**This blog post was written by a non-legal intern and should not serve as legal advice. If one is seeking legal advice they should consult a practicing attorney**
Out of State, Out of Mind
Recently, the US Supreme Court unanimously ruled that non-residents of Virginia are not allowed to take advantage of the commonwealth’s Freedom of Information Act. The decision states that it is not unconstitutional for Virginia to restrict access to government documents to non-residents.
The case started when McBurney and Hurlbert, along with media and data companies, challenged Virginia’s FOIA law under the U.S. Constitution’s Privileges and Immunities Clause which prohibits states from discriminating against citizens out of the state. Hulbert, owner of a real estate company, argued the law restricted him from giving proper information about public real estate assessments to his clients. McBurney, a former Virginian, could not get access to welfare papers for child support that he needed when divorcing his wife.
These two men argued that it is unconstitutional to withhold access to public records especially considering the growing commerce potential. But the Supreme Court disagreed. "We hold, however, that petitioners' constitutional rights were not violated," Justice Samuel Alito said for the court. "By means other than the state FOIA, Virginia made available to petitioners most of the information they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause."
The ruling especially causes problems for all data miners who no longer directly get information from Virginia. This can include all type of American citizens including business owners who need information about other out-of-state businesses, media outlets, citizens in need of police records, and even just a curious citizen looking for answers.
The ruling has proven to be troubling on many levels. First off, the Supreme Court stated that there was no discrimination with regard to the Privileges and Immunities Clause. They quoted, “[W]e reject petitioners' sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right.”
The Supreme Court has read the Privileges and Immunities Clause in a very narrow manner. In the past the Supreme Court has ruled the Clause as a way to “keep the citizens of each state on equal footing with citizens of other states” (Paul v. Virginia (1869)). Why does it now make sense to limit information when the Clause was in the Constitution for all U.S. citizens?
After the ruling, the fear is other states may follow in lead in this lack of transparency. Of the 48 states that have FOIA laws, Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey already have laws restricting some access, and it won’t take long before other states begin wanting to also adopt the policy.
Next, the Supreme Court has underestimated the importance of having access to out-of-state records. The ruling means that journalists or “watchdogs” from other states involved in investigative reporting can no longer access information in cases of alleged misconduct or corruption. And who really wants to go to an online blogger asking if they can get information for you from their state because you can’t get it yourself? The Freedom of Information Laws were adopted to make sure the government stays a transparent entity; thus, all affected by the government should have the right to access its information.
Finally, I do not agree the Supreme Court has justification to limit information for citizens out-of-state. I mean, who is this really helping anyways? People out-of-state can still ask someone in-state to get the information for them while the government will slowly seem less accountable due to lack of transparency. Overall, I think the Supreme Court should have upheld the principles of government transparency and ruled against withholding government information.
2013 High School Summer Intern
Chemerinsky, Erwin. "Chemerinsky: Court Unanimously Wrong on Virginia’s Public Records
Law." Chemerinsky: Court Unanimously Wrong on Virginia's Public Records Law. ABA Journal, 5 June 2013. Web. 17 July 2013.
Holland, Jesse J. "Supreme Court: State Can Block Out Of State Use Of FOIA." Western Journalism. Western Journalism, 29 Apr. 2013. Web. 17 July 2013.
"Virginia Can Block out of State Use of FOIA, Supreme Court Rules." WJLA. WJLA, 29 Apr. 2013.
Web. 17 July 2013.