4- H Road Community Association v. West Virginia University Foundation
In 4- H Road Community Association v. West Virginia University Foundation, 182 W.Va. 434, 388 S.E.2d 308 (1989) (per curiam), the Court specifically held that the West Virginia University Foundation, the same private organization involved in this appeal, is not a public body because "[the Foundation] was not created by state authority, nor is it primarily funded by state authority[,]" id., 182 W.Va. at 439, 388 S.E.2d at 312-13; therefore, the Foundation was not subject to the FOIA.
To reach its decision, the 4-H Road Community Association Court consulted the statutory definition of "public body" 1 and then reasoned the Foundation was private because:
(1) it was formed by private citizens pursuant to the general corporate laws of the State;
(2) no legislative mandate predated its incorporation;
(3) it is not located on state property;
(4) it does not utilize state employees;
(5) selection of the Board of Directors, and their duties, are governed by the corporation's by-laws; and (6) the WVU President serves as an ex officio member of the Board by virtue of the by-laws rather than by legislative mandate. Id., 182 W.Va. at 437, 388 S.E.2d at 311.