Supreme Court to Hear VA FOIA Test

us_supreme_court_justicesBy Kathryn Watson | Virginia Bureau

WASHINGTON, D.C. — With the highest court in the land as the regal backdrop, the Old Dominion is now center stage in a national drama that will likely determine citizens’ rights to public information in all 50 states for decades to come.

The nine U.S. Supreme Court justices fired questions in oral arguments on Wednesday as attorneys debated a case challenging the constitutionality of a “citizens-only” provision in the commonwealth’s Freedom of Information Act.

The 1968 law — challenged by a California businessman and Rhode Island man embroiled in a child-support battle against Henrico County, Va. — allows state and local governments to deny access to public records to out-of-state residents. Virginia, Arkansas and Tennessee are the only three states that limit such access to their own residents.

Now the question of whether states can differentiate between their own residents and the rest of the country in sunshine laws is wrapped up in the Virginia-birthed case of McBurney v. Young.

“How do you justify that discrimination?” were the first blunt words from Justice Sonia Sotomayor when Earle Getchell Jr., solicitor general of Virginia, rose to defend the state’s law.

But justices picked apart both sides’ arguments, sometimes clearly playing devil’s advocate, and sometimes offering insights into where they may land their opinion in the weeks ahead.

“If you’re not part of the political community, then you don’t fall under FOIA,” Justice Ruth Ginsburg remarked as Deepak Gupta, the attorney arguing against the law, made his points.

Click here to read the transcripts of Wednesday’s oral arguments.

The case began when Roger Hurlbert, a California business owner, and Mark McBurney, a Rhode Island resident, requested public records from Virginia.McBurney, formerly of Virginia, wanted information from the Division of Child Support Enforcement in a case against his ex-wife, who defaulted on child support obligations. Hurlbert called Henrico County officials for property-assessment information for his business, which sells data to private clients.

Both were denied access, and both sued, facing Nathaniel Young, deputy commissioner and director for the Virginia Division of Child Support Enforcement, in the case McBurney v. Young.

But the courts had conflicting opinions. The Fourth Circuit sided with the Virginia law, while the Third Circuit struck it down.

Meantime, dozens of open-government and news organization around the country have rallied around the broader cause of government transparency, saying the case’s outcome will ripple beyond Virginia’s borders.

“If the court strikes (the law) down, then they’re saying that right of access is somehow constitutionally guaranteed,” Megan Rhyne, executive director for the Williamsburg-based Virginia Coalition for Open Government, told “That would be hugely significant. And that would mean that every citizen would have some sort of constitutional right to access public records.”

But if the justices deem all out-of-state restrictions legitimate, open-government advocates fear even the 47 states with sunshine laws friendly to non-citizens will restrict access.

“If it’s OK to discriminate against requesters who are coming from out of state, it invites other states to do the same thing,” said Leah Nicholls, an attorney for Public Justice, a public interest law firm in Washington, D.C., that has argued against the law.

The Virginia restriction concerns open-government advocates both on the principle of transparency and on the practicality that, in the 21st Century, people are more mobile and more interactive with governments around the country.

“The policy of Virginia is that, what happens in Virginia government stays in Virginia,” said Bill Maurer, an attorney with Institute for Justice, another group fighting the law. “That’s simply an unrealistic viewpoint in an interconnected country as large as ours.”

If restrictive laws like Virginia’s aim to block data miners and other big commercial requesters from out of state, that argument doesn’t hold water, Nicholls said. Big businesses can simply hire someone who lives in Virginia to make the request on their behalf, and that’s exactly what they do, she asserted.

Nicholls said the Virginia law gives local and state governments the ability to pick and choose which out-of-state requests to grant.

“Localities absolutely have policies of favoring some requesters from out of state over other requesters from out of state,” Nicholls said. “Giving them the discretion to choose who gets access to records and who doesn’t is problematic for I think obvious reasons.”

Joseph Rapisarda, the attorney for Henrico County, said his county “consistently” relies on the citizens-only provision and denies all out-of-state requests to better serve Virginians.

“I don’t want to tell you that they (FOIA requests) are budget-breaking to Henrico County, but just in the flow of government, we have plenty that we provide to our citizens, and we would rather serve them,” Rapisarda told “And unless it’s unconstitutional not to provide it to the foreign citizen, that’s our preference.”

Nicholls said the cost argument doesn’t hold much weight, since government agencies can recoup the full costs of producing the documents, including labor.

By serving public records to only its citizens, Virginia may be working against its own interests, Maurer said.

“Sometimes, when you have somebody’s whose rights are being violated, or who thinks their rights are being violated, a public records request — a fulfilled public records request — would demonstrate that that’s not the case. And so, what they’re doing is actually inviting litigation,” he said.

But Rapisarda said the law is about transparency — transparency for Virginians. And while he understands the argument to expand access, ultimately, the law rests in the hands of state legislators, he added.

“This is a matter of legislative policy that really the General Assembly decided, not Henrico County,” Rapisarda said.

Delegate Mark Keam, a Democrat from Fairfax, tried to expand the Virginia law to include all U.S. citizens in this year’s legislative session. His bill failed. Virginia’s Freedom of Information Advisory Council, a state agency, is looking to re-craft and reintroduce the bill for the 2014 session.

“The fact that it’s been at the Supreme Court I hope will give them (Virginia’s council and legislators) the signal that, this is not a trifling matter,” Rhyne said.

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