms to paralyze other necessary government functions.” Farley, 215 W.Va. at 

422 n.14, 599 S.E.2d at 845 n.14. 

Highland counters that the circuit court inexplicably failed to address its 

voluntary offer to limit or potentially eliminate the need for further document processing. 

In response to a letter from WVU’s counsel pointing out the anticipated cost to process 

that information, Highland’s counsel agreed that WVU could defer processing of those 

documents pending further rulings. In addition, Highland noted that if the documents that 

have been withheld thus far were provided, Highland may decide that it does not wish to 

receive any of the remaining documents. In accordance with this discussion, in its CrossMotion for Summary Judgment, Highland only requested the release of previouslywithheld documents as listed in the Vaughn indices, and that WVU be required to confer 

with Highland as to any additional documents. 

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To be sure, the FOIA requires a public body to conduct a reasonable search 

for responsive records. Further, 

[i]n 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. at 412, 599 S.E.2d at 835. 

However, the FOIA does not require a public body to conduct what 

amounts to an unreasonably burdensome search in response to a request. See Am. Fed’n 

of Gov’t Emps. v. U.S. Dep’t of Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990) 

(finding unreasonably burdensome FOIA request to locate “every chronological office 

file and correspondent file, internal and external, for every branch office, staff office 

[etc.]”); Assassination Archives & Research Ctr. v. C.I.A., 720 F.Supp. 217, 219 (D.D.C. 

1989) (recognizing public record laws are not designed to “reduce government agencies 

to full-time investigators on behalf of requesters.”), but see Pub. Citizen, Inc. v. Dep’t of 

Educ., 292 F.Supp.2d 1, 6 (D.D.C. 2003) (rejecting claim of undue burden when 

defendants “merely claim that [manually] searching . . . 25,000 paper files would be 

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‘costly and take many hours to complete,’ . . . [w]ithout more specification as to why a 

search certain to turn up responsive documents would be unduly burdensome”). 

When examining the burden on a public body to comply with a FOIA 

request, we note our FOIA provides “[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). This Court recently held in syllabus point two of King v. 

Nease, 233 W.Va. 252, 757 S.E.2d 782 (2014): “Pursuant to West Virginia Code § 29B1-3(5) (2012), a public body is vested with the authority and discretion to impose a search 

or retrieval fee in connection with a Freedom of Information Act request to provide 

public records provided that such fee is reasonable.”26 

Based on Highland’s proposal to limit the need for WVU to continue 

further document processing, we find the circuit court erred in finding the FOIA requests 

were unreasonably burdensome and dismissing the action at this stage of the litigation. 

The “FOIA requester is the ‘master’ of the FOIA request” and “FOIA requests are 

frequently clarified or modified even after a lawsuit is filed.” People for Am. Way Found. 

v. U.S. Dep’t of Justice, 451 F.Supp.2d 6, 12 (D.C.D.C. 2006). 

26 Our Legislature recently amended this portion of the FOIA. See House Bill 

2636, 2015 Leg. 82nd Sess. (W.Va. 2015) (effective June 12, 2015) (authorizing public 

body to establish fees reasonably calculated to reimburse actual costs in making 

reproductions of records; public body may not charge search or retrieval fee as part of 

costs associated with making reproduction of records). 

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Accordingly, we reverse the circuit court’s order insofar as it dismissed this 

action and remand the case for further proceedings. We find Highland should have the 

opportunity to taper its FOIA requests correspondent to our holdings in this case. 

Thereafter, the circuit court should revisit its decision of whether Highland’s FOIA 

requests are unduly burdensome. Applying this Court’s ruling, the circuit court will find 

that WVU’s document production obligations are dramatically reduced. If the circuit 

court does not dismiss this action, it should consider appointing a special commissioner 

pursuant to Rule 53 of the West Virginia Rules of Civil Procedure to review any 

documents withheld by WVU, in camera, to determine whether they are exempt from 

disclosure under the FOIA. Further, the parties are expected to confer regarding the fees 

Highland may incur with respect to any further document processing and production by 

WVU. 

D. Highland’s Request for Attorney Fees and Costs 

The FOIA provides that any person who is a successful FOIA litigant must 

be awarded attorney fees and costs. Specifically, West Virginia Code § 29B-1-7 provides: 

[a]ny person who is denied access to public records requested 

pursuant to this article and who successfully brings a suit 

filed pursuant to section five of this article shall be entitled to 

recover his or her attorney fees and court costs from the 

public body that denied him or her access to the records. 

In syllabus point seven of Daily Gazette Co. v. West Virginia Development Office, 206 

W.Va. 51, 521 S.E.2d 543 (1999) (hereinafter “Daily Gazette II”), we held: 

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For a person to have brought a suit for the disclosure 

of public records under the West Virginia Freedom of 

Information Act (FOIA), as permitted by W.Va. Code § 29B1-5 (1977) (Repl.Vol.1998), so as to entitle him/her to an 

award of attorney’s fees for “successfully” bringing such suit 

pursuant to W.Va. Code § 29B-1-7 (1992) (Repl.Vol.1998), 

he/she need not have prevailed on every argument he/she 

advanced during the FOIA proceedings or have received the 

full and complete disclosure of every public record he/she 

wished to inspect or examine. An award of attorney’s fees is 

proper even when some of the requested records are ordered 

to be disclosed while others are found to be exempt from 

disclosure or are released in redacted form. In the final 

analysis, a successful FOIA action, such as would warrant an 

award of attorney’s fees as authorized by W.Va. Code § 29B1-7, is one which has contributed to the defendant’s 

disclosure, whether voluntary or by order of court, of the 

public records originally denied the plaintiff. 

Highland contends the circuit court erred in neglecting to address its 

request for attorney fees and costs. While WVU disagrees, Highland argues it 

successfully brought this FOIA suit because WVU originally denied it access to any 

public records, and, WVU was forced to produce more than 2,200 documents in 

compliance with the circuit court’s November 7, 2012 order. WVU argues that the 

circuit court’s final ruling that Highland’s FOIA requests were unduly burdensome 

eliminates its claim for attorney fees and costs. 

“Typically, we have steadfastly held to the rule that we will not address a 

nonjurisdictional issue that has not been determined by the lower court.” State ex rel. 

Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va. 690, 699, 510 S.E.2d 764, 773 

(1998), accord Syl. Pt. 3, Voelker v. Frederick Bus. Props. Co., 195 W.Va. 246, 465 

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S.E.2d 246 (1995). Accordingly, we remand this case for further proceedings to take up 

Highland’s request for attorney fees and costs in accordance with the guidelines set forth 

in Daily Gazette II. The circuit court must determine if Highland instituted “a successful 

FOIA action,” that would warrant such an award as authorized by West Virginia Code § 

29B-1-7, and enter an order addressing this request. 

IV. CONCLUSION 

For the reasons set forth above, the March 19, 2014, order of the Circuit 

Court of Monongalia County is affirmed, in part; reversed, in part; and this action is 

remanded for further proceedings consistent with this opinion. 

Affirmed, in part; reversed, in part; and remanded. 

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