The U.S. Supreme Court on Monday unanimously upheld the Virginia Freedom of Information Act provision allowing state and local governments to deny record requests from out-of-state residents.
The decision came two months after oral arguments in the case, which is rooted in Henrico County.
Open government advocates called Monday’s decision in McBurney v. Young “a stunning blow,” while the Virginia Attorney General’s Office called it “a win for Virginia’s taxpayers.”
The decision affirms FOIA provisions in six states that allow state and local governments to block records requests made by residents of other states.
The case is tied to a 2008 request submitted to Henrico County. California resident Roger Hurlbert submitted a FOIA request with the county as part of his business collecting real estate records for clients.
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Henrico’s real estate assessment office, under director Thomas Little, denied Hurlbert’s request because he was not a Virginia resident.
The challenge centered on two clauses in the U.S. Constitution: Privilege and Immunities, which prevents state discrimination toward residents of other states, and the Dormant Commerce, which prevents states from regulating interstate business.
The U.S. Supreme Court voted 9-0 upholding the 4th Circuit of the U.S. Court of Appeals’ opinion saying Virginia’s FOIA laws had only an “incidental effect” on Hurlbert’s business, and that the law was not intended or designed to regulate or block interstate commerce.
The high court justices were also not convinced that access to information is a “fundamental” right protected by the Constitution.
“The Constitution itself is (not) a Freedom of Information Act,” the U.S. Supreme Court opinion, written by Justice Samuel A. Alito, said in reference to a 1978 First Amendment case, Houchins v. KQED Inc.
The opinion also pointed out that the state provided most of the information Hulbert sought under the Government Data Collection and Dissemination Practices Act.
William Maurer, executive director of the Institute for Justice, said in a statement that nonresidents’ rights related to owning property, investing in a business or even driving through a state are affected by other state governments’ decisions and therefore deserve more protection.
The decision “allows state and local governments to hide from those affected by their decisions simply because they do not have residency. This sort of protectionism is exactly what the Privileges and Immunities Clause was designed to prevent,” he said.
Richard Varn, executive director of The Coalition for Sensible Public Records Access, said that in the Information Age, it should be obvious that the need for information access cannot be localized.
“It surprised me that no one understood … information as a vital national resource,” Varn said of the justices. The court, he said, was operating under an “antiquated notion that information citizenship could be local.”
States’ Freedom of Information Acts, enacted in the 1970s, were intended to promote transparency or “government in the sunshine,” as Justice Antonin Scalia said during oral arguments in February.
Assistant Henrico County Attorney Ben Thorp said he agrees that access to information is good. But he argues that out-of-state FOIA requests, which are typically much larger than in-state requests, take staff away from responding to constituent concerns.
“Some light is good and we’re happy to do it, but there’s got to be some line because it can be very time-consuming,” Thorp said. “The benefit for local government is not being obligated under the tight timelines that FOIA requires and the sweeping coverage for out-of-state citizens.”
Attorney General Ken Cuccinelli said in a statement that out-of-state requesters do not contribute to the gathering and maintenance of public records and that, therefore, Virginia is justified in denying access under FOIA.
“FOIA is a service meant to ensure accountability to the commonwealth’s citizens,” he said, adding that “Virginia taxpayers should not be required to subsidize FOIA requests from nonresidents.”
University of Richmond School of Law professor Kevin Walsh said the court’s unanimity brought about a quick decision. Now that the U.S. Supreme Court door is closed, advocates of open government can move forward only through state legislatures.
“After this case, if nonresidents get access to Virginia records, it will have to be because the General Assembly decided to give it to them,” he said.