The West Virginia Freedom of Information Act is designed to be broadly interpreted to safeguard citizens' access to public records. The Act defines public records as all written material "irrespective of physical form or characteristics," which encompasses social media records in West Virginia.
§29B-1-1. Declaration of policy.
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.
(4) “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.
(5) “Writing” includes any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.
The State Attorney General has issued a guidance document concerning the West Virginia Freedom of Information Act. The purpose of this document is to clarify the scope and intent of the Act, which aims to provide citizens with access to "full and complete information" held by public bodies, regardless of the format. According to the guidance, social media records in West Virginia may be regarded as public records.
The State statute on public records, known as the Freedom of Information Act, was enacted for the express purpose of providing full and complete information to all persons about the workings of government and the acts of those who represent them as public officials and employees, so that the people may be informed and retain control. Its provisions must be liberally construed to carry out that purpose.
The Act applies to all State, county and municipal officers, governing bodies, agencies, departments, boards and commissions, and any other bodies created or primarily funded by State or local authority, unless their enabling statute specifically exempts them from its provisions. The records covered by the Act include virtually all documents and information retained by a public body, regardless of their form.
The WV-FOIA definition of a “public record” includes “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). A “writing” for purposes of the Act includes “any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.” W. Va. Code § 29B-1-2(5).
“The definition of a ‘writing’ contained in W. Va. Code § 29B-1-2(5) (1977) (Repl. Vol. 2007) of the West Virginia Freedom of Information Act includes an e-mail communication.” Syl. pt. 2, Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). However, the Supreme Court also held:
A “public record” under the West Virginia Freedom of Information Act (FOIA) is defined as “includ[ing] 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) (1977) (Repl. Vol. 2007). Under the clear language of the “public record” definition, a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public’s business, is not a public record subject to disclosure under FOIA.
The City of Morgantown has developed detailed guidelines governing the use of social media as a means of engaging with the public. According to these guidelines, social media content may be treated as a public record that is subject to public disclosure. Furthermore, all social media sites must comply with relevant federal, state, and local laws. Therefore, the City of Morgantown's approach implies that social media records in West Virginia must be retained as public records.
5. The authorized administrators will monitor content on City social media sites to ensure adherence to both the City’s Social Media Policy and the interest and goals of the City of Morgantown.
6. The City reserves the right to restrict or remove any content that is deemed in violation of this Social Media Policy or any applicable law.
7. These guidelines must be displayed to users or made available by hyperlink.
8. The City will approach the use of social media tools as consistently as possible.
9. The City of Morgantown’s website at www.MorgantownWV.gov will remain the City’s primary and predominant internet repository of accessible online information.
10. All City social media sites shall adhere to applicable federal, state and local laws, regulations and policies.
11. Any content maintained in a social media format that is related to City business may be considered a public record subject to public disclosure. This may include a list of subscribers (excluding any information of a personal nature), posted communication, and communication submitted for posting.
12. Comments on topics or issues not considered to be within the relevant concerns of the City of Morgantown may be removed.