Introduced Version
House Bill 2884 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2884
(By Delegates Armstead, Kump, A. Evans, Romine,
D. Evans, Cowles, Walters, Espinosa, Shott,
J. Nelson and McCuskey)
[Introduced March 8, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §29B-1-2 and §29B-1-4 of the Code of
West Virginia, 1931, as amended, all relating to
the Freedom
of Information Act; redefining the term "public record"; and
limiting the exemption for internal memoranda or letters
received or prepared by any public body.
Be it enacted by the Legislature of West Virginia:
That §29B-1-2 and §29B-1-4 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. PUBLIC RECORDS.
§29B-1-2. Definitions.
As used in this article:
(1) "Custodian" means the elected or appointed official
charged with administering a public body.
(2) "Person" includes any natural person, corporation,
partnership, firm or association.
(3) "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.
(4) "Public record" includes any writing containing
information relating prepared or received by a public body, the
content or context of which, judged either by content or context
relates
to the conduct of the public's business. prepared, owned
and retained by a public body.
(5) "Writing" includes any books, papers, maps, photographs,
cards, tapes, recordings or other documentary materials regardless
of physical form or characteristics.
§29B-1-4. Exemptions.
(a) There is a presumption of public accessibility to all
public records subject only to exemptions of the following
categories of information which are specifically exempt from
disclosure under the provisions of this article:
(1) Trade secrets, as used in this section, which may include,
but are not limited to, any formula, plan pattern, process, tool,
mechanism, compound, procedure, production data or compilation of information which is not patented which is known only to certain
individuals within a commercial concern who are using it to
fabricate, produce or compound an article or trade or a service or
to locate minerals or other substances, having commercial value,
and which gives its users an opportunity to obtain business
advantage over competitors;
(2) Information of a personal nature such as that kept in a
personal, medical or similar file, if the public disclosure thereof
of the information would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance: Provided,
That nothing in this article shall be construed as precluding does
not preclude an individual from inspecting or copying his or her
own personal, medical or similar file;
(3) Test questions, scoring keys and other examination data
used to administer a licensing examination, examination for
employment or academic examination;
(4) Records of law-enforcement agencies that deal with the
detection and investigation of crime and the internal records and
notations of such law-enforcement agencies which are maintained for
internal use in matters relating to law enforcement;
(5) Information specifically exempted from disclosure by
statute;
(6) Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological,
paleontological and battlefield sites or constituting gifts to any
public body upon which the donor has attached restrictions on usage
or the handling of which could irreparably damage such the record,
archive, document or manuscript;
(7) Information contained in or related to examination,
operating or condition reports prepared by, or on behalf of, or for
the use of any agency responsible for the regulation or supervision
of financial institutions, except those reports which are by law
required to be published in newspapers;
(8) Internal memoranda or letters received or prepared by any
public body to the extent that the internal memoranda or letters
contain information which is specifically exempt from disclosure
under any of the other subdivisions of this section;
(9) Records assembled, prepared or maintained to prevent,
mitigate or respond to terrorist acts or the threat of terrorist
acts, the public disclosure of which threaten the public safety or
the public health;
(10) Those portions of records containing specific or unique
vulnerability assessments or specific or unique response plans,
data, databases and inventories of goods or materials collected or
assembled to respond to terrorist acts; and communication codes or
deployment plans of law enforcement or emergency response
personnel;
(11) Specific intelligence information and specific
investigative records dealing with terrorist acts or the threat of
a terrorist act shared by and between federal and international
law-enforcement agencies, state and local law enforcement and other
agencies within the Department of Military Affairs and Public
Safety;
(12) National security records classified under federal
executive order and not subject to public disclosure under federal
law that are shared by federal agencies and other records related
to national security briefings to assist state and local government
with domestic preparedness for acts of terrorism;
(13) Computing, telecommunications and network security
records, passwords, security codes or programs used to respond to
or plan against acts of terrorism which may be the subject of a
terrorist act;
(14) Security or disaster recovery plans, risk assessments,
tests or the results of those tests;
(15) Architectural or infrastructure designs, maps or other
records that show the location or layout of the facilities where
computing, telecommunications or network infrastructure used to
plan against or respond to terrorism are located or planned to be
located;
(16) Codes for facility security systems; or codes for secure
applications for such facilities referred to in subdivision (15) of this subsection;
(17) Specific engineering plans and descriptions of existing
public utility plants and equipment;
(18) Customer proprietary network information of other
telecommunications carriers, equipment manufacturers and individual
customers, consistent with 47 U.S.C. §222; and
(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 utilized used by an inmate or resident to escape
a facility, or to cause injury to another inmate, resident or to
facility personnel.
(b) As used in subdivisions (9) through (16), inclusive,
subsection (a) of this section, the term "terrorist act" means an
act that is likely to result in serious bodily injury or damage to
property or the environment and is intended to:
(1) Intimidate or coerce the civilian population;
(2) Influence the policy of a branch or level of government by
intimidation or coercion;
(3) Affect the conduct of a branch or level of government by
intimidation or coercion; or
(4) Retaliate against a branch or level of government for a
policy or conduct of the government.
(c) Nothing in The provisions of subdivisions (9) through
(16), inclusive, subsection (a) of this section should be construed
to do not make subject to the provisions of this chapter any
evidence of an immediate threat to public health or safety
unrelated to a terrorist act or the threat thereof of a terrorist
act which comes to the attention of a public entity in the course
of conducting a vulnerability assessment response or similar
activity.
NOTE: The purpose of this bill is to amend certain provisions
of the Freedom of Information Act. The bill amends the definition
of "public record" to include only records of a public body, the
content or context of which relates to the conduct of the public's
business. The bill also limits the exemption for internal memoranda
or letters of a public body to include only the content which
contains information specifically exempt under another exemption.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.