Can states limit public records to residents?

Wednesday, September 19, 2012

The U.S. Supreme Court could determine the constitutionality of state public-record provisions that limit records  requests to residents of that state. Several states — including Virginia, Tennessee, Arkansas, and New Hampshire — limit requests to their residents.

In McBurney v. Young, Rhode Island resident Mark McBurney and California resident Roger Hurlbert challenge the constitutionality of a provision in Virginia’s Freedom of Information Act, which says that only Virginia residents can obtain public records.

McBurney and Hurlbert are appealing an adverse decision by the 4th U.S. Circuit Court of Appeals, which upheld the law. They powerfully present the issue in their petition asking the Supreme Court to hear the case:

“This case presents an important question of constitutional law at the intersection of federalism, freedom of information, and the burgeoning marketplace for public records: May a state constitutionally deny to nonresidents the same right of access to public records that the state affords its own citizens?”

The petitioners have a fighting chance for Supreme Court review because the 4th Circuit decision directly conflicts with a 2006 3rd Circuit decision in Lee v. Minner, which invalidated a similar provision in Delaware’s open-records law. The Supreme Court is more likely to take a case if there is a circuit split.

The petitioners base their legal challenge on the Privileges and Immunities Clause of the U.S. Constitution, which prohibits a state from treating residents of other states in a discriminatory manner. But the case also speaks to fundamental access-to-information issues.

Numerous open-government groups, including Citizens for Responsibility and Ethics in Washington and the National Freedom of Information Coalition, filed an amicus or friend-of-the-court brief asserting that Virginia’s law and others like it are unconstitutional and unfairly bar access to important information by people from other states.

“This case is important for open-government advocates because the ‘citizen’ language is a much-abused discretionary exemption to our public records law,” said Frank Gibson, founding director of the Tennessee Coalition for Open Government, which joined in the amicus brief. “The ‘citizen’ language provides a convenient excuse for agencies to withhold information they do not want out. … Reporters at Tennessee news organizations can’t get certain records from border cities because they may live in Georgia, Mississippi, Arkansas, Kentucky, and Virginia and carry drivers licenses from [those bordering states instead of Tennessee].”

Access to information is vital not just for journalists, but also for the public. Let’s hope that the Supreme Court will address the issue and ensure greater access to information in Virginia and other states that have similar restrictive provisions.

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