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Resident-only records law ruled unconstitutional

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NEWS MEDIA UPDATE   ·   DELAWARE   ·   Freedom of Information   ·   May 17, 2005

NEWS MEDIA UPDATE   ·   DELAWARE   ·   Freedom of Information   ·   May 17, 2005

Resident-only records law ruled unconstitutional

  • Delaware’s rule that only state residents are entitled to use its freedom of information law violates the U.S. Constitution, a federal court ruled last week.

May 17, 2005  ·   The U.S. Constitution bars Delaware — where most large American corporations are legally incorporated — from discriminating against noncitizen records requesters in administering the state freedom of information law, a federal court in Wilmington ruled last week.

The citizenship precondition of Delaware’s records law violates the constitutional clause that entitles citizens of each state to “privileges and immunities” in other states, U.S. District Judge Joseph J. Farnan Jr. ruled in siding with a New York records requester who sued for access.

The ruling leaves a few states — Arkansas, Georgia, Pennsylvania, Tennessee and Virginia — that only allow their own citizens to use the state open records law.

Matthew Lee, a New York-based advocate for fair banking practices who follows Delaware banking regulations for the Inner City Press, a newspaper he founded, has used the state records law to obtain information concerning predatory lending.

In January 2003, Lee was told not to expect requested documents pertaining to actions taken by Delaware Attorney General M. Jane Brady against a corporation for predatory lending because he was not a Delaware citizen. Another request Lee made later in 2003 yielded similar response.

Lee sued, arguing that the citizenship precondition of the Delaware freedom of information law violates the Privileges and Immunities Clause of the U.S. Constitution, which the U.S. Supreme Court has said seeks to unite the citizens of the states as one people.

The Delaware Freedom of Information Act discriminates against Lee for being a noncitizen and therefore compromises “interstate harmony,” Farnan ruled. Lee “cannot practice his common calling as a journalist and consumer activist on the same terms and conditions as journalists and consumer advocates who are citizens of the State of Delaware,” Farnan wrote.

The negative impact of the law’s Delaware-only limitation becomes clearer, Farnan wrote, when considering that “as the corporate home for thousands of corporations in the United States, Delaware’s regulations have nation-wide political and economic impact.”

In dismissing Delaware’s argument that its citizen-only rule was necessary “to define the political community and strengthen the bond between citizens and their government officials,” Farnan wrote that “[I]t is difficult to understand how . . . external scrutiny might undermine the bond between [Delaware] citizens and their government.”

Farnan also noted the ease with which noncitizens could circumvent the citizen-only rule by recruiting citizens to make requests on their behalf. During discovery, the state admitted that it enforces its citizen-only rule merely by glancing at the requester’s mailing address.

Law professor David Vladeck of Georgetown University Law Center’s Institute for Public Representation, who was one of Lee’s attorneys, told The New York Times that given Delaware’s status as home to many American corporations, the state’s citizen-only freedom of information law undermined corporate accountability.

(Lee v. Minner; Media Counsel: Walter Speed Rowland; Wilmington, Del.)RL

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