States of denial

Limiting records access to state citizens violates constitution, court says.

From the Fall 2006 issue of The News Media & The Law, page 22.

By Nathan Winegar

A federal appeals court decision that struck down a Delaware law limiting access to public records to state residents could pave the way for noncitizens to challenge similar requirements in other states.

Inner City Press, a New York-based consumer advocacy group that publishes much of its information on the predatory lending practices of banks, had asked the state attorney general’s office for information related to its decision to join a settlement with a company over its alleged deceptive lending practices.

Former Delaware Attorney General Jane Brady rejected Inner City’s public records request based solely on the fact the organization was not located in Delaware.

The ability for an out-of-state organization such as Inner City Press to have access to Delaware’s public records is crucial because Delaware is the legal home of many of the country’s largest corporations and financial institutions, said Matthew Lee, head of Inner City Press.

On Aug. 16, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled in favor of Lee and Inner City Press. “The citizens-only provision of Delaware’s Freedom of Information Act burdens noncitizens’ right to engage in the political process with regard to matters of national political and economic importance,” the court wrote.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of Lee.

As good as it looks on paper, the victory has been a hollow one because the Delaware attorney general’s office has continued to deny access to the documents based on other provisions of the state’s freedom of information law, Lee said.

“The reality is we have not gotten documents following that decision,” Lee said. “That does not mean we are not bright and chipper in pursuing the same documents in other states.”

Residency restrictions similar to Delaware’s now-invalidated law still exist in six states: Arkansas, Georgia, New Jersey, Pennsylvania, Tennessee and Virginia. In Missouri, records requested under one state law are restricted to citizens, but other records are available to out-of-staters.

The court’s decision technically overrules only the Delaware law. But it directly threatens residency restrictions on the books in Pennsylvania and New Jersey because both states are in the Third Circuit’s geographic jurisdiction and all federal judges there must follow the new precedent in cases that comes before them.

The appellate court’s decision does not automatically invalidate those laws. Instead, a person denied records because of his residency would have to bring a lawsuit against the state.

Whether the continuing legal validity of residency requirements in the other states will be affected is unclear since federal courts in those jurisdictions are not bound by the decision in the Third Circuit. Lawyers with similar cases in places like Arkansas and Georgia can use the court’s reasoning only to attempt to persuade the judges that residency restrictions on public records are similarly unconstitutional.

Until those court cases arise to challenge the specific laws, journalists should point to the Third Circuit’s decision during informal negotiations with agencies. Lee said since the ruling, Inner City Press has had success using the decision to sway officials from those states who would otherwise deny the group based on its address.

Lee’s attorney, David Vladeck of Georgetown University Law Center, said his sense is that state attorneys general and other agency officials have seen the opinion and have scaled back enforcing the laws so as not to invite any legal challenges.

Consequently, Vladeck has no immediate plans for further lawsuits. Still, he said he would take on the case of anyone who has been denied a public records request based on a residency restriction.

‘No state is an island’

In any potential future case outside the Third Circuit, federal courts may find the reasoning of the recent decision compelling because the ruling was grounded in a broad constitutional principle.

The court found that Delaware’s residency restriction violated a clause of the U.S. Constitution designed to prevent states from discriminating against out-of-state residents when it comes to legal protection or government services.

This rule is not absolute, and courts will permit state laws that discriminate against nonresidents if a state has a compelling reason. For example, states have convinced courts of the need to restrict voting in state elections to citizens, and to charge higher license fees to out-of-state hunters and higher tuition rates at state universities to nonresident students.

In the Delaware case, the state argued that its freedom of information residency requirement was valid because the state had a substantial interest in “defining the political community and strengthening the bond between citizens and their government.”

The appeals court, in an opinion written by U.S. Circuit Judge David Smith, found the state’s justification unpersuasive, saying there is “little if any relationship” between those goals and granting nonresidents access to government records.

“[T]he state has offered no reason why permitting noncitizens to access public information would diminish its ability to define its political community,” the court wrote.

To the contrary, the court found that there a strong political interest in allowing nonresidents access to Delaware records.

“No state is an island at least in the figurative sense and some events which take place in an individual state may be relevant to and have an impact upon policies of not only the national government but also of the states,” the court wrote.

Harry A. Hammitt, who edits a newsletter, Access Reports, about government information laws, said it is possible that a state could come up with a sufficiently compelling reason for residency restrictions on freedom of information laws, but Delaware’s invocation of democratic participation was simply not sufficient.

“It was a dead loser,” he said. “Delaware just didn’t have much of an argument in this case.”

Lofty principles of the dual roles of citizen and state in democratic government aside, Hammitt said the true motivation underlying residency restrictions can be significantly more mundane: Fulfilling public records requests can be expensive.

“I think, generally speaking, the citizenship requirements are largely a device so that state money does not have to be spent on out-of-state people,” he said.