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Supreme Court FOI Decision Foolish and Shortsighted

by and

Yesterday, the U.S. Supreme Court upheld a Virginia law that generally prohibits non-Virginians from making use of its Freedom of Information law. As part of its decision in McBurney v. Young, the Court held that the Constitution's Article IV "Privileges and Immunities" clause does not extend to a non-Virginian's right to access public information on equal terms with Virginia citizens.

The Constitution says that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," and the clause was intended to prevent a state from treating citizens of another state in a discriminatory manner. This ruling allows states like Virginia, Delaware, New Hampshire, and Tennessee* to continue to make the benefits of their freedom of information laws available only to their citizens.

The Court squares this logical circle by concluding that the access to public information made available under state FOI laws are not "basic to the maintenance or well-being of the Union," and thus not a "fundamental" privilege or immunity the Constitution was intended to protect. It baldly states, without evidence, that "there is no contention that the Nation's unity founded in [the absence of FOIA laws prior to the 1960s], or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted."

We think the Third Circuit Court of Appeals had a much more compelling argument in its opinion that was overturned by the High Court. It held that access to public records is a right protected by the Privileges and Immunities clause "because political advocacy is an 'essential activity' which 'bear[s] upon the vitality of the Nation as a single entity,' ...  and because access to public records is necessary to the ability to engage in that activity."

Who is harmed by this decision? Petitioner Mark McBurney, a former Virginia citizen, made a FOIA request after his ex-wife defaulted on her child support payments. He sought to show that the state was slow in filing a petition for child support on his behalf, and asked for documents regarding how the state processed the claim. While Virginia ultimately provided some information under another statute, it did not provide to him general policy information about how the agency handled claims like his. This undermine his case for back-support. Also harmed is petitioner Roger Hulbert, who has a business that obtains real estate tax records.

While there is an exception to Virginia's law that allows out-of-state news media organizations to request information so long as they broadcast or circulate within Virginia, it's likely that reporters will feel the pinch as well. Websites like Muckrock are already working to mitigate this problem, but it will still make reporter's lives harder. Some of the investigative work done by non-profits like the Sunlight Foundation, and a fair amount of academic research, will also become an order of magnitude more difficult to perform.

In short, the Supreme Court has made efforts by citizens and corporations to access public information much more difficult. From now on, non-citizens will have to go through in-state intermediaries to make Freedom of Information requests, adding significant cost and expense. Some requests may be unable to be routed through intermediaries, and will be frustrated. Corporations, which are the predominant users of FOI laws, will have significant marginal costs added to their businesses.

There are also practical questions. For example, the Court discussed how many of these records are available through means other than state FOI laws. It said "requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens' ability to own or transfer property in Virginia." Does this mean that states that do not put information online could then be in violation of the Constitution? What documents are essential and must be online? Are courts required to do some kind of test to see whether the burden is too great? What a mess.

The public's right to know was at the forefront of the founder's minds. James Madison wrote that "a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." The founders of our great republic, many of whom were Virginians like Mr. Madison, understood the importance of public access to information even while the means (or the need) for our kind of FOI laws were centuries away.

Our states are supposed to be the laboratories of democracy, with people and information flowing easily among them. Would the Court hold it is permissible for states to limit access to their websites to people only with an in-state IP address? Or to people who promise not to act as intermediaries? Should we not learn from one another? The Court has given its blessing to efforts that drive a wedge between Americans. How foolish and shortsighted.

*A full list of states that limit their FOI laws to state citizens: Alabama, Arkansas, Delaware, Georgia, New Hampshire, New Jersey, Missouri, Tennessee, and Virginia.