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Deleting a public record refers to the process of legally destroying, obliterating, or striking out every copy of a record or information in a file, computer, and other depositories relating to an event that is accessible to the general public. Deleting a public record may become a desire if the content therein is impacting negatively on opportunities such as employment, or obtaining credit, loans, and licenses. While West Virginia does not make any provisions for permanently deleting a public record, it allows residents to expunge certain records if they qualify. In many instances, the same barriers residents want lifted by deleting public records can be lifted by expunging those records. Expungement differs from a deletion in that while expunged records are publicly inaccessible, they can still be accessed in limited circumstances by a specific group of people.
What is a Public Record in West Virginia?
Per the West Virginia Freedom of Information Act, a public record is any "writing" containing information relating to the conduct of the public's business, prepared, owned, and retained by a public body. A public body means every:
- State officer
- Agency
- Department, including the executive, legislative and judicial departments
- Division
- Bureau
- Board
- Commission
- County and city governing body
- School district
- Special district
- Municipal corporation
- Any other body which is created by state or local authority or which is primarily funded by the state or local authority
The Act also defines "writing" to include any:
- Books
- Papers
- Maps
- Photographs
- Cards
- Tapes
- Recordings
- Other documentary materials regardless of physical form or characteristics
The West Virginia FOIA grants everyone the right to inspect or copy any public record of a public body in the state, except where exemptions are expressly provided for. The state views making records public as a cornerstone of a democratic society and a show of commitment to providing accountability on its decision and actions. West Virginia affords citizens the privilege to live without fear of discrimination related to a public record by obtaining a court order permitting record sealing in specific circumstances. We also offer record-sealing service to West Virginia citizens who wish to start new lives without the handicap of previous misdemeanors.
Does West Virginia allow Expungement?
Yes. Pursuant to Section 61-11-26 of the West Virginia Code, and for misdemeanor convictions, an individual is eligible for expungement one year after the conviction and completion of any sentence of incarceration and any period of supervision. An individual is eligible for expungement of multiple misdemeanor convictions two years after the last conviction and completion of any sentence of incarceration and any period of supervision.
West Virginia also provides for accelerated expungement in some instances. Per Section 61-11-26a, an individual who has a medically documented history of substance abuse and:
- Successful compliance with a substance abuse treatment or recovery and counseling program approved by the Secretary of the Department of Health and Human Resources; or
- Graduates from a West Virginia Department of Education approved job readiness adult training course; or
- Fulfills both conditions stated above, if applicable
is eligible for early expungement. A single misdemeanor may be expunged upon the completion of any sentence of incarceration and any period of supervision. Multiple misdemeanors may be expunged under Section 61-11-26a, one year after the last conviction, completion of any sentence of incarceration, or completion of any period of supervision.
Under Section 61-11-26 of the West Virginia Code, the only felony convictions considered eligible for expunction in the state are non-violent felonies. For non-violent felony convictions, a person may petition the court five years after the completion of any sentence of incarceration and completion of supervision in the Circuit Court in the county where the conviction or convictions occurred. In certain instances, an individual may be eligible for accelerated expungement. The conditions for accelerated expungement for misdemeanor convictions are the same for felony convictions. A single felony conviction may be expunged three years after the completion of any sentence of incarceration and any period of supervision. Only a single felony offense or multiple felony offenses arising from the same transaction or a series of transactions may be expunged.
Regardless of a conviction, misdemeanor or felony, anyone seeking to obtain an expungement must not have pending criminal charges when filing the petition. West Virginia only allows an individual to request expungement of criminal records once pursuant to Section 61-11-26 and 61-11-26a of the West Virginia Code.
The following offenses are not eligible for expungement:
- Any offenses involving the use of a deadly weapon or dangerous instrument
- Misdemeanors involving the intentional infliction of physical injury to a minor or law enforcement officer
- Felonies "against a person" (including murder, use of explosives and destructive devices, sexual offenses, and child abuse)
- Felonies where the victim was a minor (includes felony violations soliciting a minor via a computer, morality offenses, distributing obscene matter to minors, using minors to film sexually explicit conduct, and child abuse)
- Sexual offenses (including sexual assault and abuse)
- Domestic violence, domestic assault, domestic battery
- Stalking and harassment under West Virginia Code 61-2-9a
- Abuse and neglect of an incapacitated adult
- Driving under the influence ("DUI") of alcohol or a controlled substance or refusing a blood alcohol content (BAC) test
- Driving on a suspended license ("SRO")
- Cruelty to animals
- Malicious assault or battery (felony)
- Misdemeanor assault or battery if the victim was a spouse, has a child in common with the person seeking the expungement, or if the victim ever cohabitated (lived in the same residence) with the person seeking expungement prior to the offense
- Burglary
- Any conviction with a finding by the Court that the offense was sexually motivated
- Any motor vehicle offense where the person holds a commercial driver's license ("CDL")
- Attempt to commit a felony that is excluded from expungement
- Conspiracy to commit an offense that is excluded from expungement
How do I Expunge My Criminal Record in West Virginia?
To expunge your records in West Virginia:
- Obtain your criminal history record from the West Virginia State Police Criminal Identification Bureau (CIB). You will the information contained in the record to appropriately complete the expungement form.
- Complete the appropriate expungement form. The correct forms can be obtained from the Circuit Court clerk in the county where your case was handled. The forms are also available on the West Virginia Judiciary website. Note that there are separate forms for misdemeanor convictions and felony convictions.
- Collect all the supporting documents required, including certified copies of court papers from the clerk and copies of program or educational certificates. Pay the appropriate fee to collect the required documents.
- Make copies of all the expungement form and all supporting documents
- File your petition and the supporting documents with the clerk of the court in the county where you were charged.
- Serve a complete set of all the documents on the required persons. By law, you must serve the superintendent of the state police, the prosecuting attorney, the chief of police, the warden where you were incarcerated, and the court where your case was handled. Ensure you follow all instructions correctly; otherwise, the court will dismiss your petition
- Pay the $200 filing fee for criminal convictions. If you are indigent and qualify, you can apply for a waiver by completing the Financial Affidavit and Application Form. There is no fee for an expungement petition for criminal charges.
After filing, the prosecuting attorney serves the petition on any identified victim. The prosecuting attorney, victim, or other interested persons can file a notice of opposition within 30 days. You will also get a copy of the notice of opposition if filed. By law, you have 30 days to file a reply to the notice. Within 60 days of filing your petition, the Circuit Court must do one of the following:
- Grant the petition
- Set the case for a hearing
- Request more information from the person who filed or ask them to correct obvious errors
- Dismiss the petition if the court determines the petition does not have all the necessary information or that the petitioner is not entitled to expungement
A person granted expungement must pay a fee of $100 to the records division of the West Virginia State Police for the cost of processing the expungement. This fee is waived if the petition is granted pursuant to the expedited procedure established for persons with a medically documented history of substance abuse.
Will My Expungement Record Show up on a Background Check in West Virginia?
Persons who have had records expunged in West Virginia will have all court and law enforcement records related to the criminal issue removed from public view. Such records will not show up on background checks or on non-FCRA compliant background checks. However, they can still be opened in limited situations that must be approved by a court. Note that expungement only affects records of law enforcement agencies, courts, and other similar agency records. Other records such as news articles, private databases may still have expunged records.
If you have had records expunged, you do not have to disclose such records on employment, credit, or other applications. However, there are certain exceptions, such as when you are applying for a position engaging in the prevention, detection, investigation, prosecution, or incarceration of persons in violation of the law. Expunged records even though publicly inaccessible may disqualify you from a job working with children, older persons, or developmentally disabled persons.
How to Seal a Record in West Virginia
West Virginia only offers record sealing for juveniles charged with a delinquency or status offense. These records are sealed by the court to protect the rights of the juvenile when they reach adulthood. The records of juvenile proceedings conducted under Chapter 49 of the state code are sealed:
- One year after the juvenile's 18th birthday; or
- One year after personal or juvenile jurisdiction of the court is terminated, whichever is later, pursuant to Section 49-5-104 of the West Virginia Code.
However, the records of a juvenile proceeding transferred to criminal jurisdiction can only be sealed under any of the following circumstances:
- The juvenile was acquitted
- The juvenile was found guilty of an offense other than the offense upon which the waiver or order of transfer was granted
- The offense upon which the waiver or order of transfer was granted is subsequently dismissed
Unlike many other states, West Virginia does not require you to take any action to seal your juvenile record. Juvenile records are returned to the Circuit Clerk to be kept in a confidential and sealed file, marked as sealed and stored in a secure location accessible only by clerk staff.
Who Can See My Sealed Record in West Virginia?
Sealed records are not open to the general public. The process of sealing gives a legal effect of extinguishing the offense as though it never happened. Upon sealing a juvenile record, it may only be accessed by the order of the Circuit Court.
How to Delete Bankruptcy Records in West Virginia
Bankruptcy is the situation in which a business or person unable to pay their debts files a legal proceeding in a federal court to seek relief from some or all of their debts. Bankruptcy records show up on credit records which are often included in the background checks conducted by employers. Employers are allowed to use credit reports to make hiring decisions as well in evaluating employees for promotion, retention, or reassignment. For instance, if you owe money, an employer may think there is more motivation for you to steal. These and other handicaps create a desire within many persons with bankruptcy records to want to delete such records. However, under the Fair Credit Reporting Act, a credit reporting agency has the right to report any information that is truthful and accurate in your credit report. That includes any record of bankruptcies. Bankruptcy records are open records and can be accessed even through non-FCRA compliant records check services.
If there is inaccurate information on your credit report the FCRA empowers you to dispute such errors and demand that the credit reporting agency conducts an investigation. If the agency determines that the information has been inaccurately reported, the inaccuracy will be removed from your credit report. Otherwise, the bankruptcy public record will only be deleted from the credit report either seven years or ten years from the filing date of the bankruptcy, depending on the chapter you filed. A Chapter 13 bankruptcy is deleted seven years from the filing date because it requires at least a partial repayment of the debts you owe. A Chapter 7 bankruptcy is deleted ten years from the filing date because none of the debt is repaid.
What are Consumer Protection Laws in West Virginia?
Businesses often try many tricks to get consumers to buy their products and services. Consumers have the right to hold companies who engage in unfair trade practices accountable for false advertising, bait and switch tactics, and other deceptive acts and practices. They should also be confident of the confidentiality of any personal information submitted when making purchases. West Virginia have several laws to help consumers combat unfair and deceptive practices of businesses. The state abides by the Federal Trade Commission's Unfair and Deceptive Acts and Practices (UDAP) which prohibits the unfair practices of businesses in the United States.
Under the FTC's UDAP, an act or practice may be found to be unfair where it "causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or competition." A representation, omission, or practice is deceptive if it is likely to mislead a consumer acting reasonably under the circumstances and is likely to affect a consumer's conduct or decision regarding a product or service.
West Virginia also enacted the West Virginia Consumer Credit Protection Act (WVCCPA) to protect consumer debtors from abusive or unfair credit practices. The Act is intended to:
- Increase the availability of consumer credit by raising interest rates and move toward equalization of rates available to consumers whether they borrow the money from a lender or buy the goods on credit from a seller
- Regulate the rate of finance charges allowed for consumer credit transactions by prescribing rates and rules for computation
- Regulate those businesses which make small consumer loans, and which were formerly regulated by the small loan act
- Protect consumers who purchase goods or services on credit or through consumer loans from deceptive selling techniques, unconscionable contract terms, and undesirable debt recovery and collection practices Protect consumers who purchase goods or services for cash or credit and give them remedies for defective or shoddy goods and services and unfair and deceptive selling practices.
West Virginia also has a Data Breach Notification Law which requires:
- Any individual or entity that owns or licenses computerized data that includes personal information to give notice of any breach of the security of their system to any resident whose unencrypted and unredacted personal information was compromised during the breach
- If an entity is required to notify more than one thousand persons of a breach of security, the entity shall also notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on a nationwide basis.
Under the Data Breach Notification Law, the Attorney General has exclusive authority to bring an action. No civil penalty may be assessed in an action unless the court finds that the defendant has engaged in a course of repeated and willful violations of the law. A civil penalty must not exceed $150,000 per breach of security of the system or series of breaches of a similar nature that are discovered in a single investigation.
Other consumer protection laws in West Virginia include:
- West Virginia Antitrust Laws
- West Virginia Identity Theft Laws
- West Virginia Telemarketing Fraud Laws
- West Virginia Lemon Laws
- West Virginia Pyramid and Ponzi Schemes Laws
How to Delete Lien Records in West Virginia
A lien is a claim on a property or item in order to ensure payment of a debt. There are different types of liens including property lien and tax liens. A property lien can be used to collect a court judgment. A judgment lien in West Virginia will remain attached to the debtor's property for ten years. The State of West Virginia will file a lien when a taxpayer has unpaid taxes due the State of West Virginia that are no longer subject to administrative or judicial review. The tax lien ensures that the State of West Virginia is given priority as a creditor before any financial transactions can take places such as property or the use of a property as collateral for loans. Liens are a matter of public record.
Although the West Virginia Tax Department does not report liens to credit agencies, lien records can be obtained by credit agencies on their own. Liens can lower a person's credit score and impact the chance of loan approval. Therefore, many residents may desire to have a lien record deleted. West Virginia makes no provisions for deleting lien records. The easiest way to get a lien removed is to pay off the debt owed directly. If that is not possible, the debtor may also negotiate with the lienholder to settle the debt by paying a smaller lump sum to release the debt. A tax lien created under the West Virginia Code Section 11-10-12 continues until:
- the liability for the tax, additions to tax, penalties, and interest is paid, or
- the expiration of 10 years from the date the tax, additions to tax, penalties, and interest became due and payable pursuant to a finalized assessment under West Virginia Code Section 11-10-8, or the expiration of 10 years from the date the tax return was filed showing a balance due, whichever is later.
However, under certain conditions such as bankruptcy or pursuant to an agreement between the taxpayer and the State Tax Department, the lien may be extended.
You can search Uniform Commercial Code (UCC) lien records through the West Virginia Secretary of State website. You can search property liens in West Virginia by contacting the local county recorder's offices. You may be required to pay a nominal fee to conduct a search.