COMMITTEE SUBSTITUTE
FOR
H. B. 2418
(By Delegates Perry, Boggs, Morgan and Ellem)
(Originating in the House Committee on the Judiciary)
[February 27, 2009]
A BILL to amend and reenact §29B-1-4 of the Code of West Virginia,
1931, as amended, relating to granting exemptions from
disclosure under the Freedom of Information Act for certain
information retained by the Division of Corrections and the
Regional Jail Authority.
Be it enacted by the Legislature of West Virginia:
That §29B-1-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. PUBLIC RECORDS.
§29B-1-4. Exemptions.
(a) The following categories of information 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
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 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 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 such facilities referred to in subdivision (15) of
this subsection;
(17) Specific engineering plans and descriptions of existing
public utility plants and equipment;
and
(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 and the Regional
Jail Authority relating to design of corrections and jail
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, that if released, could be
utilized by an inmate to escape a corrections or jails facility, or
to cause injury to another inmate 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 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 which comes to the attention of
a public entity in the course of conducting a vulnerability
assessment response or similar activity.
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