Out of state, out of luck

May 2, 2013 01:30

By Mike Cavender, RTDNA Executive Director

The U.S. Supreme Court’s ruling this week to uphold a Virginia law limiting out-of-state residents’ access to public records is an example of legal logic leading to a disappointing decision.

Here‘s the background: The Virginia Freedom of Information Act, passed in 1968 (only two years after the federal version) holds that only “citizens of the Commonwealth” have the right to inspect and copy all public records. Pretty limiting, I would say, especially if you happen to be residing anywhere other than Virginia and need or want access to that state’s documents.

RTDNA joined other journalism groups in a “friend of the court” brief supporting a challenge to this law from individuals in California and Rhode Island. We argued that both the public and the press have a broad right of access to such records, regardless of whether that request crosses state lines. This was an important case because, in addition to Virginia, several other states have similar restrictions contained in their FOIA laws.

But in a unanimous decision, the high court didn’t see it that way. Justice Samuel Alito wrote the Court’s opinion, saying that only “fundamental” privileges need to be honored across state lines—a reference to the basic tenant of the plaintiff’s argument that the law violated Article IV of the Constitution. That article reads, in part, that the “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Access to government records is not among those “fundamental” rights, according to the Court. “This court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws,” Alito wrote in the opinion.

Earlier, Delaware, which had similar restrictions in its law, lost a ruling in the U.S. Court of Appeals, which said those restrictions were not valid.  The Delaware legislature later modified its FOIA law to allow for universal access but the Supreme Court’s decision, essentially, now makes that unnecessary.  Here’s hoping Delaware legislators don’t change their minds!

Alabama, Arkansas, New Hampshire, New Jersey and Tennessee all have citizenship requirements as part of their FOIA laws, so from a legal standpoint, they’re in the clear now, too.

In today’s age of information which is no longer limited by boundaries of any kind, it’s unfortunate to see a decision like this one. We need more transparency, not less. And we need to constantly look for ways to achieve that goal. The Supreme Court’s decision here puts up another roadblock in those efforts. It seems the best way now will be on the legislative side to encourage lawmakers to liberalize their thinking and modify the existing laws.

But until that happens, if you want access to records in these states (and you don’t live there), you’d do well to consider partnering with someone who does!