DocketNumber： 34768
Citation Numbers： 688 S.E.2d 317, 224 W. Va. 708
Judges： Davis, Workman
Filed Date： 11/18/2009
Status： Precedential
Modified Date： 10/19/2024
The Associated Press, plaintiff below (hereinafter referred to as “the AP”), appeals from an order of the Circuit Court of Kanawha County denying part of the AP’s request for injunctive relief against Steven D. Canterbury, Administrative Director of the West Virginia Supreme Court of Appeals, defendant below (hereinafter referred to as “Mr. Canterbury”). Specifically, the AP alleges the circuit court committed error in ordering Mr. Canterbury to turn over only five of thirteen e-mail communications it sought under the West Virginia Freedom of Information Act (hereinafter referred to as “FOIA”).
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case are rather simple and straightforward. On February 29, 2008, the AP submitted a FOIA request to Mr. Canterbury.
In June of 2008, the circuit court held an evidentiary hearing. During the hearing, Mr. Canterbury testified to the existence of the electronic mail (hereinafter referred to as “e-mail”) communications that covered the period under the AP’s FOIA request. The circuit court ordered the e-mails be produced for an in camera review. Subsequent to its in camera review of the e-mails, the circuit court entered a final order on September 16, 2008. In that order, the circuit court found that five of the e-mails involved “Justice Maynard’s campaign for re-election [and] are public records subject to disclosure under FOIA.” However, the order further held “that the remaining [eight] e-mail communications are not public records as defined by FOIA. In no way do these [eight] e-mails contain information related to the ‘affairs of government’, Justice Maynard’s ‘official acts’ as a state officer, or the conduct of the public’s business.” Accordingly, the circuit court ordered Mr. Canterbury to disclose to the AP only the five e-mails which involved Justice Maynard’s campaign for re-election. From this order, the parties filed their appeals.
II.
STANDARD OF REVIEW
In the ease sub judice, we are called upon to review a final order by the circuit court that granted, in part, and denied, in part, the AP’s request for injunctive relief.
[u]nless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.
Syl. pt. 1, G Corp, Inc. v. MackJo, Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995) (quoting Syl. pt. 11, Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956)). More specifically, we have held that,
[i]n reviewing the exceptions to the findings of fact and conclusions of law supporting the granting [or denial] of [an] ... injunction, we will apply a three-pronged deferential standard of review. We review the final order granting [or denying] the ... injunction and the ultimate disposition under an abuse of discretion standard, we review the circuit court’s underlying factual findings under a clearly erroneous standard, and we review questions of law de novo.
Syl. pt. 1, State v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792 (1996). Accord Weaver v. Ritchie, 197 W.Va. 690, 693, 478 S.E.2d 363, 366 (1996). With these standards in mind, we turn to the merits of this case.
III.
DISCUSSION
This case presents the issue of whether thirteen e-mail communications sent by Jus
This Court has long held that “ ‘[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.’” Huffman v. Goals Coal Co., 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)). On the other hand, “[a] statute that is ambiguous must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). Additionally, as a general matter, “the words of a statute are to be given their ordinary and familiar significance and meaning[.]” Amick v. C & T Dev. Co., Inc., 187 W.Va. 115, 118, 416 S.E.2d 73, 76 (1992). “It is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).
A. In Camera Review Under FOIA
As we indicated earlier in this opinion, the trial court required Mr. Canterbury to produce the thirteen e-mails for an in camera review. This Court has not previously addressed the issue of producing documents for an in camera review in a FOIA proceeding. Prior FOIA decisions of this Court approved of requiring a government entity to produce a Vaughn index:
When a public body asserts that certain documents or portions of documents in its possession are exempt from disclosure under any of the exemptions contained in W. Va.Code, 29B-1-4 (2002 Repl. Vol.) (2003 Supp.), the public body must produce a Vaughn index named for Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va.Code, 29B-1-4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. The Vaughn index need not be so detailed that it compromises the privilege claimed. The public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt.
Syl. pt. 6, in part, Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004). The purpose of the Vaughn index is “ ‘to allow the courts to determine the validity of the Government’s claims without physically examining each document.’ ” Daily Gazette Co., Inc. v. West Virginia Dev. Office, 198 W.Va. 563, 574, 482 S.E.2d 180, 191 (1996) (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C.Cir.1980)). In the instant case, the record shows that Mr. Canterbury produced a Vaughn index for the trial court.
Nevertheless, the trial court went beyond reliance on the Vaughn index to make its decision. In this regard, the trial court required the actual production of the e-mails for an in camera review. The trial court’s order specifically noted that “[t]he Court is cognizant that in other cases in camera review may be burdensome, in both time and cost, however, given the definition of ‘public record’ and the facts of the case presented,
The authority for the trial court’s in camera review is found in W. Va.Code § 29B-l-5(2) (1977) (Repl. Vol. 2007). This statute states, in relevant part, that “[i]n any suit filed under [FOIA], the court has jurisdiction to ... order the production of any records improperly withheld from the person seeking disclosure____The court, on its own motion, may view the documents in controversy in camera before reaching a decisión!.]” In view of the plain and unambiguous language of this statute, we now hold that, in a proceeding seeking disclosure of public records under the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et seq., a trial court may sua sponte order the production of the records withheld and hold an in camera review of the records in order to decide whether any of the records are subject to disclosure under the Act. W. Va.Code § 29B-l-5(2) (1977) (Repl. Vol. 2007).
Although we acknowledge that a trial court has discretion to conduct an in camera review of requested FOIA documents, a trial court should “not resort to in camera review ‘as a matter of course.’ ” United America Fin., Inc. v. Potter, 531 F.Supp.2d 29, 40 n. 3 (D.D.C.2008). In other words,
a [trial] court should not undertake in camera review of withheld documents as a substitute for requiring an agency’s explanation of its claimed exemptions in accordance with Vaughn. The [trial] court should first offer the agency the opportunity to demonstrate, through [a Vaughn index], detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.
Spirko v. United States Postal Service, 147 F.3d 992, 997 (D.C.Cir.1998). See also Wick Communications Co. v. Montrose County Bd. of County Comm’rs, 81 P.3d 360, 366 (Colo.2003) (“As the requesting party in this ease did not show that a personal diary was likely a public record, the trial court is not authorized to conduct an in camera review of the defendant’s personal diary.”).
In the instant proceeding, the trial court held an evidentiary hearing prior to requiring Mr. Canterbury to produce the thirteen e-mails for in camera review. Insofar as the trial court articulated a valid reason for needing to actually review the e-mails, we find that the trial court did not abuse its discretion in requiring Mr. Canterbury to produce the e-mails for an in camera review.
B. Determining Whether the E-mails are Public Records Under FOIA
We begin by noting that the underlying purpose of FOIA has been set out by the Legislature 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.
W. Va.Code § 29B-1-1 (1977) (Repl. Vol. 2007).. This Court has held that “[t]he disclosure provisions of this State’s Freedom of Information Act, W. Va.Code, 29B-1-1 et seq., as amended, are to be liberally construed, and the exemptions to such Act are to be strictly construed. W. Va.Code, 29B-1-1 [1977].” Syl. pt. 4, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).
W. Va.Code § 29B-1-3 (1992) (Repl. Vol. 2007) provides that “[e]very person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by [§ 29B-1-4] of
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.
W. Va.Code § 29B-l-2(3) (1977) (Repl. Vol. 2007). It is clear that the definition of a “public body” under FOIA includes the judicial branch of State government.
The AP makes essentially two arguments as to why the thirteen e-mails sent by Justice Maynard to Mr. Blankenship are public records. First, the AP asserts that, under FOIA’s express definition of public records, the e-mails were public records. Mternatively, the AP argues the e-mails became public records because of the public interest context in which they were sought.
1. The e-mails are not public records under FOIA’s express definition of a public record. FOIA “generally permits disclosure of information retained by government agencies, i.e., public records.” Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 26(b)(1) (3d ed. 2008).
First, a “writing” is defined by FOIA as “any books, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.” W. Va.Code § 29B-l-2(5). It is clear from FOIA’s definition of “writing”, and we so hold, that the definition of a “wilting” contained in W. Va.Code § 29B-l-2(5) (1977) (Repl. Vol. 2007), of the West Virginia Freedom of Information Act includes an e-mail communication. Accord Tiberino v. Spokane County, Office of the Prosecuting Attorney, 103 Wash.App. 680, 13 P.3d 1104, 1108 (2000) (“Ms. Tiberino does not dispute that the email records are writings and that they are prepared, owned, used or retained by a state agency.”). Second, although FOIA does not
Based upon the plain language of FOIA’s definition of “public record,” we find this definition to be free from ambiguity. See Ogden Newspapers, Inc. v. City of Williamstown, 192 W.Va. 648, 650, 453 S.E.2d 631, 633 (1994) (“[W]e find the definition of ‘public record’ in [FOIA] to be plain and unambiguous.”). Under that definition, an e-mail communication or other writing is a public record only if it relates to the conduct of the public’s business, i.e., the official duties, responsibilities or obligations of a particular public body.
Turning to the issue at hand, this Court has not previously decided whether a personal e-mail communication by a public official or employee constitutes a public record as defined under FOIA However, the courts of other states have addressed the issue under their respective FOIA statute or its equivalent. As illustrated below, the majority of courts have held that personal e-mail communication by a public official or employee does not constitute a public record for purposes of disclosure under FOIA or its equivalent.
For example, the court in Griffis v. Pinal County, 215 Ariz. 1, 156 P.3d 418 (2007), addressed the issue of whether personal emails sent and received by a former county manager were public documents. In Griffis, a local A’izona newspaper obtained a trial court order requiring disclosure of e-mails sent and received by the former county manager during a specific time period. The trial court did so on the grounds that “everything that is on a computer of the Pinal County ... governmental entity is presumed to be a public record and that any records generated on a public computer are presumptively open to public inspection.” Griffis, 156 P.3d at 420 (internal quotations omitted). The ease ultimately reached the Arizona Supreme Court. That court held that a purely personal e-mail communication was not a public record subject to disclosure under that state’s FOIA statute. Griffis reasoned as follows:
The public records law requires all public officials to make and maintain records reasonably necessary to provide knowledge of all activities they undertake in the furtherance of their duties. That definition does not encompass documents of a purely private or personal nature. Instead, only those documents having a “substantial nexus” with a government agency’s activities qualify as public records. Determining a document’s status, therefore, requires a content-driven inquiry.
Because the nature and purpose of the document determine its status, mere possession of a document by a public officer or agency does not by itself make that document a public record, nor does expenditure of public funds in creating the document. To hold otherwise would create an absurd result: Every note made on government-owned paper, located in a government office, written with a government-owned pen, or composed on a government-owned computer would presumably be a public record. Under that analysis, a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employee’s office would be subject to disclosure. The public records law was never intended to encompass such documents; the purpose of the law is to open government activity to public scrutiny, not to disclose information about private citizens.
Although the public records law creates a strong presumption in favor of disclosure, that presumption applies only when a document first qualifies as a public record. To apply a presumption of disclosure when*717 a question exists as to the nature of the document is inappropriate: The initial inquiry must be whether the document is subject to the statute. The reason for this requirement is clear’: Disclosure of purely private documents does nothing to advance the purposes underlying the public records law. The contents of purely private documents shed no light on how the government is conducting its business or spending taxpayer money.
Griffis, 156 P.3d at 421-22 (internal quotations and citations omitted).
Similarly, in Denver Publishing Co. v. Board of County Commissioners of County of Arapahoe, 121 P.3d 190 (Colo.2005), a newspaper publishing company successfully obtained a trial court order that required disclosure of e-mail communication between a county recorder and assistant chief deputy under Colorado’s Open Records Act. The ease reached the Supreme Court of Colorado. The state high court held that e-mail communication that was purely personal was not a public record subject to disclosure under Colorado’s Open Records Act. The court reasoned as follows:
Given the plain language of ... the CORA statutory scheme as a whole, it is apparent that e-mail must meet the same requirements as any other record to be deemed a “public record”. To be a “public record”, an e-mail message must be for use in the performance of public functions or involve the receipt and expenditure of public funds. The simple possession, creation, or receipt of an e-mail record by a public official or employee is not dispositive as to whether the record is a “public record”. The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer equipment is insufficient to make the message a “public record”.
After considering the content of the email messages, as required by the statute, we conclude that not all of the e-mail messages at issue here have a demonstrable connection to the performance of public functions or involve the receipt or expenditure of public funds. It is apparent that a large portion of the e-mail messages instead contain only sexually-explieit exchanges between Baker and Sale. Based upon the content of the e-mails, it is clear they were sent in furtherance of their personal relationship and were not for use in the performance of the public functions of the Clerk and Recorder’s Office. These messages demonstrate very private ex-changes____The only discernable purpose of disclosing the content of these messages is to shed light on the extent of Baker and Sales’ fluency with sexually-explieit terminology and to satisfy the prurient interests of the press and the public.
Accordingly, not all of the e-mail messages at issue are public records under CORA.....
Given the court of appeals’ erroneous understanding of the “public records” definition and the error in the district court’s order finding that all of the messages were “public records”, we reverse the court of appeals’ interpretation and application of the “public records” definition and remand with the directions to return the ease to the district court for findings consistent with this opinion.
Denver Publ’g Co., 121 P.3d at 199-204.
In another such ease, State v. City of Clearwater, 863 So.2d 149 (Fla.2003), a newspaper company filed an action seeking an order compelling the City of Clearwater to release all e-mail sent from or received by two city employees who used government-owned computers for communication. The trial court rejected the request. An appellate court affirmed, but certified a question to the Florida Supreme Court. The certified question was as follows:
Whether all e-mails transmitted or received by public employees of a government agency are public records pursuant*718 to Section 119.011(1), Florida statutes (2000), and Article I, Section 24(a) of the Florida Constitution by virtue of their placement on a government-owned computer system.
Clearwater, 863 So.2d at 150. The high court in Clearwater answered the certified question in the negative as follows:
Times Publishing argues that the placement of e-mails on the City’s computer system makes the e-mails public records, regardless of their content or intended purpose____
... Times Publishing’s argument that the placement of e-mails on the City’s computer network automatically makes them public records is contrary to this Court’s decision in Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633 (Fla.1980). In Shevin, this Court rejected the First District’s conclusion that “section 119.011(1) applies to almost everything generated or received by a public agency.” Id. at 640. Although this Court acknowledged that the Legislature broadened the class of public records in enacting section 119.011(1), this Court concluded that the definition of the term “public records” limited “public information to those materials which constitute records — that is, materials that have been prepared with the intent of perpetuating or formalizing knowledge.” Id. Thus, it cannot merely be the placement of the e-mails on the City’s computer system that makes the e-mails public records. Rather, the e-mails must have been prepared “in connection with official agency business” and be “intended to perpetuate, communicate, or formalize knowledge of some type.” Id.
■.. [Pjrivate documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer. The determining factor is the nature of the record, not its physical location.
Based on the foregoing, we conclude that “personal” e-mails are not “made or received pursuant to law or ordinance or in connection with the transaction of official business” and, therefore, do not fall within the definition of public records in section 119.011(1) by virtue of their placement on a government-owned computer system. Accordingly, we answer the rephrased question in the negative and approve the Second District’s decision.
Clearwater, 863 So.2d at 151-55.
The Arkansas case of Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), involved a county comptroller who was arrested for embezzlement. Subsequent to the arrest, a local newspaper filed a complaint seeking disclosure of all e-mail communications between the county comptroller and a nongovernmental third-party that was stored on a county computer. The trial court ordered disclosure of all e-mails, and the county appealed to the Arkansas Supreme Court. On appeal, the county argued that the e-mails were not public documents subject to disclosure under the state’s FOIA statute. The high court in Pulaski addressed the issue as follows:
Pulaski County argues that when determining whether a document is a public record, we must look at the content of the document, rather than where it is located. Appellee agrees that we must look at the content, but also argues that we must look at the context, including “the circumstances surrounding the transmission of the e-mails, the location of the e-mails, and subsequent facts that have come to light regarding [the comptroller] in his position as a public official.”
Pulaski County argues that an in camera review is necessary in this case to determine the content of the e-mails. Specifically, Pulaski County asserts that the circuit court’s finding could not have been made without reviewing the e-mails in question. Further, it contends that because the circuit court did not conduct an in camera review, the e-mails were not included in the record, and therefore there is no evidence in the record to support the circuit court’s findings
Appellee responds, arguing that because there is no claim that the e-mails fall under*719 a FOIA exemption, an in camera review is not necessary----
We have held that the circuit court must review the relevant information in question to determine whether an FOIA exemption to disclosure applies____While the present case does not involve a claim that the emails fall under an FOIA exemption, we hold that an in camera review is necessary.
Comparing the nature and purpose of a document with an official’s or agency’s activities to determine whether the required nexus exists necessarily requires a fact-specific inquiry. To make that inquiry, while maintaining the privacy of personal, non-public documents, a court should perform an in camera review. A neutral court should be the final arbiter of what qualifies as a public record----
Rather than relying on Pulaski County or Appellee to make the determination of whether the documents are public, it is necessary to have a neutral court make this decision. Accordingly, we remand this case to the circuit court with instruction to conduct an in camera review to determine if these e-mails “constitute a record of the performance of official functions that are or should be carried out by a public official or employee” thereby making them “public records” pursuant to the FOIA.
Pulaski, 260 S.W.3d at 722-26.
Likewise, in State ex rel. Wilson-Simmons v. Lake County Sheriff's Department, 82 Ohio St.3d 37, 693 N.E.2d 789 (1998), an employee of a county sheriffs department filed a petition for a writ of mandamus with the Ohio Supreme Court, seeking to compel the sheriff to provide her access to an e-mail generated by fellow employees that allegedly contained racial slurs against her. The high court in Wilson-Simmons held that the email was not a public record and therefore the sheriff did not have to disclose the e-mail under the state’s Public Records Act. The opinion reasoned as follows:
The requested e-mail does not constitute “records” for purposes of R.C. 149.011(G) and 149.43. R.C. 149.43(A)(1) “does not define a ‘public record’ as any piece of paper on which a public officer writes something.” State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, 689. “To the extent that any item ... is not a ‘record,’ i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed.” State ex rel. Fant v. Enright, 66 Ohio St.3d [186] at 188, 610 N.E.2d [997] at 999 [ (1993) ]. If, as alleged by Wilson-Simmons, the requested e-mail consists of racist slurs against her by individual co-workers, then, although reprehensible, the e-mail does not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the sheriffs department. There is no evidence or allegation that the alleged racist e-mail documented sheriffs department policy or procedures. It was allegedly circulated only to a few co-workers and was not used to conduct sheriffs department business.
This conclusion, that the requested email is not a record for purposes of R.C. 149.43, is supported by both state and federal precedent. See Steffen, 67 Ohio St.3d at 439, 619 N.E.2d at 689 (“A trial judge’s personal handwritten notes made during the course of a trial are not public records.”), and eases cited at 67 Ohio St.3d at 440, 619 N.E.2d at 689; Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of Am. v. Voinovich (1995), 100 Ohio App.3d 372, 654 N.E.2d 139 (Governor’s personal calendars and appointment books did not constitute records subject to disclosure under R.C. 149.43 because they did not serve to document any official activities or functions.); Bur. of Natl. Affairs, Inc. v. United States Dept. of Justice (C.A.D.C.1984), 742 F.2d 1484, 1492 (“Where, as here, a document is created by an agency employee, consideration of whether and to what extent that employee used the document to conduct agency business is highly relevant for determining whether that document is an ‘agency record’ within the meaning of FOIA [the federal Freedom of Information Act].”); Gallant v. Natl. Labor Relations Bd. (C.A.D.C.1994), 26 F.3d 168, 172 (“[E]ven*720 though employing agency resources in the creation of the correspondence is a relevant factor in the agency record analysis, the utilization of agency resources in this ease is not as significant as the other factors employed in our precedents, which compel a conclusion that the ... correspondence was personal, rather than attributable to the agency.”).
Therefore, although the alleged racist email was created by public employees via a public office’s e-mail system, it was never used to conduct the business of the public office and did not constitute records for purposes of R.C. 149.011(G) and 149.43.
Wilson-Simmons, 693 N.E.2d at 792-93.
Lastly, in Brennan v. Giles County Board of Education, No. M2004-00998-COA-R3-CV, 2005 WL 1996625 (Tenn.Ct.App. Aug.18, 2005), the plaintiff filed an action seeking to have a county board of education disclose all “digital records of Internet activity, including e-mails sent and received, web sites visited and transmissions sent and received and the identity of any and all Internet Service Providers.” Brennan, 2005 WL 1996625, at *1. The trial court conducted an in camera review of the requested documents and determined that none of the documents constituted a public record for disclosure under the state’s Public Records Act. The plaintiff appealed arguing “that, by virtue of the fact that the requested documents were created during school hours and/or by virtue of the fact that the requested documents were created and/or stored on school owned computer equipment, these facts, per se, make them public records under the Act.” Brennan, 2005 WL 1996625, at *2. The Tennessee Court of Appeals disagreed with the plaintiff as follows:
[T]he Appellant herein interprets the Public Records Act very broadly and champions a reading whereby any citizen of Tennessee may gain access to any and all records created during work hours on computers owned and operated by governmental entities. However, when read in light of the applicable statutory definitions, it is clear that the legislature did not intend for all records to be available for public perusal ____
The language of T.C.A § 10-7-301(6) unambiguously states that, in order to be a public or state record and thereby subject to access under T.C.A. § 10-7-503, the document must be “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.” As in this case, when a question arises as to whether certain documents fall within the purview of the statutory definition, it is the role of the trial court, as the gatekeeper of the law, to make that determination.
When T.C.A. § 10-7-503 is read in conjunction with the relevant definition at T.C.A. § 10-7-301(6), it is clear that the legislature placed some limitation on those documents that may be accessed under the Public Records Act. By the plain language of the definition, this limitation involves the purpose behind the creation of the document (i.e. whether it was “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency”). However, the limitation does not, as the Appellant argues, rest upon an inquiry into the time (i.e. whether during business hours) or upon the place where the document was produced and/or stored (i.e. on school owned computers). It was, therefore, necessary for the trial court to perform its judicial function by viewing the requested documents in camera to determine whether these documents were “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.” For the trial court to allow the documents to be accessed under the Public Records Act just by the mere fact that they were made during business hours and/or on computers that were school-owned would be a violation of the clear intent of the legislature and, consequently, a dereliction of the most basic judicial duty.
Brennan, 2005 WL 1996625, at *2-3. Accord City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 714 (Tex.App.2009) (“The requested e-mails are not ‘public information’
In the instant case, the AP seeks to have this Court reject the majority position of nondisclosure of purely personal e-mail communication by a public officer or employee. Instead, the AP seeks adoption of the minority position taken by the court in Cowles Publishing Co. v. Kootenai County Board of County Commissioners, 144 Idaho 259, 159 P.3d 896 (2007). The decision in Cowles involved a request by a local newspaper publisher seeking access to e-mail correspondence between a manager of juvenile education and training court and her supervisor, the county prosecutor. At the time of the request, a highly publicized administrative investigation was taking place, involving financial discrepancies in the juvenile education and training court, as well as an alleged intimate relationship between the county prosecutor and the manager of juvenile education and training court. The trial court found that the e-mails were public records and ordered their disclosure. The case was appealed to the Idaho Supreme Court.
The initial inquiry made by the high court in Cowles was a determination of whether the e-mails constituted a public record under Idaho’s Public Records Act. The opinion set out the statutory definition of a public record as follows:
A public record “includes, but is not limited to, any writing containing information relating to the conduct or administration of the public’s business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.”
Cowles, 159 P.3d at 900 (emphasis added). The high court held that because of the language, “but is not limited to,” under the statutory definition of public record, “other records and writings may qualify even if they do not meet this definition.” Cowles, 159 P.3d at 900. As a result of Idaho’s broad statutory definition of public record, the high court in Cowles held that the e-mails constituted a public record.
The decision in Cowles justified the Court’s determination that the e-mails were public records, in part, based upon the fact that the county prosecutor had publicly defended the integrity of the manager of juvenile education and training court. As a result of the county prosecutor’s conduct, Cowles stated that “[wjhether he did so as her supervisor defending her job performance, or whether he did so because of an alleged inappropriate relationship is a public concern.” Cowles, 159 P.3d at 900. Further, Cowles held that “[i]t is not simply the fact that the emails were sent and received while the employees were at work ... that makes them a public record. Rather, it is their relation to legitimate public interest that makes them a public record.” Cowles, 159 P.3d at 901.
In the instant proceeding, the trial court adopted the position taken by the court in Cowles and rejected the majority position. The AP contends here, as it did below, that Idaho’s definition of a public record is consistent with our FOIA definition of a public record. The AP is simply wrong. Idaho’s definition of public record contains a provision, “but is not limited to,” that is not found in our FOIA definition.
We believe the majority position on e-mail communication by public officials or employees is consistent with our FOIA definition of a public record. Therefore, we hold that a “public record” under the West Virginia Freedom of Information Act (FOIA) is defined as “inelud[ing] any writing containing
Our holding is consistent with decisions by federal courts in federal FOIA cases. See Farley, 215 W.Va. at 420, 599 S.E.2d at 843 (“Previously we have looked to federal FOIA cases for guidance in interpreting the West Virginia Freedom of Information Act.”). Although we have been unable to find any federal court that has addressed the issue facing this Court in the context of e-mails, federal courts have addressed the specific issue of whether private documents created by a government official or employee were subject to disclosure under federal FOIA. A case on point is Gallant v. National Labor Relations Board, 26 F.3d 168 (D.C.Cir.1994).
In Gallant, a member of the National Labor Relations Board (hereinafter “the Board”) sent letters and faxes to a number of individuals in an attempt to secure her reappointment to the Board. The plaintiff in Gallant sought disclosure of those documents under the federal FOIA. The district court denied the request on the ground that the letters and faxes were private documents, not “agency records,” i.e., public documents. The plaintiff appealed. The Court of Appeals agreed with the district court based upon the following reasoning:
While [FOIA] itself does not indicate the types of documents that constitute “agency records” within the meaning of the Act, ease law makes clear that the term “agency records” is not so broad as to include personal materials in an employee’s possession, even though the materials may be physically located at the agency____
... [I]n eases ... where documents are created by an agency employee and located within the agency, use of the document becomes more important in determining the status of the document under FOIA. In such eases an agency employee’s creation of a document can be attributed to an agency depending on the purpose for which the document was created, the actual use of the document, and the extent to which the creator of the document and other employees acting within the scope of their employment relied upon the document to carry out the business of the agency. Thus, [the plaintiffs] suggested test that employing agency resources, standing alone, is sufficient to render a document an “agency record,” is inconsistent with governing precedent.
On the facts before the district, court at summary judgment, we reach the same conclusion that court did. The ... letters were “personal records” of [the Board ■member], and not “agency records” within the meaning of the FOIA. Nothing in the record here indicates that [the Board member] created the correspondence with anything other than the purely personal objective of retaining her job. The actual use of the correspondence, and [the Board member] and other employees’ lack of reliance on the correspondence to carry out the business of the agency, also supports the district court’s finding that the documents were not agency records____
Gallant, 26 F.3d at 171-72 (internal quotation marks and citations omitted).
In another similar, and relatively recent case, Bloomberg, L.P. v. United States Securities and Exchange Commission, 357 F.Supp.2d 156 (D.D.C.2004), a media company, Bloomberg, L.P., filed an action in a federal district court seeking disclosure of certain documents from the office of the United States Securities and Exchange Commission (hereinafter “the SEC”). Specifically, the plaintiff sought the SEC chairman’s calendar, telephone logs, and telephone message slips, as well as notes by the chairman’s chief of staff. The district court held that all the documents sought were personal and not subject to disclosure as agency records under the federal FOIA. The district court addressed the request for each document as follows:
Bloomberg argues that Chairman Pitt’s calendar is an “agency record” subject to*723 FOIA disclosure requirements because under the totality of the circumstances ... the calendar was relied on by agency personnel and was integrated into the agency’s record system when it was maintained on the computer system and backed-up every thirty-days on the server. The Court disagrees and, for the following reasons, finds that Chairman Pitt’s calendar is a personal record----
First, ... only Chairman Pitt’s personal assistant, his Chief of Staff, and Deputy Chief of Staff accessed the calendar, and then only to determine his availability. Second, ... Chairman Pitt’s calendar was created for his own personal use, not for the purpose of creating an official record of his schedule. Furthermore, that the calendar includes both personal and business appointments does not preclude a finding that the document is a personal record. Finally, Bloomberg has argued that because the calendar was maintained on the agency computer system and backed-up every thirty days, the calendar was integrated into the agency record system. However, ... the D.C. Circuit has previously held that employing agency resources, standing alone, is not sufficient to render a document an agency record. Accordingly, the Court does not find that the fact that the calendar was maintained on the agency computer system establishes that it was integrated into the agency’s records.
The Court thus finds that Chairman Pitt’s calendar is not an “agency record” subject to the Court’s jurisdiction under FOIA....
Chairman Pitt’s telephone logs ... have been withheld by the SEC as personal records. According to the SEC, the telephone logs were maintained for the Chairman’s personal convenience, to remind him of calls that had not been returned, or of calls that he wanted to make. The daily message logs included numerous records of calls from family members and personal friends on a range of issues unrelated to the business of the [SEC]____
Bloomberg argues that because the logs were maintained in electronic form using computer hardware and software and were archived every thirty days, they were integrated into the agency record-keeping system. Moreover, Bloomberg asserts that because the logs contain agency-related business and the Chairman’s assistant and Deputy Chief of Staff had access to the logs, they are agency records under FOIA____ For the following reasons, the Court finds Bloomberg’s arguments unpersuasive, and concludes that, much like Chairman Pitt’s calendar, the telephone logs are personal records.
First, the logs were created and maintained to remind him of calls to make or return, and did not serve as an official record of his telephone calls. Second, as was the case with his calendar, only the Chairman’s assistant and his two most senior staff had access to the telephone logs. There is no indication that these individuals relied on the telephone log in any significant way in the course of their duties. Third, that the log was maintained electronically on the agency’s computer system is not dispositive-as previously noted____ Accordingly, the Court finds that the totality of the circumstances support a finding that Chairman Pitt’s telephone logs are personal records that are not subject to the Court’s jurisdiction under FOIA.
... The SEC has withheld [telephone message slips] as personal records and describes them as logs and messages maintained for [the Chairman’s] personal use and convenience, so that he could ensure that he responded to any call (whether family, social or business related)____
Bloomberg argues that the message slips are “agency records” under FOIA because they were created or maintained “entirely with [SEC] resources” and they contained information related to agency business....
... [T]he Court finds that the books of telephone message slips and the individual message slip are not “agency records.” These documents were intended only for*724 Chairman Pitt’s personal use and were not circulated to anyone other than him and his assistant, who wrote them. Moreover, they were not kept with any official agency records....
The final document withheld by the SEC as a personal record [are] ... notes of Mai’k Radke, Chairman Pitt’s Chief of Staff, regarding an April 26, 2002 meeting with Eugene O’Kelly, Chief Executive of KPMG. Radke attests that these were “personal notes” he took during the meeting, and that the notes were not circulated to anyone in the Office of the Chairman or otherwise. The notes were kept with his private files in his office and no one else had access to them____
In response, Bloomberg argues that the notes were created by Radke in the course of his official duties as Chief of Staff and they appear to be the only record of Chairman Pitt’s conversation with the head of [the] accounting firm ..., which Bloom-berg asserts was the subject of considerable press coverage. In sum, it is Bloom-berg’s contention that disclosure of the notes of Chairman Pitt’s meeting with Mr. O’Kelly would undoubtedly serve to open agency action to the light of public scrutiny.
Bloomberg’s arguments regarding the public interest in these notes sidestep the primary issue before the Courtwhether such notes are, in fact, “agency records” that are subject to the disclosure requirements of FOIA. The Court concludes that they are not----The notes were created for Radke’s own personal reference, were not relied upon by other agency personnel, were not incorporated in agency files, and were not under the agency’s control. Even Radke apparently did not rely on these notes for any purpose. FOIA does not sweep into [its] reach personal papers that may relate to an employee’s work ... but which the individual does not rely upon to perform his or her duties. Accordingly, the Court concludes that Mark Radke’s notes of the April 26, 2002 [meeting] are not “agency records” subject to its jurisdiction under FOIA.
Bloomberg, 357 F.Supp.2d at 164-67 (internal quotations and citations omitted). See also Sibille v. Federal Reserve Bank of New York, 770 F.Supp. 134 (S.D.N.Y.1991) (handwritten notes of meetings and telephone conversations were not agency records under FOIA).
In view of our holding in the instant ease, and the foregoing authorities, we conclude that none of the thirteen e-mails at issue herein constituted a public record under FOIA. None of the e-mail’s contents involved the official duties, responsibilities or obligations of Justice Maynard as a duly-elected member of this Court. Twelve of the e-mails simply provided URL
2. The e-mails were not public records because of the public interest context in which they were sought. The AP has further argued that a determination of whether the e-mails are public records should also require an examination of the public interest “context” in which they were sought. In this regard, the AP asserts that the e-mails covered a period when there was gréat public interest in the relationship between Justice Maynard and Mr. Blankenship, as well as “enormous statewide and national public interest” in our judicial recusal proeedures. Insofar as the e-mails were sought during a time when there was public interest in those matters, the AP takes the position that the e-mails became public records for purposes of FOIA
This context-driven analysis advocated by the AP was adopted by the circuit court. In its order, the circuit court held “that both the content of the e-mails at issue and the context under which they were created are relevant to the determination of whether they contain information relating to the conduct of the public’s business.”
On appeal to this Court, the AP requests that we also adopt a context driven analysis to determine whether the subject e-mails should be disclosed. However, we are not persuaded by either the AP or the circuit court’s reliance on a document’s context as a determinative factor of a document’s status as a public record and conclude, instead, that the better approach, which is dictated by our statutory law and followed by a majority of “[o]ther states [that]
As previously indicated, POIA defines a public record as “any writing containing information relating to the conduct of the. public’s business, prepared, owned and retained by a public body.” W. Va.Code § 29B-1-2(4). This definition neither expressly nor implicitly makes a document a public record merely because of public interest in the record. For this Court to engage in the context-driven analysis used by the circuit court and urged by the AP, this Court would have to rewrite FOIA’s definition of a public record to include a context-driven analysis. Simply put, we are not at liberty to rewrite FOIA’s definition of a public record to include a context-driven analysis. We have held on a number of occasions that “[t]his court ‘cannot rewrite [a] statute so as to provide relief ... nor can we interpret the statute in a manner inconsistent with the plain meaning of the words.’” McVey v. Pritt, 218 W.Va. 537, 540-41, 625 S.E.2d 299, 302-03 (2005) (quoting VanKirk v. Young, 180 W.Va. 18, 20, 375 S.E.2d 196, 198 (1988)). Accord Dunlap v. Friedman’s, Inc., 213 W.Va. 394, 398, 582 S.E.2d 841, 845 (2003) (“[T]his Court cannot substitute its own judgment for that of the legislature and significantly rewrite the statute.”); State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994) (“Courts are not free to read into the language what is not there, but rather should apply the statute as written.”).
If FOIA’s definition of a public record is to include an examination of the record’s context by virtue of the public’s interest in the record, the Legislature must add such language to that definition. The Legislature has not done so. Consequently, we hold that a trial court’s determination of whether personal e-mail communication by a public official or employee is a public record, subject to disclosure under the West Virginia Freedom of Information Act, W. Va.Code § 29B-1-1, et séq., is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record.
Accordingly, we find that the circuit court was correct in refusing to release eight of the e-mails,
IV.
CONCLUSION
We find that none of the thirteen e-mails sought by the AP were public records under FOIA. Consequently, we affirm that part of the trial court’s order which denied the AP access to eight of the e-mails, but reverse that part of the order which required disclosure of the remaining five e-mails. This ease is remanded to the trial court for further disposition consistent with this opinion.
. See W. Va.Code § 29B-1-1, et seq.
. We wish to acknowledge the contributions from the briefs submitted by the Amici Curiae. An amicus curiae brief supporting Mr. Canterbury's position was filed by the West Virginia Judicial Association. An amicus curiae brief supporting the AP’s position was filed on behalf of The Reporters Committee for Freedom of the Press, The American Civil Liberties Union of West Virginia, The Association of Capitol Reporters and Editors, The Radio and Television News Directors Association, The Society of Professional Journalists, and The West Virginia Press Association. We value the participation of these organizations and the helpful insights their briefs lend to the parties’ arguments.
. The AP had submitted an earlier, broadly-worded, FOIA request on January 16, 2008, which was denied by Mr. Canterbury. That request is not the subject of this appeal.
. Justice Maynard was defeated in his bid for reelection in 2008.
. Mr. Blankenship is the CEO of Massey Energy Company.
. The FOIA request also sought all communications that were made between Mr. Blankenship
. See W. Va.Code § 29B-1-50) (1977)(Rep. Vol. 2007) ("Any person denied the right to inspect the public record of a public body may institute proceedings for injunctive or declaratory relief in the circuit court in the county where the public record is kept.’’).
. The circuit court's order explicitly held that insofar "[a]s the injunctive relief provided effectively resolves the dispute between the parties, declaratory relief is unnecessary.” We also should note that the parties have suggested that the standard of review is that which we utilize for summary judgment. See Farley v. Worley, 215 W.Va. 412, 418, 599 S.E.2d 835, 841 (2004) (" 'Summary judgment is the preferred method of resolving cases brought under FOIA.’ ”) (quoting Evans v. Office of Personnel Mgt., 276 F.Supp.2d 34, 37 (D.D.C.2003)). However, that standard of review is not applicable because the trial court held an evidentiary hearing in which witness testimony was taken. We therefore treat the disposition as an order arising from a bench trial. See W. Va. R. Civ. P. 52(a).
. We wish to make abundantly clear that this opinion does not address the issue of whether communication between Justice Maynard and his law clerks or other court personnel concerning judicial decision-making was subject to disclosure under FOIA. The circuit court’s order expressly noted in passing that "FOIA exempts from disclosure 'internal memoranda or letters received or prepared by any public body.' W. Va.Code § 29B-1 -4(a)(8) (2008). Accordingly, such internal communications and information would clearly reflect the judicial decision making process and would be exempt from disclosure under FOIA.”
. We reject the suggestion in Mr. Canterbury’s brief that FOIA has no application to records kept by the judicial branch of government.
. We wish to make clear that there is no absolute right to obtain disclosure of nonexempt judicial public records through FOIA if other means of disclosure exist. See e.g., Syl. pt. 3, State ex rel. Wyant v. Brotherton, 214 W.Va. 434, 589 S.E.2d 812 (2003) ("An inmate may not use the Freedom of Information Act, W. Va.Code § 29B-1-1 et seq., to obtain court records for the purpose of filing a petition for writ of habeas corpus. Instead, an inmate is bound to follow the procedures set out in the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia for filing a petition for writ of habeas corpus and to obtain documentation in support thereof.”).
. The AP's brief frames the issues in a variety of ways. However, we have reduced those issues to their analytical essence.
. Insofar as this case turns on whether or not the thirteen e-mails are “public records,” we need not address FOIA’s exemptions. See W. Va.Code § 29B-1-4 (2009) (Supp.2009) (setting out FOIA’s exemptions).
. The high court in Griffis remanded the case for a determination of whether the contents of any of the e-mails constituted a public document.
. Only two other states use a phrase similar to "but is not limited to" in their FOIA definition of public record. See 5 Ill. Comp. Stat. Ann. § 140/2(c) (2002); Or. Rev. Stat. Ann. § 192.410(4) (2005).
. URL is the "[a]bbreviation of Uniform Resource Locator, the global address of documents and other resources on the World Wide Web.” Webopedia Online Dictionary, http://www. webopedia.com/term/u/url.html. See also Felsher v. University of Evansville, 755 N.E.2d 589, 595 (Ind.2001) (”[E]ach web page is stored and accessed as a separate file located by a unique address called a Uniform Resource Locator (URL).”).
. The trial court’s reliance upon a context-driven analysis was due to the fact that it adopted the analytical framework relied upon by the Idaho Supreme Court in Cowles. That is, the court in Cowles applied a context-driven analysis in reaching its decision.
. Nevertheless, our cases do permit a "context-driven" analysis for writings that are, in fact, public records, but which are specifically exempted from disclosure by FOIA. See W. Va.Code § 29B-1-4 (2009) (Supp.2009) (setting out FOIA’s exemptions). However, we have never held that a context-driven analysis is appropriate for deciding whether a personal document should be deemed a public record in the first instance. See, e.g., In re Charleston Gazette FOIA Request, 222 W.Va. 771, 671 S.E.2d 776 (2008) (allowing public interest to be a factor in deciding whether to disclose public records of activity logs and payroll time sheets of police officers); Smith v. Bradley, 223 W.Va. 286, 673 S.E.2d 500 (2007) (allowing public interest to be a factor in deciding whether to disclose public record performance evaluations in the form of-student, peer, and chair evaluations); Manns v. City of Charleston Police Dep’t., 209 W.Va. 620, 550 S.E.2d 598 (2001) (allowing public interest to be a factor in deciding whether to disclose public records regarding outcome of police department’s internal investigations of every officer against whom civil or criminal complaint had been filed); Robinson v. Merritt, 180 W.Va. 26, 375 S.E.2d 204 (1988) (allowing public interest to be a factor in deciding whether to disclose workers’ compensation public records containing names, addresses, employer information, and information regarding type of injuries sustained
. We agree with the circuit court’s decision not to release the eight e-mails, but disapprove of the circuit court’s context-driven determination that the eight e-mails would have been ordered disclosed had Justice Maynard had not recused himself frpm cases involving Massey Energy Company. See Schmehl v. Helton, 222 W.Va. 98, 106 n. 7, 662 S.E.2d 697, 705 n. 7 (2008) ("[T]his Court may in any event affirm the circuit court on any proper basis, whether relied upon by the circuit court or not.”); Murphy v. Smallridge, 196 W.Va. 35, 36-37, 468 S.E.2d 167, 168-69 (1996) ("An appellate court is not limited to the legal grounds relied upon by the circuit court, but it may affirm or reverse a decision on any independently sufficient ground that has adequate support.”).
. As we previously indicated, as a result of the circuit court’s resolution of this case based upon the AP's request for injunctive relief, it did not have to reach the AP’s claim for declaratory judgment. We leave for the circuit court to determine on remand to what extent, if any, the AP's request for declaratory judgment has merit