H. B. 4476
(By Delegates Armstead, Border, Rowan, Cowles,
Overington, Kump, Anderson, Hamilton,
Azinger, Householder and Ellem.)
[Introduced February 9, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §29B-1-4 of the Code of West Virginia, 1931, as amended, relating to exemptions from the Freedom of Information Act.
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.
(a) All documents maintained by any agency or department of the State of West Virginia are public records and there is a presumption of accessibility to the records by the public unless they are expressly excluded under other provisions of this code or fall within 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; the agency shall, at the conclusion of any investigation resulting in a criminal charge, prepare a full report of the investigation; and unless the agency determines that disclosure of that report would hinder prosecution of those criminal actions or any other ongoing investigation, the report is subject to disclosure;
(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 a terrorist act which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity.
(d) Any agency that denies access to records pursuant to an exemption set forth in this section, shall file with the Secretary of State, for inclusion in a publicly accessible publication or resource, a detailed explanation of the information requested and the reasons for the denial of the access, with the specific exemptions claimed duly noted in the filing.
NOTE: The purpose of this bill is to clarify language relating to which materials are due exemptions from discovery under a Freedom of Information Act request.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.