Reporters Committee surprised by decision restricting Va. government info to residents

The Reporters Committee for Freedom of the Press today expressed surprise and disappointment at the decision by the U.S. Court of Appeals in Richmond (4th Cir.) upholding the constitutionality of a Virginia law that restricts access to state records to people who live there.

Although the Virginia Freedom of Information law provides a limited exception for "newspapers and magazines with circulation in the Commonwealth" and "radio and television stations broadcasting in or into the Commonwealth," it greatly limits access by non-residents. The court rejected the argument that such restricted access to government information is unconstitutional.

The court’s ruling runs contrary to a 2006 decision in the U.S. Court of Appeals (3rd Cir.) that ruled a similar law in Delaware to be unconstitutional.

The ruling also fails to address the arguments raised in a friend-of-the-court brief submitted by The Reporters Committee for Freedom of the Press and 20 media and open government groups. In its brief, the Reporters Committee argued that the limited exemption for journalists in the citizens-only provision unconstitutionally restrains the majority of journalists’ right to pursue their journalistic common calling.

In fact, while McBurney v. Young involves two non-journalists who live outside Virginia, there are serious implications for news gathering by reporters who frequently cover major stories in the Commonwealth or who are seeking to do nationwide stories including information from the state.

"We are simply baffled that the Court failed to even consider the broad implications today's decision has on the media's right to gain access to government information in Virginia,” said Reporters Committee Executive Director Lucy A. Dalglish. “Quite simply, the Court conflated and dismissed our argument to suit its own ends. While Virginia FOI law does provide some limited access rights to certain out-of-state journalists, it effectively forecloses much of the U.S. media. We stood up for the non-local and smaller journalism outfits who do not fit within the citizenship exception. Apparently this Court is unconcerned with their rights."

The appeals court rejected the argument that the citizens-only clause violates the Constitution by barring a state from adopting regulations that discriminate against interstate commerce or out-of-state economic interests.

On the issue of government transparency, the court ruled that the citizens-only provision did not discriminate against such interests in its language, effect, or purpose. In so doing, it looked to the purpose of the FOIA: to increase access to government records and to discourage secret government action. “The VFOIA is wholly silent as to commerce or economic interest, both in and out of Virginia,” the court said.

About the Reporters Committee for Freedom of the Press

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.