Ron King v. Richard J. and Lorinda J. Nease

No. 13-0603 – Ron King, “Fire Marshal/Code Official” for the City of Nitro, David A.
Casebolt, duly elected and serving Mayor for the City of Nitro, and the City of Nitro, a
municipal corporation and political subdivision of the State of West Virginia v. Richard
J. Nease and Lorinda J. Nease, husband and wife
FILED
April 10, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Benjamin, Justice, dissenting: OF WEST VIRGINIA
I am compelled to dissent to the majority’s legally unsound, illiberal, and
cramped construction of this State’s Freedom of Information Act.
The majority’s legal analysis of the statutory language at issue amounts to
nothing more than judicial embroidery and has no support in our law. According to W.
Va. Code § 29B-1-3(5), “[t]he public body may establish fees reasonably calculated to
reimburse it for its actual cost in making reproductions of such records.” This language
could not be clearer and is not susceptible to more than one reasonable construction. A
reasonable person would understand these words to mean that a public body may charge
a fee for the cost of copying records requested by a person under the Freedom of
Information Act. According to our law, “[w]here the language of a statute is clear and
without ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). The
majority simply should have applied this clear language to the “retrieval fee” at issue in
this case and concluded that the fee is not authorized by the Act.
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Instead, the majority opinion engages in a tortured analysis that manages to
disregard every applicable rule of statutory construction and violate both the letter and
spirit of the Freedom of Information Act. As noted above, the majority errs in its implicit
finding that the statutory language is ambiguous. The majority opinion further errs in
finding that the authority of a public body to charge a “retrieval fee” is encompassed in
the single word “fees.” In so finding, the majority opinion pays lip service to this Court’s
maxim “that the meaning of a word cannot be determined in isolation, but it must be
drawn from the context in which it is used,” HCCRA v. Boone Memorial Hosp., 196 W.
Va. 326, 338, 472 S.E.2d 411, 423 (1996) (citations omitted), and then proceeds to define
the word “fees” in isolation while choosing to ignore the context in which is it used.
The majority opinion makes a big to-do in ascertaining the dictionary
definition of “fees,” and then contrasts this definition with that of the word “costs” before
deciding that the term “fees” is intended to cover more than just mere duplication-related
costs. All of this fuss about definitions is unnecessary because the meaning of the word
“fees” is obvious from the context in which it is used. The statutory language plainly
indicates that a 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). The
term “fees” is not separate from the phrase “actual cost in making reproductions of such
records,” but rather it is limited by it. The statutory language does not provide that a
public body may establish fees. Instead, it provides that a public body may establish fees
reasonably calculated to reimburse it for its actual cost in making reproductions of such
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records. Therefore, contrary to the assertion in the majority opinion, the statutory
language provides that the term “fees” covers only duplication-related costs. In finding
that “fees” stands alone and in addition to the cost in making reproductions of such
records, the majority opinion reads the statute at issue in a way that is foreign both to the
law of this Court as well as any reasonable understanding of the English language.
In yet another abuse of this Court’s rules of statutory construction, the
majority opinion chides the circuit court for its reasoning that if the Legislature had
intended to authorize the imposition of retrieval fees it would have said so in the statute.
The majority opinion even includes a bizarre statement in footnote 13 that “the trial court
fails to appreciate that the converse is equally true: If the Legislature had wanted to
prohibit the potential imposition of search fees, a proscription against the use of such fees
could have been included in FOIA.” Of course, the majority opinion could not be more
wrong in this matter. This Court has held:
A statute which provides for a thing to be done in a
particular manner or by a prescribed person or tribunal
implies that it shall not be done otherwise or by a different
person or tribunal; and the maxim expressio unius est exclusio
alterius, the express mention of one thing implies the
exclusion of another, applies to such statute.
Syl. pt. 1, State ex rel. Battle v. Hereford, 148 W. Va. 97, 133 S.E.2d 86 (1963). When
this rule is applied to the statutory language at issue, I must conclude that because the
Legislature expressly authorized public bodies to charge a fee only for the cost of
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reproducing requested records, it did not authorize public bodies to charge any other
kinds of fees including retrieval and search fees.
Further, the majority opinion errs by construing the statutory language
inconsistent with the spirit and purpose of the Freedom of Information Act. In W. Va.
Code § 29B-1-1 (1977), the Legislature set forth the policy underlying the Freedom of
Information Act as follows:
Pursuant to the fundamental philosophy of the
American constitutional form of representative government
which holds to the principle that government is the servant of
the people, and not the master of them, it is hereby declared
to be the public policy of the State of West Virginia that all
persons are, unless otherwise expressly provided by law,
entitled to full and complete information regarding the affairs
of government and the official acts of those who represent
them as public officials and employees. The people, in
delegating authority, do not give their public servants the
right to decide what is good for the people to know and what
is not good for them to know. The people insist on remaining
informed so that they may retain control over the instruments
of government they have created. To that end, the provisions
of this article shall be liberally construed with the view of
carrying out the above declaration of public policy.
While the majority opinion recognizes the mandate to construe the provisions of the Act
liberally, it blithely avows that the mandate is not relevant in this case because “no
disclosure-related provision was at issue in this case.” This is incorrect. The amount that
a public body may charge for the production of records directly affects the disclosure of
records. This is due to the fact that the amount charged for the production of records is
inversely related to how many people will file requests for the production of records and,
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therefore, how many records ultimately will be disclosed. Prior to the majority opinion, a
person who could not afford to pay a fee for the cost of reproducing requested records
could go to the government office where the records are held and view the records at no
charge. As a result of the majority opinion, this is no longer true. I predict that most or all
public bodies soon will charge a retrieval or search fee for producing records under the
Freedom of Information Act, and that some people who desire to request certain records
will be prohibited from doing so because of their inability to pay the retrieval or search
fee. When the transparency of a government is lost, can the legitimacy the public holds
for such a government be far behind?
In sum, the majority opinion is more than just a frontal assault on reason
and sound legal analysis. It is also a step backward from the modern trend to make
government more open and accessible to those it purportedly serves. Essentially, the
majority opinion has a chilling effect on citizens who desire access to government
records in order to become informed of the workings of their government. It also
provides a way for overworked and underpaid public employees to discourage requests
under the Freedom of Information Act by imposing an ever-increasing “reasonable” fee
on all such requests. Therefore, for the reasons stated above, I dissent.
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