Kevin Gosztola

April 30, 2013

The Supreme Court unanimously ruled on Monday that Virginia did not have to grant access to public records in the state to non-residents of Virginia under the state’s freedom of information law.

The decision, according to SCOTUSblog, did not break any new ground. It did not “rely upon any sweeping new legal declaration, but simply on the purpose that the Court found behind Virginia’s law.”

Eight states, including Virginia, grant the public access to state agency records under “public information laws” but prohibit non-residents from accessing the records.

The case, McBurney v. Young, involved Mark J. McBurney of Rhode Island, who sought information under Virginia’s Freedom of Information Act (FOIA) because he believed a state agency error had something to do with costing him nine months of child support his ex-wife owed him.

Roger W. Hurlbert of California, the other plaintiff in the case, is the ”sole proprietor of Sage Information Services, a business that requests real estate tax records on clients’ behalf from state and local governments across the United States. A land/title company hired him to obtain real estate tax records for properties in Henrico County, Virginia.” His FOIA request for documents from the Henrico County Real Estate Assessor’s Office was denied.

Much of the decision written by Justice Samuel Alito seemed to rest upon the fact that Virginia taxpayers “foot the bill” for the costs of record keeping so only Virginia taxpayers should have access.

To the extent that the decision would have any implications for the general American public’s access to information, Alito pointed out McBurney was able to get many of the documents he sought under Virginia’s Government Data Collection and Dissemination Practices Act. He also noted that these documents did not reveal “general policy information” on how the state agency had handled his claim related to collecting child support.

Alito drew the following constitutional conclusion that the “right to access public information is not a ‘fundamental’ privilege or immunity of citizenship.” The Supreme Court has recognized ”the Constitution does not guarantee the existence of FOIA laws.” And, ”No such right was recognized at common law or in the early Republic. Nor is such a sweeping right ‘basic to the maintenance or well-being of the Union.’”

“The federal FOIA was enacted in 1966,” Alito wrote. “Virginia’s counterpart was adopted two years later. There is no contention that the nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted.”

Michael Morisy of Muck Rock News, an organization which helps facilitate the filing of FOIA requests by individuals or organizations, reacted, “We strongly disagree with the decision on a number of grounds, ranging from increased discrimination against certain classes of even in-state requesters to the additional burden it puts on every requester.”

“This continued access to information at a state level is incredibly important for both individuals’ rights as well as large-scale reporting process,” Morisy explained. “MuckRock’s Drone Census used requests in all 50 states to shed light on how local law enforcement was quietly deploying drones with little oversight, authorization or policy. This investigation would have been impossible without local requests shedding light on information the federal government was unwilling or unable to give.”

He added, “One of the big stories — about unauthorized drones in Virginia — comes from the very state where this policy was affirmed.”

As boilerplate as this Supreme Court decision might be, the interpretation of the Constitution and whether it guarantees citizens’ access to public information is problematic. It reminds citizens that the Court could likely cite this to deny citizens access to a range of data, documents or records if it wanted at any time in the future.

The Republic has evolved in ways the writers of the US Constitution could not have imagined.

Regardless of whether the founders envisioned public information laws, citizens now have access to information that the elites running the country throughout the first century of the country did not grant to citizens. There are valid arguments to be made that the First Amendment creates some obligation for not just states but the federal government to have laws or mechanisms for citizens to access public information.

This is the archaic view of the Constitution, the view that the Constitution is to be interpreted as those, who wrote it, interpreted the Constitution and not interpreted as a living document. And, this poses a potential problem for the future of public information access (just as this sort of view is an impediment to improving other aspects of government and society).

The decision was specific to Virginia’s law. It does not apply to all states. That does not mean it does not have ramification for the other seven states with this law: Alabama, Arkansas, Delaware, Georgia, New Hampshire, New Jersey, New Jersey and Tennessee. Nor does it mean that this won’t inspire other state governments to try and pass these kind of laws controlling the release of public information.

In the aftermath, Muck Rock is “looking for partners to help ensure transparency and open access are available to everyone throughout America.” The organization, which typically charges users with pro accounts, is giving two users from the eight states with these laws free pro accounts to ensure the organization can continue to request public information from all over America.

The Emergency Election Sale is now live! Get 30% to 60% off our most popular products today!

Related Articles