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Supreme Court: No fundamental right to public records

May 4th, 2013 · 2 Comments

In a unanimous decision criticized by open government advocates, the U.S. Supreme Court this week said a Virginia law blocking non-residents from using the state’s freedom of information law does not violate the constitution.

The decision in the case of McBurney v. Young, as well as other case documents (including various supporting briefs by transparency groups), can be found here.

Although the decision can be read narrowly, information advocates worry about the court’s dismissal of any “right to know.”

…the right to access public information is not a “fundamental” privilege or immunity of citizenship.

The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws. See, e.g., Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 40. Moreover, 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.” Baldwin, supra, at 388. Pp. 10–12.

Here are some of the reactions to the decision.

From Watchdog.org:

“It said basically we don’t think freedom of information is all that important,” said Kevin Goldberg, counsel for the American Society of Newspaper Editors — one of the dozens of journalistic, transparency and commercial groups that fought against the Virginia law in court.

As Alito pointed out in the Supreme Court’s opinion, there are plenty of ways to get around the Virginia law. Non-residents can and often do recruit someone in state to make their requests. And Virginia oftentimes gives records to out-of-state residents — it just doesn’t have to by law.

From IRE:

Already, discussion is happening amongst journalists, including on IRE’s NICAR Listserv, about workarounds for out-of-state restrictions, such as having a community of inter-state journalists who can file requests on each other’s behalf. Such arrangements would further complicate the process of negotiating for records and pose dilemmas for reporters dealing with exclusive stories that require records from those states.

Rhyne said she was unaware of any service that offered FOIA requests on behalf of out-of-state citizens, but added that in most cases requestors can find workarounds. For that reason, and because Virginia’s law provides for out-of-state media who publish in-state, such as The Washington Post, she does not expect the court decision to have a major local impact. The residents-only provision simply adds another roadblock to some citizens and reporters when dealing with a law that already has its shortcomings.

Citizens for Responsibility & Ethics in Government called it “a blow to transparency.”

The Supreme Court’s exceedingly myopic view of the role state documents play in national issues is entirely out of touch with reality. As the line between state and national politics increasingly has blurred, state records play an even greater role in shedding light on candidates for national office. CREW has used Florida’s state FOIA law to obtain information about any number of federal officials, including David Rivera, who was subject to a state criminal investigation.

Moreover, as the amicus brief filed by CREW and others pointed out, Virginia’s records are useful in a host of other contexts, from medical research to genealogy, that are not cabined by state boundaries. Indeed, for those of us living in the Washington, D.C. area, the boundaries between Virginia, Maryland, and the District of Columbia are nearly invisible.

From the Electronic Frontier Foundation:

It’s a false assumption that only people living inside a state have an interest in how that state operates. A state can have a direct and tangible impact on the citizens of another state, whether through sending inmates to out-of-state private prisons or meeting with out-of-state corporations to entice them to relocate to a more favorable tax climate. The public also has an interest in understanding policies in a national context. Case in point: EFF and Muckrock’s “Drone Census.” This ruling directly affects our ability to compile a comprehensive database of unmanned aerial vehicle programs by local law-enforcement agencies across the country. (On a related note: In one case, we only learned of a California county’s drone plans through a records request filed in Washington state.)

Here’s another example of why state affairs have national relevance: Virginia officials have a tendency to become federal officials, dating as far back as George Washington and Thomas Jefferson. In modern years, the tradition has continued with, most recently, Gov. Jim Gilmore running for the Republican presidential nomination in 2008. Current Virginia Gov. Bob McDonnell is frequently named as a prospective contender in 2016. It’s hard to argue that vetting a presidential hopeful’s executive experience is not a “need” for non-Virginians. Democracy would be poorly served if only Virginia-based news outlets were able to access a presidential candidates’s records.

Also check out On the Media, including an interview with Mark McBurney, one of the petitioners in the case, and Mark Caramanica, Freedom of Information Director for the Reporters Committee for Freedom of the Press.

And then there’s a great column from the Virginia Coalition for Open Government (“My public record: I’m mad as heck at McBurney opinion“).

I wish all nine of you could all step into my world and hear from the people I hear from.

– A New Jersey contractor who lost a bid for a Virginia job was denied his request to view the winning bid even though the contractor could use the bid to prepare a better bid in the future that could save the government money.

– The non-custodial parent of a child was refused information from a police department about her child because she lived in Colorado.

– A graduate student from an Alabama university was unable to get election records from Virginia to complete a nationwide research project on voting patterns.

– An academic in Massachusetts was denied records from Virginia that he was able to obtain from other states simply because he was from out of state.

Those are real examples. But what about these possibilities?

- The Navy captain who has been stationed in Norfolk and is going to retire here but who is doing a final stint on a project in Florida would like information about the school his kids will be attending when they return.

– The lady who grew up in Richmond but got married and moved to Indiana. Her ailing mother is in Richmond and needs to go into nursing care, and the woman would like nursing home inspection records to inform her choice.

– The family relocating from California to Roanoke would like to see the city’s comprehensive plan to determine the potential land use around the neighborhood where he’ll be living.

– The citizen of Bristol, Tenn., has concerns about the bridge he travels over every day to work in Bristol, Va., and he’d like to view bridge inspection records.

I don’t think the opinion the lot of you embraced on Monday gives any thought to just how public records are used day in and day out by everyday citizens who are just trying to make sense of their world and how government is impacting it.

Tags: Court · Politics · Sunshine

2 responses so far ↓

  • 1 Hugh Clark // May 4, 2013 at 4:01 pm

    Salute the new dark ages from Virginia to Hawaii. Hee must be lapping it up.

  • 2 Burl Burlingame // May 4, 2013 at 10:18 pm

    Bright side? Not much of one … Except maybe all those insane demands for Obama’s “real” birth records.

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