AP Photo/South Bend Tribune James Bosher
When the U.S. Supreme Court handed down its unanimous decision in McBurney v. Young in April, open government advocates had little to be excited about.
Not only had the Court upheld a provision of the Virginia Freedom of Information Act that allows the state to ignore records requests from non-residents, it had also definitively rejected arguments that the U.S. Constitution grants citizens a right to access government records.
The Court’s ruling also meant that a handful of other states across the country with citizenship requirements in their open records laws – including Alabama, Arkansas, New Hampshire, New Jersey and Tennessee – could also continue to bar out-of-state requesters from accessing public records.
Yet despite the outcome, open government advocates and attorneys who worked on the case appeared mixed on the potential impact the decision would have on other states’ public records laws.
On the one hand, some fear that the 9-0 ruling in favor of Virginia could embolden some state lawmakers to restrict access to records in the era of tight state budgets.
At the same time, others said that the decision is unlikely to lead states to implement restrictions similar to Virginia’s, meaning that the impact of McBurney may ultimately be limited to states that have similar restrictions on the books and actually enforce them.
And for non-resident media companies, the presence of a limited exemption for media who broadcast or circulate in Virginia likely means that agencies will continue to process their requests.
But regardless of the impact McBurney has on state public record laws in the future, open government advocates all seemed to agree that the decision was a serious setback for the transparency movement for at least two reasons.
First, the court failed to understand the political and economic value of government information. Second, the court’s opinion also took a dim view of how, in the digital age, the importance of state government information does not stop at state lines.
Court: No constitutional right of access
The Supreme Court’s decision ends a constitutional challenge brought by plaintiffs Mark J. McBurney and Roger W. Hurlbert, who argued that the citizenship restriction in Virginia’s public records law violated the Privileges and Immunities and Dormant Commerce Clauses of the U.S. Constitution.
Generally, the Dormant Commerce Clause has been interpreted to prevent states creating economic regulations that hamper national commerce. The Privileges and Immunities Clause, on the other hand, has been interpreted to protect non-residents from state laws that discriminate against out-of-state residents.
McBurney, a Rhode Island resident, sought records from Virginia’s Division of Child Support Enforcement related to its collection of child support payments from his ex-wife. Hurlbert, a California businessman, sought real estate tax records from a Virginia county as part of his data collection business. The pair filed suit after Virginia denied both requests on the grounds that neither McBurney nor Hurlbert was a Virginia citizen.
Both a federal district court and the U.S. Court of Appeals in Richmond, Va. (4th Cir.) ruled that Virginia’ citizenship requirement was constitutional. In contrast, in the 2006 decision in Lee v. Minner the U.S. Court of Appeals in Philadelphia (3rd Cir.) struck down a citizenship requirement in Delaware’s public records law, finding that it did violate the Privileges and Immunities Clause.
During oral arguments in McBurney, Supreme Court justices grilled both sides, expressing skepticism of whether the law violated the U.S. Constitution while also pressing Virginia to justify its decision to discriminate against non-residents. In particular, Chief Justice John Roberts seemed to reject Virginia’s central argument that processing non-resident requests cost the taxpayers additional money.
“You’ve got to maintain and generate the database anyway for Virginia citizens who are going to ask for [public information],” he said. “This is not an added cost.”
Despite the animated back-and-forth during the arguments, the Court issued a unanimous opinion that the state’s restriction did not unconstitutionally discriminate against the plaintiffs or interfere with their business dealings.
Specifically, the Court ruled that the ability of citizens to access government information is not a fundamental right protected by the Privileges and Immunities Clause of the Constitution because it did not materially interfere with the plaintiff’s ability to own or transfer property, access Virginia courts, pursue a profession or access public information.
“We cannot agree that the Privileges and Immunities Clause covers this broad right,” Justice Samuel Alito wrote for the court. “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”
Deepak Gupta, McBurney and Hurlbert’s attorney, said he was mystified by the decision, particularly given how the court failed to understand the ways in which information flows across state lines.
“These laws are hard to justify and most states have abandoned citizens-only policies because they are out of step with the modern information economy,” he said.
Decision’s immediate impact unclear
Although the Supreme Court’s decision was a setback for the plaintiffs and for open government advocates, opinions are mixed as to what the impact of McBurney might be, particularly for states that do not presently discriminate against non-resident requesters.
Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, which advocates on many state and federal open government issues, said the decision could be very harmful in states that are feeling the economic pinch as they try to balance their budgets. Lawmakers in those states may believe that they can cut costs by prohibiting non-residents from filing records requests.
“I would think that if a state starts to feel that it doesn’t have the resources to handle the requests, it’s one way to trim that down,” Weismann said.
If states do move to adopt restrictions similar to Virginia, it will make it harder for news organizations and other requesters to get comprehensive information from multiple states, either to understand trends or compare certain government activities, said Amy Bennett, assistant director at OpenTheGovernment.org, an organization that advocates for increased access to government information.
“If you’re trying to make informed decisions even about how things are working in different states, you need to have consistent access,” she said.
CREW and OpenTheGovernment.org signed on to a friend-of-the-court brief in the case, arguing in support of McBurney and Hurlbert. The Reporters Committee, along with 53 other media organizations, filed a separate friend-of-the-court brief in support of the plaintiffs.
At the same time, attorneys who represented the plaintiffs in McBurney downplayed the potential impact of the decision, saying that they did not expect additional states to bar non-citizens from making public records requests.
Brian Wolfman, co-director of the Institute for Public Representation and a visiting professor at Georgetown Law who also represented McBurney and Hurlbert, said that of the six states that have citizenship requirements in their public records laws, only about half actually enforce them. The other states have either eliminated the requirement by amending their laws, as Delaware did recently, or have opinions from the state’s Attorney General instructing agencies to process requests from non-citizens.
According to Gupta, the decision is unlikely to cause many states to institute restrictions similar to Virginia because even though states may do so without violating the Constitution, it still discriminates against non-residents in a way that may make lawmakers hesitate, Gupta said. This is because even though the Supreme Court’s McBurney decision overturns the Third Circuit’s opinion in Lee v. Minner, that case had the effect of discouraging other states from using their public records laws to discriminate against non-residents.
At the same time, the McBurney decision means that a similar challenge to Tennessee’s citizenship requirement will be dismissed by the U.S. Court of Appeals in Cincinnati (6th Cir.). Edmund J. Schmidt III, the attorney for the plaintiff in the case of Jones v. City of Memphis, had asked the court to stay his client’s appeal while the Supreme Court decided McBurney.
Schmidt’s client was seeking information from the city to help small businesses and individuals receive aid from their local government. Now that the Supreme Court has ruled in favor of Virginia, Schmidt said he expects the appellate court to uphold the trial court’s decision to dismiss the case.
Schmidt said he was disappointed that the Supreme Court failed to understand how states can discriminate against individuals and small businesses who are non-residents while large businesses with locations in multiple states can claim citizenship and avoid the restrictions.
“A publicly traded corporation would not have the problem that McBurney and my client have,” he said.
Virginia may amend law
Even in Virginia, the fallout from the McBurney decision may not change how many state and local government agencies respond to public records requests from non-citizens.
Despite Virginia’s ardent defense of the citizenship requirement, many agencies either do not ask requesters to prove they are citizens before processing requests or voluntarily comply with out-of-state requests, said Maria Everett, executive director of the Virginia Freedom of Information Advisory Council. The government agency issues advisory opinions on a wide range of issues associated with Virginia’s open records laws.
While McBurney was being litigated in the Fourth Circuit, the advisory council surveyed state agencies and learned that many voluntarily provide records to non-citizen requesters. The council then issued guidance to state agencies recommending that agencies honor requests from non-citizens though agencies did not have to comply with VFOIA’s response deadlines. The guidance also said that agencies could collect fees from non-residents in advance of providing them with records.
And after the McBurney decision, the council’s advice remains the same, Everett said, as the council reiterated on its website that agencies should still comply with non-resident requests. The rationale from the council is that because non-residents can simply find a citizen to file the same request, it just creates additional work for governments.
“The way we say it is, ‘You can do this once or you can do this twice,’” she said. “We understand that the issue for government is cost, and our advice has been to always that you can get the money up front and that solves your issue for nonpayment and then you provide the records in a reasonable time.”
Additionally, media based outside of Virginia but broadcast or circulate within the state are not barred from making requests because the statute contains an exception for traditional media. The statute, however, does not address whether online media would qualify for the exception.
And the McBurney decision might ultimately become a moot point if Virginia lawmakers move to amend VFOIA and remove the citizenship requirement. A bill introduced by Delegate Mark L. Keam (D-Fairfax) during the 2013 legislative session would have done just that, though action on it was stalled pending the outcome of McBurney at the Supreme Court. Lawmakers then adjourned for the year prior to the Court’s decision.
Whether the bill will be pushed through the 2014 legislature is unclear. Messages left with Keam were not returned.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, said that although the legislature is not in session, a subcommittee discussed the bill during a meeting in late May.
And even if lawmakers feel as though the Court’s decision emboldens them to not act, Rhyne said she hopes that the legislature will see that the restriction is unnecessary and amend the law accordingly.
“As the justices pointed out, this is pretty much a pointless restriction,” she said. “It can be easily evaded and it won’t save time or money to deny out-of-state requests.”