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Supreme Court says states can deny FOIA requests for public records

The Supreme Court upheld a Virginia public records law that restricts the access rights of out-of-state residents to obtain public records through a Freedom of Information Act (FOIA) request.

According to Watchdog.org’s Virginia Bureau, the case, known as McBurney v. Young, came about when Rhode Island resident Mark McBurney and California business owner Roger Hurlbert filed FOIA requests with the state of Virginia and Henrico County in Virginia, respectively, and were both subsequently denied.

Claiming their constitutional rights had been violated, the men sued, and were denied by the 4th Circuit of U.S. Court of Appeals in Richmond before taking the case to the Supreme Court.

Now Virginia and two other states, Arkansas and Tennessee, have the constitutional grounds to prohibit out-of-state residents of their state from making FOIA requests. This has made waves among stakeholders of public records access across the nation, garnering attention and concern from national media outlets and organizations advocating for open government.

The main concern with the ruling lies in the belief that Virginia can now freely choose to discriminate against out-of-state requests, purposely ignoring the increasingly interconnected nature of information throughout the United States.

“The policy of Virginia is that, what happens in Virginia government stays in Virginia,” Bill Maurer, an attorney with the Institute for Justice, told Watchdog.org. “That’s simply an unrealistic viewpoint in an interconnected country as large as ours.”

Others fear that even those states with existing open records laws on the books may take advantage of the McBurney v. Young ruling and hinder records access for out-of-state residents.

“If it’s OK to discriminate against requesters who are coming from out of state, it invites other states to do the same thing,” Leah Nicholls, an attorney for the D.C. public interest law firm Public Justice, told Watchdog.org.

For now, one readily available course of action for open-government advocates seems to be through state legislatures, but efforts to open government so far have not fared well.

Steps were taken in Virginia to open up the FOIA process even before the Supreme Court ruled on McBurney v. Young, but the legislation stalled in committee. Meanwhile legislation shielding correspondence and working papers of Virginia legislative aids from FOIA requests made its way to Virginia Governor Bob McDonnell’s desk.

Although some groups are looking to expand surrogate networks for filing FOIA requests, it will be quite an undertaking to expand such networks.

Aside from how this will affect out-of-state individuals such as McBurney and Hurlbert, will this ruling make it harder for citizen journalists to investigate? Does this ruling indicate a bias toward established media outlets? Could this prompt other states to begin rolling back their standing open records laws?

Categories: Government Transparency, Must Read
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