The U.S. Supreme Court decided unanimously today that the state of Virginia had the power to restrict public records access to residents of that state. Virginia limits freedom of information requests to its own residents and certain media outlets.
The case reached the court after Rhode Island resident Mark J. McBurney and California resident Roger W. Hurlbert sued Virginia for blocking access to public documents that an in-state resident could obtain.
They contended that the state’s practice violated the Constitution’s Privileges and Immunities Clause and its Commerce Clause. The court ruled that Virginia’s FOIA law “does not regulate commerce in any meaningful sense,” meaning it does not violate the Commerce Clause, and that it does not violate the Immunities Clause, which is meant to prevent the burdening of out-of-state citizens, because the law is “a service that is related to state citizenship.”
Megan Rhyne, Executive Director at Virginia Coalition for Open Government, said she was disappointed by the many references made in the opinion that seemed to give the public’s right to know short shrift.
“I don’t think it actually has a very good grasp on how people use public records day in and day out to make their decisions and take part in the democratic process,” Rhyne said.
She also noted that journalists and advocates for open government fear the ruling will allow other states to do the same in attempts to save time and money.
“That was certainly a concern that was raised when my organization was going to join the amicus brief,” Rhyne said, mentioning that the National Freedom of Information Coalition shared those concerns.
A handful of others states have similar laws, including Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey. Charles Davis, who teaches a class on access to information at the Missouri School of Journalism, said he hopes the ruling won't be interpreted broadly, but that the the court’s decision could be seen as essentially approving the law in those states as well.
“I’m of a mixed mind. My hope is that this is, as it reads, a pretty narrow procedural Commerce Clause sort of ruling and thus will not slop over into other states,” Davis said. “What frightens me about it is that it could inspire other states to see that the Supreme Court has endorsed this kind of residents-only clause. My fear is that it spreads.”
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.
Michael Lee Pope, a reporter for the Alexandria Gazette who has previously reported on Virginia’s access to information laws, said the law could pose a problem in a situation like the Virginia Tech shootings, in which news organizations that don’t typically publish in Virginia would be seeking state records. Pope points out that there are many odd quirks in the Virginia public records law, including the fact that many police records are off limits.
When states are graded on their freedom of information laws, Virginia typically falls somewhere in the middle of the pack. However, according to the recent State Integrity project, Virginia ranked 47 out of 50 states with an overall grade of "F."
The Reporters Committee for the Freedom of the Press offers a look at the ;egal aspects of the case as well, as does the SCOTUS blog.