Gray Media Grp., Inc. v. W. Va. Dep't of Health & Hum. Res.

902 S.E.2d 894

GRAY MEDIA GROUP, INC., d/b/a WSAZ, Plaintiff Below, Petitioner,

v.WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendant Below, Respondent.

No. 23-ICA-283

West Virginia Intermediate Court of Appeals.

Submitted: April 16, 2024

Filed: May 23, 2024

Appeal from the Circuit Court of Kanawha County, Honorable Kenneth D. Ballard, Judge, Civil Action No. 22-P-197

Matthew S.L. Cate, Esq., Charles D. Tobin, Esq., Ballard Spahr LLP, Washington, D.C., Pro Hac Vice Erica M. Baumgras, Esq., Flaherty Sensabaugh & Bonasso PLLC, Charleston, WV, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Michael R. Williams, Principal Deputy Solicitor General, Spencer J. Davenport, Assistant Solicitor General, Charleston, WV, Counsel for Respondent

SCARR, CHIEF JUDGE:

Gray Media Group, d/b/a WSAZ ("WSAZ"), operates a television station headquartered in Huntington, West Virginia, with an additional studio and newsroom in Charleston, West Virginia. WSAZ appeals from two Orders entered by the Circuit Court of Kanawha County on March 31, 2023, and May 31, 2023. These orders held, in part, that the West Virginia Department of Health and Human Resources ("Department") was not required to disclose an April 2022 termination letter from William Crouch (Secretary of the Department) to Jeremiah Samples (Deputy Secretary) in response to a Freedom of Information Act ("FOIA") request from WSAZ. The circuit court concluded that disclosure would constitute an unreasonable invasion of privacy and the letter was therefore exempt from disclosure under West Virginia Code § 29B-1-4(a)(2) (2021). We reverse and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In early April 2022, the Department fired its Deputy Secretary, Jeremiah Samples, during a period of intense scrutiny regarding the Department’s operations. The Legislature had recently passed legislation, vetoed by the governor, which would have split the Department into two agencies because of concerns that it had grown too large, unwieldy, and inefficient. Mr. Samples’ firing prompted substantial news coverage and was discussed publicly by lawmakers, Samples, and the agency official who fired him.¹ In fact, one news outlet described his termination as the "political news of the week." See Joe Severino, Will Samples’ Exit Be a Beginning or an End?; Charleston GazetteMail (April 12, 2022); Appendix ("App.") at 114.

Following the termination of his employment, Mr. Samples issued a public statement explaining that "DHHR has struggled to make, and even lost, progress in many critical areas."² Specifically, he noted that "[c]hild welfare, substance use disorder, protection of the vulnerable, management of state health facilities, EMS and provider capacity, supporting client transition from public assistance to the workforce, contract management, and many more DHHR responsibilities have simply not met anyone’s expectation, especially my own." He also alluded to differences with Secretary Crouch regarding these problems, stating that "Secretary Crouch and I have not shared the same views on what the problems are, how to handle them, or the urgency of achieving results."³

When WSAZ learned of the firing, its Assistant News Director submitted a two-part FOIA request to the Department seeking (1) copies of all communications and documentation regarding the resignation or termination of Jeremiah Samples and (2) all email com- munications between Mr. Samples and Secretary Crouch between December 1, 2021, and April 7, 2022. WSAZ claims it sought the records

because there is a compelling public interest in the circumstances of the termination of the second-in-command of a state agency that has long been under legislative scrutiny as it oversees the state’s response to the COVID-19 pandemic, government-assistance programs, and other matters that directly affect the well-being of the citizens of this state.

The Department initially refused to produce any records in response to the request on the grounds that "any responsive records in our possession are exempt from disclosure pursuant to West Virginia Code § 29B-1-4(a)(2) and West Virginia Code § 29B-1-4(a)(8)," which led WSAZ to file the underlying "Complaint for Declaratory and Injunctive Relief Pursuant to the West Virginia Freedom of Information Act" on May 31, 2022. In addition to declaratory and injunctive relief, WSAZ sought attorney fees pursuant to West Virginia Code § 29B-1-7 (1992).⁴ The Department subsequently filed a motion to protect exempted documents while WSAZ filed a motion for partial summary judgment.

[1] Ultimately, many of the public records responsive to WSAZ's request were disclosed, in whole or in part, because of the lawsuit. This appeal pertains to Just one document – the April 2022 letter from William Crouch, then the Department's Secretary, notifying Mr. Samples of his termination and explaining the reasons for the decision. The Department asserted that the letter was exempt from disclosure under W. Va. Code § 29B-1-4(a)(2) because it was "information of a personal nature" whose disclosure "would constitute an unreasonable invasion of privacy."⁵ The circuit court ordered the Department to provide it with a copy of the letter for in camera review.

On December 14, 2022, the circuit court appointed R. Scott Long, Esq. as Special Commissioner to review’ in camera all withheld records at issue, including Mr. Samples’ termination letter, and to determine whether they were exempt from disclosure under FOIA. On January 18, 2023, Special Commissioner Long issued his recommendations, finding, among other things, that the termination letter was not subject to disclosure because it was covered by the FOIA exemptions for internal memoranda and personal information. On January 26, WSAZ filed its objections to the recommended decision. On March 9, 2023, the parties appeared for a hearing on the objections.

By order dated March 31, 2023, the circuit court ruled that the termination letter was protected from disclosure under the invasion of privacy exemption of FOIA. This exemption contained in West Virginia Code § 29B-1-4(a)(2) provides protection for:

Information of a personal nature such as kept in a personal, medical, or similar file, if the public disclosure of the information would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in this particular instance …

Although the termination letter was deemed confidential and not subject to disclosure, the court found that WSAZ substantially prevailed as to the other FOIA requests and ordered the Department to pay costs related to Special Commissioner Long.

On May 31, 2023, the circuit court entered its "Final Order" ruling on some additional objections raised by WSAZ to the Special Commissioner’s Amended Second Recommended Decision, which related to thirty-four records that the Department withheld from disclosure, including the termination letter. The court referred to its prior order of March 31, 2023, that the letter is "personal confidential information protected from disclosure" and stated that this ruling remained "unchanged."

On July 10, 2023, the Department, by email, produced a group of records to WSAZ in compliance with the May 31, 2023, order currently on appeal. Inadvertently included in the production was an unredacted copy of an unsigned draft of the termination letter. In this draft letter, Secretary Crouch sharply criticized Mr. Samples’ performance of his public duties and its adverse effect on the Department’s integrity and function. Among other things, the draft:

• Advises Samples of Secretary Crouch’s decision to immediately dismiss Samples as Deputy Secretary;

• Accuses Samples of conduct that "prevents or hinders the Department from meeting its objectives" in serving the public;

• Writes that he had repeatedly told Samples that communication between them "is critical to assure that the Department is moving in the right direction and fulfilling its role in the state;"

• States that despite these repeated admonitions, there had been "an ongoing and virtually total lack of communication and coordination regarding [Samples’] duties and responsibilities;"

• Asserts that Samples’ failure to adequately communicate with Crouch "is misconduct and insubordination which prevents, or at the very least, delays the Department in fulfilling its mission;"

• Accuses Samples of having actively opposed Crouch’s policy decisions and of trying to "circumvent those policy decisions by pushing your own agenda," allegedly causing departmental "confusion" and resulting in "a slowdown in getting things accomplished in DHHR;"

• Notes that Samples had been told multiple times "to focus on child welfare," but "[r]ather than follow that directive, [Samples] chose to involve [himself] in all issues regarding DHHR wherever [he] saw fit," and "in many instances" had given directives that were in conflict with what Crouch had directed;

• Informs Samples that his behavior violated the Department’s official written policy governing employee conduct; and

• Concludes that Samples’ termination was necessary "to maintain the Department’s integrity, which provides its employees with a means to ensure its efficient and effective operation."

App. at 423-24.

When WSAZ notified the Department of the inadvertent disclosure of this draft letter, the Department moved for an order restraining WSAZ from disseminating the draft. The circuit court issued a temporary injunction, but after an August 23, 2023, hearing, it dissolved the temporary order and denied the Department’s motion for a permanent restraining order. In its August 28, 2023, order denying the motion for a permanent restraint, the court concluded that once the Department sent the unredacted draft to WSAZ’s counsel, WSAZ had a First Amendment right to publish the...