The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
_____________ FILED
April 26, 2017
No. 15-1174 released at 3:00 p.m.
RORY L. PERRY, II CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,
Petitioner
V.
SHANE R. MARCUM,
Respondent
____________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Joanna I. Tabit, Judge
Civil Action No. 15-C-1668
REVERSED
____________________________________________________________________
Submitted: April 4, 2017
Filed: April 26, 2017
Patrick Morrisey Paul M. Stroebel
Attorney General Stroebel & Johnson, PLLC
Benjamin Freeman Charleston, West Virginia
Assistant Attorney General Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner
Leah Perry Macia
West Virginia Regional
Jail Authority, Petitioner
Vincent Trivelli David Allen Barnette
Morgantown, West Virginia Vivian H. Basdekis
Attorney for Amicus Curiae Jackson Kelly, PLLC
Communications Workers of America, Charleston, West Virginia
AFL-CIO Attorneys for Amicus Curiae
West Virginia Broadcasters’
Patrick Morrisey Association
Attorney General
John H. Boothroyd
Assistant Attorney General
Charleston, West Virginia
Attorneys for Amicus Curiae
West Virginia Division of Corrections
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE WORKMAN concurs in part, and dissents in part, and reserves the right to
file a separate opinion.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. “The 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].” Syllabus point 4,
Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).
3. “The party claiming exemption from the general disclosure requirement
under West Virginia Code § 29B-1-4 has the burden of showing the express applicability of
such exemption to the material requested.” Syllabus point 7, Queen v. West Virginia
University Hospitals, Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).
4. Pursuant to W. Va. Code § 29B-1-4(a)(19) (2016) (Supp. 2016)
disclosure of a videotape of the cell extraction of an inmate is prohibited, because it displays
part of the design of a correctional facility and the operational procedures of personnel
relating to the management of inmates, such that, if disclosed, could be used by an inmate
to escape from a facility or to cause injury to another inmate, resident or to facility personnel.
i
Davis, Justice:
The Petitioner in this matter, the West Virginia Regional Jail and Correctional
Facility Authority (“the Regional Jail”) brought this appeal from an order of the Circuit Court
of Kanawha County. The circuit court’s order required the Regional Jail turn over a
videotape to the Respondent, Shane Marcum, pursuant to his request under the West Virginia
Freedom of Information Act (“FOIA”).1 In this appeal, the Regional Jail contends that the
videotape is exempt from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2)
and (19) (2016) (Supp. 2016). After a careful review of the briefs and the appendix record,
and listening to the argument of the parties, we reverse.2
I.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts in this proceeding are not in dispute. On February 27, 2015,
Mr. Marcum was being held on felony charges in the Western Regional Jail in Cabell
County, West Virginia. For reasons that have not been made clear by the parties, it was
determined by authorities at the facility that Mr. Marcum had to be physically removed from
his cell. At least four correctional officers were initially involved in what is called a “cell
1
See W.Va. Code § 29B-1-1 et seq.
2
This Court is grateful for the amicus curiae briefs filed by the West Virginia
Broadcasters’ Association; Communications Workers of America, AFL-CIO; and West
Virginia Division of Corrections. We value the participation of the amici and have
considered their briefs in conjunction with the briefs of the parties.
1
extraction.”3 To carry out the cell extraction, the officers tossed two flash bang grenades into
the cell.4 After tossing the grenades into the cell, the officers removed Mr. Marcum from his
cell. The cell extraction and events immediately following were recorded on videotape by
the Regional Jail.
As a result of alleged injuries he received during the cell extraction, Mr.
Marcum filed a civil action against the Regional Jail in circuit court. That proceeding was
subsequently removed to federal court, where it is now pending. During the proceeding in
federal court, Mr. Marcum requested a copy of the videotape that recorded his cell extraction.
The Regional Jail agreed to provide a copy of the videotape “subject to a protective order.”
Mr. Marcum refused to accept the videotape under protective order conditions. Instead, Mr.
Marcum requested the videotape pursuant to FOIA. By letter dated July 24, 2015, the
Regional Jail refused to turn over the videotape under FOIA on the grounds that it was
3
“A cell extraction is forcible removal of an inmate from a cell, utilized when
an inmate has either refused to comply with stated orders, or is engaged in harmful behavior
towards himself or other inmates.” Nina Frank, Such Visible Fiction: The Expansion of Scott
v. Harris to Prisoner Eighth Amendment Excessive Force Claims, 32 Cardozo L. Rev. 1481,
1514 (2011).
4
See Boyd v. Benton County, 374 F.3d 773, 776 (9th Cir. 2004) (“The
flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and
loud noise upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets,
creating a window of time in which police officers can safely enter and secure a potentially
dangerous area.”); Terebesi v. Torreso, 764 F.3d 217, 225 n.4 (2d Cir. 2014) (“The
grenades . . . go by a variety of names, including ‘flash grenade,’ ‘stun grenade,’ ‘concussion
grenade,’ ‘distraction device,’ and the colloquial ‘flashbang.’”).
2
exempt under W. Va. Code §§ 29B-1-4(a)(2) and (19).
In September 2015, Mr. Marcum filed a complaint for preliminary injunction
and declaratory relief against the Regional Jail in circuit court. The complaint sought a court
order requiring the Regional Jail turn over the cell extraction videotape under FOIA.
Subsequent to a hearing on the matter, the circuit court entered an order on November 4,
2015, requiring the Regional Jail to produce the videotape to Mr. Marcum. This appeal of
that order followed.
II.
STANDARD OF REVIEW
In this proceeding, we are called upon to review a circuit court order that
determined FOIA did not exempt disclosure of a cell extraction videotape. This issue
presents a de novo review standard “because [it] requires an interpretation of West Virginia’s
FOIA[.]” Charleston Gazette v. Smithers, 232 W. Va. 449, 460, 752 S.E.2d 603, 614 (2013).
We have long recognized that “[w]here the issue on an appeal from the circuit court is clearly
a question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3
III.
DISCUSSION
The Regional Jail contends that its videotape of the cell extraction of Mr.
Marcum is exempted from disclosure under FOIA pursuant to W. Va. Code §§ 29B-1-4(a)(2)
and (19). Mr. Marcum argues that there is no language in either of the statutory provisions
that exempt release of the videotape.
We begin by observing the framework for our statutory analysis. 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). Further, 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).
4
As a general matter, “FOIA requires the release of public records upon
request.” Highland Min. Co. v. West Virginia Univ. Sch. of Med., 235 W. Va. 370, 380, 774
S.E.2d 36, 46 (2015). See also W. Va. Code § 29B-1-4(a) (“There is a presumption of public
accessibility to all public records[.]”). It is expressly provided under W. Va. Code
§ 29B-1-3(a) (2015) (Repl. Vol. 2015) 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
[W. Va. Code § 29(B)-1-4] of this article.” It has been recognized that FOIA “seeks to
permit access to official information long shielded unnecessarily from public view and
attempts to create a judicially enforceable public right to secure such information from
possibly unwilling official hands.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151
52, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989) (internal quotations and citation omitted).
The presumption of disclosure of public records under FOIA is qualified by twenty-one
categories of public records that are exempt from disclosure pursuant to W. Va. Code §
29B-1-4(a). The decisions of this Court have been clear in holding 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). Accord Farley v. Worley, 215 W. Va. 412, 420, 599 S.E.2d 835, 843
(2004). It also has been held that “[t]he party claiming exemption from the general
disclosure requirement under West Virginia Code § 29B-1-4 has the burden of showing the
5
express applicability of such exemption to the material requested.” Syl. pt. 7, Queen v. West
Virginia Univ. Hosps., Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).
Although the Regional Jail raised two provisions under FOIA as exempting
disclosure of the cell extraction videotape, the circuit court’s order addressed only the
exemption under W. Va. Code § 29B-1-4(a)(19). Because of our resolution of this provision,
we need not address the provision the circuit court omitted, W. Va. Code § 29B-1-4(a)(2).
West Virginia Code § 29B-1-4(a)(19) was added to FOIA in 2009. This is the
first opportunity we have had to review the provision. The text of the provision sets out the
following:
(a) There is a presumption of public accessibility to all
public records, subject only to the following categories of
information which are specifically exempt from disclosure under
the provisions of this article:
....
(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 used by an inmate or resident
to escape a facility, or to cause injury to another inmate, resident
or to facility personnel[.]
In the context of the issue presented to this Court, we find no ambiguity in the provision. It
6
is apparent that this provision seeks to maintain the safety and security at correctional
facilities by preventing public access to records that could be used by an inmate to escape
from a facility, or to cause injury to someone in the facility.5 The Regional Jail contends that
the contents of the cell extraction videotape satisfies the exemption under W. Va. Code
§ 29B-1-4(a)(19), because it “contains numerous images of the inside of the jail and the
movement of various jail personnel, which, if released, would compromise the safety and
security of the facility and the inmates and staff therein.”
The issue of whether a videotape of a cell extraction of an inmate is exempt
from disclosure, under public record statutes similar to our FOIA, has been addressed only
by a few courts. The federal district court in Zander v. Department of Justice, 885 F. Supp.
2d 1 (D.D.C. 2012), is one of the few courts to squarely address the issue.6 The plaintiff in
Zander, a former federal prisoner, filed a complaint under the federal FOIA to require the
release of records relating to his incarceration. Among the records sought was a videotape
of his cell extraction by correctional officers. A federal magistrate held a hearing on the
5
Mr. Marcum contends that the videotape should not be exempted from
disclosure under the provision because a videotape is not specifically mentioned in the
statute. We reject this argument because the statute does not list any specific type of record
by name. The statute speaks in broad terms that addresses records that could be used for an
escape from a facility or to cause harm to someone in the facility.
6
See Daily Gazette Co. v. West Virginia Dev. Office, 198 W. Va. 563, 571, 482
S.E.2d 180, 188 (1996) (“Recognizing the close relationship between the federal and West
Virginia FOIA, we note, in particular, the value of federal precedents in construing our state
FOIA’s parallel provisions.”).
7
matter and issued a recommendation that the cell extraction videotape be released to the
plaintiff in a redacted form, so that the faces of the officers involved would not be seen. The
defendants in the case, the Department of Justice and the Bureau of Prisons, objected to the
magistrate’s recommendation. The defendants argued before the district court judge that,
under FOIA, 5 U.S.C. § 552(b)(7)(F), a public record like the cell extraction videotape was
exempt from disclosure in any form. This provision of the federal FOIA exempted from
disclosure “‘records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . could
reasonably be expected to endanger the life or physical safety of any individual.’” Zander,
885 F. Supp. 2d at 6-7. The defendants made the following specific argument:
Defendants maintain that the videotape sought by Plaintiff
shows BOP’s Calculated Use-of-Force Team enter the
Plaintiff’s cell, apply restraints, and remove him from the cell,
depicting the equipment, tactics, movements, and procedures
used during the incident. Defendants argue that producing the
video, even with the faces of the officers obscured, would
nonetheless disclose the equipment, tactics, and procedures
utilized by the BOP Calculated Use-of-Force Team and that
such disclosure could reasonably be expected to endanger the
lives or physical safety of any BOP officers who subsequently
utilize those techniques and equipment in the course of their
duties. Furthermore, defendants contend that the video should
be withheld because obliterating the protected information
would be burdensome to the agency and the remaining
information would be of little value.
Zander, 885 F. Supp. 2d at 7 (internal quotations and citations omitted). The district court
judge agreed with the defendants and rejected the magistrate’s recommendation. The district
8
court concluded as follows:
The Court finds that the video is properly withheld under
FOIA exemption 7(F). Exemption 7(F) most clearly applies to
protect law enforcement officials from disclosure of information
that could prove threatening to them. . . .
[T]he Court concludes that the agency’s assessment of the
possible danger to law enforcement officials from disclosing the
video is abundantly reasonable. Removing prisoners from their
cells presents clear dangers to the law enforcement officers who
are charged with the task. Disclosure of a recording of a “cell
extraction” presents the possibility that other prisoners will learn
the methods and procedures utilized by BOP officials, and that
this information might be used to thwart the safe application of
these techniques in the future. The Court does not mean to
suggest that plaintiff himself presents such a danger, but
dissemination to the public at large does present clear risks to
law enforcement officials.
Zander, 885 F. Supp. 2d at 7-8 (internal citations omitted). See also Center for
Constitutional Rights v. Central Intelligence Agency, 765 F.3d 161, 169 (2d Cir. 2014)
(finding FOIA exemption precluded release of cell extraction videotapes of prisoners at
Guantanamo Bay Naval Base); Gabrion v. United States Dep’t of Justice, No. 2:15-CV-24
WTL-DKL, 2016 WL 5121987, at *7 (S.D. Ind. Sept. 21, 2016) (“The Court finds that
Exemption 7(F) applies, as disclosure of the video would present clear risks to law
enforcement officials. Other prisoners might learn this information and use it in the future.”);
International Counsel Bureau v. United States Dep’t of Def., 906 F. Supp. 2d 1, 7 (D.D.C.
2012) (finding FOIA exemption precluded release of cell extraction videotapes of prisoners
at Guantanamo Bay Naval Base); In Re: Ben Richard, Jr., No. 13-ORD-022, 2013 WL
9
565014 (Ky. Op. Att’y Gen. February 5, 2013) (“Release of the requested video footage is
a security threat because it can be viewed by others to assess the technology and/or
procedures used by LMDC [Louisville Metropolitan Department of Corrections] and other
law enforcement agents in the handling of inmates, it may be viewed to develop strategies
used to overtake LMDC’s officers and possibly other law enforcement agents, and the
footage can be used to study the camera’s range of sight–what is within the camera’s view
and the areas outside of the camera’s image which can be used to smuggle contraband and
other strategies of takeover or escape.”); Dilworth v. Westchester Cty. Dep’t of Correction,
940 N.Y.S.2d 146, 149 (2012) (“[T]he Department established, through the Sergeant’s
affidavit, that disclosure of the remaining electronic video surveillance records requested by
the petitioner could expose [surveillance] limitations and, thereby, endanger the life or safety
of any person.”).
Both parties in this proceeding contend that the decision in Ballard v.
Department of Corr., 122 Mich. App. 123, 332 N.W.2d 435 (1982), supports their respective
opposite positions in this appeal.7 The plaintiff in Ballard filed an action under Michigan’s
7
Mr. Marcum also cited in passing to the decision in Dhiab v. Obama, 70
F. Supp. 3d 486 (D.D.C. 2014) as support for disclosure of his cell extraction videotape.
First off, the federal decision in Dhiab did not involve disclosure of a cell extraction
videotape under the federal FOIA. In that case, a detainee at the United States Naval Base,
Guantanamo Bay, Cuba, filed a habeas corpus petition seeking, among other things, to
prevent the federal government from force-feeding him. During that proceeding, the
(continued...)
10
7
(...continued)
detainee’s attorney obtained, under seal, copies of videotapes of the detainee being extracted
from his cell and force-fed. The videotapes were classified by the government as
“SECRET,” because their public disclosure could harm national security. Several news
agencies intervened in the proceeding and sought disclosure of the videotapes. The
intervenors sought disclosure under the First Amendment and common law. The district
court ordered the videotapes disclosed, under the First Amendment, in a redacted form to
protect information identifying government personnel. The government eventually appealed
the disclosure order in the restyled opinion of Dhiab v. Trump, No. 16-5011, 2017 WL
1192911 (D.C. Cir. March 31, 2017). The appellate court reversed the district court’s
disclosure order for reasons that included the following:
[T]he intervenors are unable to cite a single case in which a
court–other than the district court here–found that the First
Amendment compelled public disclosure of properly classified
national security information in a habeas proceeding, or in any
other type of civil proceeding.
....
The government identified multiple ways in which
unsealing these recordings would likely impair national security.
Two of these risks–detainees triggering forcible encounters and
developing countermeasures–together and individually, were
enough to prevent these recordings from becoming public. The
government's declarations explained that the recordings would
enable detainees, assisted by outside militants, to develop
countermeasures to the guards’ cell-extraction and enteral
feeding techniques. The district court dismissed this prospect
because the government had already released substantial
information about these procedures and the detainees were
already intimately familiar with them. The government’s
declarations contradict the court’s assessment. The recordings
of the feeding process contain significantly more information
than previously released imagery, and the publicly released
information about cell extractions was outdated and described
techniques not being used at Guantanamo. The recordings also
(continued...)
11
FOIA in order to obtain a copy of a film showing him being forcefully removed from his cell.
The trial court ordered the defendant to turn over the film. The defendant appealed and
argued that the film was exempted from disclosure under a provision in FOIA that provided
for nondisclosure of a record if it “would prejudice a public body’s ability to maintain the
physical security of custodial or penal institutions occupied by persons arrested or convicted
of a crime or admitted because of a mental disability, unless the public interest in disclosure
under this act outweighs the public interest in nondisclosure.” Ballard, 122 Mich. App. at
124, 332 N.W.2d at 436. The defendant contended that release of the film “would prejudice
its ability to maintain the physical security of its institutions because such films may reveal
the methods, tactics, and equipment used to restrain and subdue prisoners and because, by
7
(...continued)
show elements of the procedures that take place outside the
detainee’s presence or shielded from the detainee or otherwise
obstructed from view. . . .
The government’s expert judgment was that militants
could study the recordings repeatedly and slowly, looking for
“patterns” of “mistakes” not identifiable from first-hand
experience or written descriptions. . . . When detainees resist
what are already hazardous procedures for the guards, this could
further endanger government personnel at Guantanamo. Guards
have been kicked, grabbed, punched, knocked down, bitten, and
sprayed with bodily fluids. The government’s interest in
ensuring safe and secure military operations clearly overcomes
any qualified First Amendment right of access.
Dhiab, 2017 WL 1192911, at *6-7 (internal quotations and citations omitted). To the extent
that Dhiab has any relevancy to our FOIA analysis, it supports the Regional Jail’s position
that the cell extraction videotape should be exempted from disclosure.
12
studying such films, prisoners might learn to circumvent such methods, tactics, and
equipment.” Id. at 125, 332 N.W.2d at 436. The appellate court determined that the statute
imposed a case-by-case approach to the disclosure of cell extraction film. It was said that,
the balancing test contained in the exemption at issue here
suggests that a case-by-case approach is required because it
reveals a legislative intent to accommodate, insofar as it is
possible, the respective public interests in institutional security
and freedom of information. If the balancing test must be
performed with generalizations rather than specifics, there will
be cases in which one of these public interests must be
sacrificed without any countervailing advancement of the other
public interest.
Id. at 127, 332 N.W.2d at 437. Applying the balancing test to the facts of the case, the
appellate court agreed with the trial court that the cell extraction film did not threaten the
security of the institution, because it “showed only the use of a mattress and overwhelming
manpower to subdue plaintiff[.]” Id. at 125, 332 N.W.2d at 436.8
8
Several other cases are cited in Mr. Marcum’s brief that are not relevant. The
cases cited do not involve disclosure of cell extraction videos pursuant to public disclosure
statutes. All of the cases cited simply involve the admission into evidence of cell extraction
videos during criminal proceedings or at proceedings against correction officers. See
McAlister v. State Pers. Bd., No. FO68970, 2015 WL 1541107 (Cal. Ct. App. April 1, 2015)
(administrative proceeding); Department of Pub. Safety & Corr. Servs. v. Cole, 103 Md. App.
126, 652 A.2d 1159 (1995), rev’d, 342 Md. 12, 672 A.2d 1115 (1996) (same); Ohio Dep’t
of Rehab. & Corr. v. Price, No. 10AP-260, 2010 WL 4683571 (Ohio Ct. App. Nov. 18,
2010) (same); Harper v. Ohio Dep’t of Rehab. & Corr., No. 08 MA 259, 2010 WL 1316236
(Ohio Ct. App. March 30, 2010) (same); Collins v. Ohio Dep’t of Rehab. & Corr., No.
2004-04370, 2009 WL 1433447 (Ohio Ct. Cl. May 20, 2009) (excessive force claim brought
by inmate); Hawkins v. State Civil Serv. Comm’n, No. 1386 C.D. 2013, 2014 WL 2447213
(Pa. Commw. Ct. May 30, 2014) (administrative proceeding); State v. Woolbert, 181 Vt. 619,
926 A.2d 626 (2007) (probation revocation); State v. Magett, 355 Wis. 2d 617, 850 N.W.2d
(continued...)
13
We are not persuaded by the decision in Ballard, because Michigan’s FOIA
statute expressly permitted the release of information like a cell extraction videotape under
a balancing test. West Virginia’s FOIA provision at issue, W. Va. Code § 29B-1-4(a)(19),
does not contain a balancing test for determining whether to disclose a record that could be
used “by an inmate or resident to escape a facility, or to cause injury to another inmate,
resident or to facility personnel.” Our statute provides a blanket prohibition against
disclosure of any record coming within its exemption. Consequently, we believe the decision
in Zander is persuasive in understanding and applying W. Va. Code § 29B-1-4(a)(19).
In the instant case the trial court succinctly described the contents of the cell
extraction videotape as follows:
12. The video at issue in the instant case depicts four
individuals approaching and entering a common area of the jail.
One of [the] individuals shouts the Petitioner’s name and
instructs him to “[g]et on the floor.” The four men proceed
upstairs to the Petitioner’s cell, and one of the m[e]n bangs on
the cell door. One of the men throws a flash bang grenade into
the cell. Then, the same individual throws another flash bang
grenade into the cell. The Petitioner is again instructed to “[g]et
on the floor.” Once the fumes from the explosions dissipate,
two individuals enter the cell and restrain the Petitioner while
another watches guard. The group of four individuals appears
to be joined by others, and Petitioner is then carried out of his
cell and down the stairs to the common area of the facility,
where he is placed on a gurney. He is then pushed through the
8
(...continued)
42 (2014) (trial); State v. Lindell, 296 Wis. 2d 418, 722 N.W.2d 399 (2006) (same).
14
hallway, apparently to medical, where heath care personnel
appear to be checking his vital signs. The Petitioner is then
taken outside and although dark, it appears that he is being
placed into a vehicle for transport.9
It is quite clear from the circuit court’s description that the videotape identifies
the correction officers making the cell extraction, shows their equipment, shows their
location before and during the entry of the cell, and reveals the path from the cell to other
areas in the facility, including a door that leads to a parking area of the facility. We do not
believe that the legislature intended such information to be easily accessed by the public
through FOIA, because it discloses information involving the design of the facility and
operational procedures of personnel relating to the safe and secure management of inmates,
which could be used for an escape or to cause injury.10
After a mature consideration of the issue, we now hold that, pursuant to W. Va.
Code § 29B-1-4(a)(19), disclosure of a videotape of the cell extraction of an inmate is
9
This Court’s independent review of the videotape confirmed the trial court’s
description of events.
10
It was correctly pointed out in the amicus brief of the Division of Corrections
that “[i]f an inmate or inmate accomplice . . . requests and gets a copy of video surveillance
of the transport area and or perimeter area of the regional jail, an inmate has videotape
showing a potential escape route.” See, e.g., Black v. Swoboda, No. 95-2654-FT, 1996 WL
593827, *1 n.5 (Wis. Ct. App. Oct. 17, 1996) (“The Department of Corrections’ policy
precludes providing requesters with a copy of the [cell extraction] tape to prevent an analysis
of the correctional institution’s security precautions, procedures and capabilities.”).
15
prohibited, because it displays part of the design of a correctional facility and the operational
procedures of personnel relating to the management of inmates, such that, if disclosed, could
be used by an inmate to escape from a facility or to cause injury to another inmate, resident
or to facility personnel.11 In view of our holding, it is clear that the circuit court committed
error in ordering the disclosure of the cell extraction videotape.12
11
Mr. Marcum’s brief indicates that his counsel has in the past requested “jail
videos” from the Regional Jail, and that such videos were produced without a protective
order. We are not concerned with any past experience of counsel in obtaining jail videos
from the Regional Jail. Our concern is with the application of W. Va. Code § 29B-1-4(a)(19)
on the release of cell extraction videotapes.
12
We should note that, even though the videotape is exempt from disclosure
under FOIA, this does not preclude its disclosure under the discovery rules in a civil lawsuit.
See Syl. pt. 2, Maclay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000) (“The provisions of
this state’s Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (1998), which
address confidentiality as to the public generally, were not intended to shield law
enforcement investigatory materials from a legitimate discovery request when such
information is otherwise subject to discovery in the course of civil proceedings.”). See also
Wagner v. Warden, Civ. Action No. ELH-14-791, 2016 WL 7178297, at *13 (D. Md. Dec.
8, 2016) (“Wagner seeks discovery, among other things, of the video recording of his cell
extraction. . . . Wagner is entitled to conduct some discovery.”); Hyatt v. Rock, Civ. No.
9:15-CV-0089 (DNH/DJS), 2016 WL 6820378, at *6 (N.D.N.Y. Nov. 18, 2016) (“As to
Demand No. 67, any video of the cell extraction on May 12, 2012 shall be provided to the
Plaintiff for viewing, if that has not been done already.”). Such sensitive information may
be disclosed in a civil lawsuit because a trial court can impose restrictions on its
dissemination and use through a protective order. As we noted previously, the Regional Jail
was prepared to turn over the videotape under a protective order. Obviously our holding
does not remove this offer from the table.
16
IV.
CONCLUSION
The circuit court’s order of November 4, 2015, requiring disclosure of the cell
extraction videotape, is reversed.
Reversed.
17