Transparency Watch

Analysis: Supreme Court ruling a regressive one for access laws

In a disappointing unanimous decision yesterday, the U.S. Supreme Court ruled that states can ignore public record requests from non-residents.

This is one of the most regressive, backward rulings the U.S. Supreme Court has issued on access laws for some time. Two reasons make this particularly alarming:

  • The court continues to look at public records as commodities, like lumber or turnips. The bulk of the case came down to whether the Virginia law harms business interests for those buying and selling information from outside the state. The court completely ignored the 76-page amicus brief submitted by the Reporters Committee for Freedom of the Press, signed by 53 news organizations, that outlined in detail how public records are needed for nationwide projects that provide context and lead to change. While public records are bought and sold, their primary purpose is to help people self-govern in their own communities, states and nationally.
  • The court was particularly insistent on making it clear that access laws are a luxury, unnecessary before the bulk of them were passed in the 1960s, and relatively unimportant today. Throughout the opinion the court reiterates that there is no constitutional or common law right to access public records – that it is a statutory right. While that is true, the court neglected to look at the implied right to access handed down in rulings and the changing nature of the world. Many nations are declaring the right to government information a fundamental human right, bolstering their public access laws far beyond anything we have in the U.S. now. We have fallen behind Serbia, Liberia and Mexico. The latest ranking puts U.S. access laws as 40th out of 93 countries studied, and dropping. (http://www.rti-rating.org/)

It’s imperative journalists fight back. Just because the court issued this backward opinion doesn’t mean states have to follow it. They may enact statutes allowing non-residents access to their public records, as most states do already. If you live in a state that excludes non-residents (Alabama, Arkansas, Delaware, Georgia, New Jersey, New Hampshire and Tennessee), get the laws changed through your press association.

Also, if you live in a state that excludes non-residents from accessing records, sign up as a MuckRock State Volunteer to help people acquire documents (https://www.muckrock.com/).

Don’t let this ruling get in the way of great reporting. Hold the line!

David Cuillier is director of the University of Arizona School of Journalism and president-elect of the Society of Professional Journalists. He is co-author, with Charles Davis, of “The Art of Access.” He writes the "FOI Files" column for The IRE Journal.

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