By Kathryn Watson | Watchdog.org Virginia Bureau
ALEXANDRIA—Case closed. Virginia can deny records to non-residents without disobeying the U.S. Constitution.
The U.S. Supreme Court unanimously ruled on Monday that a provision in Virginia’s Freedom of Information Act law giving state and local governments the authority to withhold public records from non-Virginia residents is completely constitutional, sending the message to the Old Dominion and the rest of the nation that access to public records isn’t a fundamental right.
“This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws,” reads the opinion written by Justice Samuel Alito.
Virginia is currently one of only three states in the nation with such a residents-only provision, as more and more states have opened their records to all U.S. citizens in recent decades. Arkansas and Tennessee are the other two outliers.
But open records advocates fear the Supreme Court’s ruling validates the practices of an already tradition-entrenched commonwealth, and gives other states implicit permission to further restrict access to their records.
“It said basically we don’t think freedom of information is all that important,” said Kevin Goldberg, counsel for the American Society of Newspaper Editors — one of the dozens of journalistic, transparency and commercial groups that fought against the Virginia law in court.
As Alito pointed out in the Supreme Court’s opinion, there are plenty of ways to get around the Virginia law. Non-residents can and often do recruit someone in state to make their requests. And Virginia oftentimes gives records to out-of-state residents — it just doesn’t have to by law.
“Hopefully, Virginia’s legislators will take another look at the restriction in light of this decision, and perhaps change it,” said Ken Bunting, executive director of the National Freedom of Information Coalition, in an email. “And hopefully, this holding will not embolden other states to enact such restrictions.”
Still, those are only hopes.
Goldberg fears that, nationally at least, restriction could become a reality.
“Does it embolden other states to take actions, whether they are enacting a similar citizens-only provision or other steps? Probably,” Goldberg said.
MCBURNEY V. YOUNG
The case now known as McBurney v. Young 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. The Fourth Circuit approved the Virginia law, while the Third Circuit struck it down.
Open records advocates say Virginia’s FOIA law is problematic for various reasons.
For one thing, it blocks even those who call the Old Dominion home from obtaining documents. Someone who grows up in the state and moves, or still has elderly parents in the commonwealth, for instance, isn’t guaranteed access.
And in today’s mobile and interconnected world, access to information beyond state borders is more needed than it was in the past, said Mark Caramanica, freedom of information director for the nonprofit Reporters Committee for Freedom of the Press.
“The Court failed to recognize how important access to information is to a modern, interconnected society where events that shape citizens’ lives know no geographic borders,” Caramanica said in an emailed statement. “As we argued in our amicus brief, journalists often need access to records in all 50 states in order to comprehensively inform the public on important matters.”
Open government advocates are at odds with Republican Virginia Attorney General Ken Cuccinelli, who says Virginia records should remain with Virginia taxpayers.
“We appreciate the unanimous decision of the justices,” Cuccinelli said in a statement. “FOIA is an important tool to ensure open government. But responding to FOIA requests is a financial burden on Virginia taxpayers, because while state employees are looking through documents to respond to requests, they can’t do the normal work for the citizens of the commonwealth they are paid to do.
Open government advocates, however, have long argued that Cuccinelli’s claim is a faulty one, as Virginia state agencies can charge anyone the full price tag of labor, printing and other costs associated with FOIA requests.
TRANSPARENCY AT A CROSSROADS IN VIRGINIA
The Supreme Court’s affirmation of Virginia’s record restrictions comes at a critical time for Virginia, said Megan Rhyne, executive director of the Williamsburg-based Virginia Coalition for Open Government.
“I really think that it’s an important time right now,” Rhyne said. “There’s been a real back-peddling of access to information. And I’m hoping that maybe this will spur some people to realize that if we don’t exercise our rights under these laws, that we’re going to have less and less access.”
This year, the Legislature gave legislative aides the same FOIA exemption privileges as their lawmaker bosses, and exempted the Nuclear Energy Consortium from the law altogether. Public-private partnerships, which require few documents to be made public but still use public dollars, are proliferating.
Now, the highest court in the land seemingly affirms Virginia’s inclination when it comes to transparency — complacency and opacity, said Delegate Mark Keam, D-Vienna.
Keam filed a bill this legislative session to open Virginia’s public records to all U.S. citizens.
“I think Virginia is a conservative state where we just don’t like change,” Keam said. “We’ve done things a certain way for so long, why rock the boat and change things?”
Tom Fitton, president of government watchdog Judicial Watch, called Virginia’s law an “embarrassment” to the home of James Madison, who said freedom and access to information have to go hand-in-hand.
“They kind of need to figure out their history,” Fitton said.
But for the public to access information, that information has to be public first.
Keam pointed to Gov. Bob McDonnell’s failure to report a $15,000 wedding catering gift from Star Scientific CEO Jonnie Williams to McDonnell’s daughter. Virginia doesn’t require office holders to report gifts to family members.
The time to close those loopholes may be now, Keam said.
“In light of Gov. McDonnell’s situation, questions come up,” Keam said. “… I think that’s a legitimate concern.”
FOIA FIGHT CONTINUES
The debate over Virginia’s FOIA law isn’t over.
“This is a wakeup call to really reflect and see where we are,” Keam said.
Virginia’s Freedom of Information Advisory Council, a state agency that makes recommendations on FOIA-related laws and issues, will hash out his bill on May 20. And the bill will almost certainly return before lawmakers in 2014.
The question is, will Virginia lawmakers — and the next governor elected by Virginians in November — match their actions with their words when it comes to transparency?
It all comes down to the leader living in the executive mansion, Keam said.
“I think it’ll depend on how much the next governor pushes,” Keam said.
Kathryn Watson is a reporter for the Watchdog.org’s Virginia Bureau, and can be reached at firstname.lastname@example.org. or (571) 385-0773.