CHARLESTON - The West Virginia Supreme Court of Appeals ruled that an imposed fee of $1-per-page does not include photographs taken by individuals that are members of the public.
Justice Beth Walker wrote in the majority opinion that the court disagreed with the circuit court's finding that the fee was allowed.
"On appeal, we disagree and find that the clear language of § 59-1-11(b)(2) limits the imposition of the statutory per-page fee to 'transcripts, copies, and papers' actually 'made by the clerk,' and does not apply to photographs taken by a member of the public," Walker wrote in the March 15 opinion.
Justice Beth Walker
| courtswv.gov
Jay Lawrence Smith, a freelance legal researcher, went to the Grant Circuit Clerk's Office in September 2018 to review public records relating to several criminal cases that were pending and was informed that if he wanted to take photographs of the records, he would have to pay $1 per page for taking his own photographs.
He refused and, instead, mailed a FOIA request for the documents to the clerk's office. He also enclosed $5 to cover to cost of the documents and postage with his request. The request was then denied and his money was returned, with the clerk saying the request lacked clarity.
The matter was then referred to the Grant County Prosecuting Attorney, John G. Ours, who reiterated the same information to Smith.
Smith then filed a complaint with the circuit court on March 25, 2019, alleging that the clerk was wrong to charge him to take his own photographs of public records. The defendants sought to dismiss the case and the court did so on July 1, 2019.
"Based on the clear language in West Virginia Code § 59-1-11(b)(2), we conclude that the Circuit Court of Grant County erred," Walker wrote in the opinion. "The Grant County Circuit Clerk was not permitted to charge Mr. Smith a fee for photographs he intended to take of public records."
The court reversed the circuit court’s order dismissing Smith’s complaint and remanded it for proceedings consistent with the opinion.
"And, because we find that under West Virginia Code § 59-1-11(b)(2) Mr. Smith should have been permitted to photograph the public documents he reviewed in the Grant County Clerk’s Office in September 2018 without paying the fee of one dollar per page, we need not address his remaining arguments surrounding his subsequent FOIA request that sought copies of those same documents," Walker wrote.
W.Va. Supreme Court of Appeals case number: 19-0679
