Appeals court restricts records access for non-Virginians

The U.S. Court of Appeals in Richmond (4th Cir.) today ruled that out-of-state records requesters have no right to receive public records from Virginia agencies. Out-of state news organizations may submit requests, but only if they have circulation in Virginia. Likewise, only radio and television stations broadcasting in or into the state can seek state records.

The ruling upholds the constitutionality of an existing provision in Virginia’s Freedom of Information Act. Two out-of-state records requesters challenged the constitutionality of the law after state and local agencies declined their records requests.

In its ruling, the court rejected the argument that barring access to non-residents violates their rights under the privileges and immunities clause and the dormant commerce clause, which concerns interstate commerce, of the U.S. Constitution.

The court’s ruling runs contrary to – and largely 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 other media and open government groups joined. In its brief, the Reporters Committee argued that despite the limited exemption for journalists in the citizens-only provision, the law unconstitutionally restrains the majority of journalists’ right to pursue their journalistic common calling.

“By narrowly limiting the media representatives eligible for the exemption to only those who work for organizations that circulate newspapers or broadcast their reports within the commonwealth, the exception . . . actually works to hinder access for most journalists nationwide – including the growing number of online journalists,” the media groups argued in their brief.

Mark McBurney and Roger Hurlbert, both residents of other states, filed suit in U.S. District Court in Richmond, Va., against two Virginia agencies after their records requests were denied.

McBurney sought records from the state division of child support enforcement related to a nine-month delay in the agency’s processing of child support papers.

Hurlbert, whose business utilized open records laws nationwide – from agencies such as the Real Estate Assessment Division of Henrico County, Va. – sued to obtain real estate tax assessment records for his clients.

McBurney and Hurlbert unsuccessfully argued on appeal – as they had similarly argued in the lower court – that the citizens-only provision burdened fundamental rights: namely, their rights to equal access to government information and the courts, and to pursue their economic interests. Hurlbert further argued that the provision burdened his right to pursue his profession. Such burdens, they argued, violate the privileges and immunities clause, which prevents states from discriminating against non-citizens’ fundamental rights without a substantial reason.

The court, looking to fundamental rights previously recognized by the U.S. Supreme Court – pursuit of one’s “common calling,” or profession, and access to courts – held that they had not been unconstitutionally burdened. While the court conceded that the law “coincidentally limits a method by which Hurlbert conducts some of his business,” it ruled that the restriction had only an “incidental,” “indirect” and “tangential” impact on his trade.

Further, the court relied heavily on the fact that the FOIA, on its face, “addresses no business, profession, or trade.”

Leah Nicholls, who represented the appellants, said the problem with the law is that it functionally prohibits Hurlbert from practicing his business in Virginia, "not whether it explicitly regulates the trade.”

But Benjamin Thorp IV, who represented Henrico County, said, “I think the effect on him and his business is probably de minimis. He can always get a Virginia citizen to make the request.”

Looking to the appellants’ second asserted right – equal access to courts – the court rejected the appellants argument that the citizens-only requirement unconstitutionally denied them access to the public records they would need to file legal documents in lawsuits against Virginia officials.

“Access to courts has never been interpreted to mean that states must provide individuals with access to public records that may or may not lead to discovery of a potential legal claim,” said the court.

The court declined to recognize any other fundamental rights under the privileges and immunities clause advanced by the appellants, including access to information and advocating for one’s interests.

The court then turned to the argument that the citizens-only clause violated the dormant commerce clause – which bars a state from adopting regulations that discriminate against interstate commerce or out-of-state economic interests – ruling that the 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,” said the court. “At most, it prevents Hurlbert from using his ‘chosen way of doing business,’ but it does not prevent him from engaging in business in the Commonwealth.”

“The reality is that large FOIA requests divert officials from doing the work that they are otherwise charged with doing,” added Thorp, “and the general assembly made the decision that it would balance that fact by limiting those who we have to respond to.”

Nicholls said her clients are still considering whether they will pursue further legal action.