Requesters challenge Virginia open records law

Hannah Bergman | Freedom of Information | Feature | February 3, 2009

Two plaintiffs are challenging Virginia’s Freedom of Information Act in federal court there because it requires requesters to be citizens of the state.

The plaintiffs, residents of California and Rhode Island, represented by Georgetown’s Institute for Public Representation, filed suit against Virginia claiming the law’s citizen-requirement violates their constitutional rights.

Mark McBurney, of Rhode Island, is seeking records related to his own efforts to recover child support he is owed. Roger Hurlbert, of California, is seeking property assessment records related to his business.

Both argue Virginia’s requirement that FOIA requesters be Virginia citizens violates the privileges and immunities clause of the Constitution. That provision requires states to treat citizens of other states with the same rights under law as their own citizens.

As a result, the plaintiffs in the lawsuit argue, Virginia's provision is unconstitutional.

Delaware’s open records law had a similar provision, which the U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned in 2006.