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Committee Substitute House Bill 2224 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2021 regular session

Committee Substitute

for

House Bill 2224

By Delegate Linville

[Originating in the Committee on the Judiciary; reported March 26, 2021]


 

A BILL to amend and reenact §29B-1-2, §29B-1-3, and §29B-1-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §29B-1-3b; providing for definitions of electronic records; providing that a public agency may respond to a request for documents with an anticipated time frame the requestor may expect to receive documents; providing that electronic records are more cumbersome for public agencies to review for public information; providing that a public agency may establish a fee schedule for production of electronic records; providing criteria to establish a fee schedule; providing for criteria for a public agency to deny a request for documentation; providing an exemption for Sensitive Security Information; and providing for exemption of disclosure of personally identifiable information under certain circumstances.

Be it enacted by the Legislature of West Virginia:


CHAPTER 29B. FREEDOM OF INFORMATION.


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) “Electronic record” means a public record that is produced, prepared, stored, or received by a computer or other electronic device. Examples of electronic records include, but are not limited to, email messages, wordprocessed documents, electronic spreadsheets, audio and video recordings, digital images, and databases.

(3) “Law-enforcement officer” shall have the same definition as this term is defined in §30-29-1 of this code: Provided, That for purposes of this article, “law-enforcement officer” shall additionally include those individuals defined as “chief executive” in §30-29-1 of this code.

 (4) “Person” includes any natural person, corporation, partnership, firm or association.

 (5) “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.

 (6) “Public record” includes any writing containing information 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.

 (7) “Writing” includes any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.

§29B-1-3. Inspection and copying of public record; requests of Freedom of Information Act requests registry.


(a) Every person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by section four of this article.

(b) A request to inspect or copy any public record of a public body shall be made directly to the custodian of such public record.

(c) The custodian of any public records, unless otherwise expressly provided by statute, shall furnish proper and reasonable opportunities for inspection and examination of the records in his or her office and reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them. The custodian of the records may make reasonable rules and regulations necessary for the protection of the records and to prevent interference with the regular discharge of his or her duties. If the records requested exist in magnetic, electronic or computer form, the custodian of the records shall make copies available on magnetic or electronic media, if so requested.

(d) All requests for information must state with reasonable specificity the information sought. The custodian, upon demand for records made under this statute, shall as soon as is practicable but within a maximum of five days not including Saturdays, Sundays or legal holidays:

(1) Furnish copies of the requested information, or provide a response concerning the anticipated date and time at which he or she may expect to receive the records;

(2) Advise the person making the request of the time and place at which he or she may inspect and copy the materials; or

(3) Deny the request stating in writing the reasons for such denial. A denial shall indicate that the responsibility of the custodian of any public records or public body to produce the requested records or documents is at an end, and shall afford the person requesting them the opportunity to institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.

(e) The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records. A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.

(f) The Secretary of State shall maintain an electronic data base of notices of requests as required by section three-a of this article. The database shall be made available to the public via the Internet and shall list each freedom of information request received and the outcome of the request. The Secretary of State shall provide on the website a form for use by a public body to report the results of the freedom of information request, providing the nature of the request and the public body’s response thereto, whether the request was granted, and if not, the exemption asserted under section four of this article to deny the request.

§29B-1-3b. Electronic records.


(a) The Legislature finds and declares that the rise in the use of electronic records in the conduct of government work has dramatically increased the number of public records that are subject to disclosure under this chapter. The Legislature further recognizes that electronic records, although necessarily and appropriately provided in response to a request to ensure that the government remains accountable to the public, frequently contain information that is exempt from disclosure, and therefore require a significant amount of time to review and prepare for disclosure to the public. Further, the Legislature recognizes that reviewing these electronic records is an added burden on state agencies and that, although public disclosure remains a priority, public disclosure should be completed in a way that protects exempt information and ensures that government is not unduly burdened by overly broad and unduly burdensome requests.

(b) Notwithstanding the provisions of §29B-1-3(e) of this code to the contrary, a public body may establish a fee schedule for the production of electronic documents, subject to the following criteria:

(1) The public body shall establish a minimum number of electronic documents to be provided to a requesting person free of charge; and

(2) The cost of producing electronic records for disclosures shall be no more than 50 percent of the cost of providing electronic copies of records.

(c) A public body may communicate with the requesting party in order to narrow the scope of a request that is determined to be overly broad or unduly burdensome as initially presented.

(d) A public body may deny a request seeking electronic records if:

(1) The person making the request refuses to narrow the request or otherwise engage with the public body to narrow the scope of the request; or

(2) The public body determines that the request is being made to harass the public body or another individual.

§29B-1-4. Exemptions.


(a) There is a presumption of public accessibility to all public records, subject only to the following categories of information which are specifically exempt from disclosure under 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 or other personally identifiable information, if the public disclosure of the information would constitute an unreasonable invasion of privacy, either alone or in connection with other disclosed information, unless the public interest by clear and convincing evidence requires disclosure in this particular instance: Provided, That this article does not preclude an individual from inspecting or copying his or her own personal, medical, or similar file: Provided further, That this article does not preclude disclosure of information required to be submitted by any entity under the West Virginia Jobs Act;

(3) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination;

(4) (A) 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;

(B) Records identifying motor vehicles used, and the agencies using them, for undercover investigation activities conducted by state law-enforcement agencies or other agencies that are authorized by this code to use undercover or unmarked vehicles;

(5) Information specifically exempted from disclosure by state or federal 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 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;

(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 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;

(19) Records of the Division of Corrections and Rehabilitation, Regional Jail and Correctional Facility Authority, and the Division of Juvenile Services relating to design of corrections, jail and detention facilities owned or operated by the agency, and the policy directives and operational procedures of personnel relating to the safe and secure management of inmates or residents, that if released, could be used by an inmate or resident to escape a facility, or to cause injury to another inmate, resident, or to facility personnel;

(20) Information related to applications under §61-7-4 of this code, including applications, supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit: Provided, That information in the aggregate that does not identify any permit holder other than by county or municipality is not exempted: Provided, however, That information or other records exempted under this subdivision may be disclosed to a law-enforcement agency or officer: (i) To determine the validity of a permit, (ii) to assist in a criminal investigation or prosecution, or (iii) for other lawful law-enforcement purposes;

(21) Personal information of law-enforcement officers maintained by the public body in the ordinary course of the employer-employee relationship. As used in this paragraph, “personal information” means a law-enforcement officer’s social security number, health information, home address, personal address, personal telephone numbers, and personal email addresses and those of his or her spouse, parents, and children as well as the names of the law-enforcement officer’s spouse, parents, and children; and

(22) Information provided by a person when he or she elects to remain anonymous after winning a draw game prize, pursuant to §29-22-15a of this code; and

(23) Sensitive Security Information as defined by 49 C.F.R. §1520.

(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) The provisions of subdivisions (9) through (16), inclusive, subsection (a) of this section 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 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 define “electronic record”; to add language regarding furnishing copies of requested information; to establish rules for electronic records; and to add language regarding sensitive security information.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

 

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