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Supreme Court Rules Against Nationwide Access to State Information Via FOIA

Tuesday, April 30th, 2013

The Supreme Court on Monday ruled that states can restrict Freedom of Information Act (FOIA) requests to non-residents. While at first glance you might not see a problem with this unanimous decision. This ruling strikes a blow to any researcher or journalist that might try to use a FOIA request in order to obtain information.

The opinion released by the Supreme Court stated that “Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth [of Virginia].”

Obviously the taxpayers of the state are the ones that foot the bill. There are definitely costs involved with the labor hours required by workers to research the information that is requested. The unfortunate byproduct of this ruling is the decreased transparency that might have been produced by investigative work by nonresident researchers. What do you think? Is there a way to grant access to state information without unfairly costing the citizens of the state? Should the state be required to grant access to the information, but be allowed to charge an appropriate fee for the time required to research the information?

Background:

The case was brought about by two petitioners Mark J. McBurney of Rhode Island and Roger W. Hurlbert of California. Both petitioners had requested documents under Virginia’s FOIA. McBurney is a former Virginia resident whose ex-wife was defaulting on her child support payments. McBurney requested Virginia’s Division of Child Support Enforcement to file a petition for child support on his behalf. The agency complied with his request, but took 9 months to do so. McBurney claimed that the delay was caused by agency error and caused him to lose 9 months of child support. He wanted to inquire the reason for the 9 month delay, so he filed a FOIA request to obtain “all emails, notes, files, memos, reports, letters, policies, [and] opinions” pertaining to his family. The agency denied his request because he moved out of state. He later requested the same information under Virginia’s Government Data Collection and Dissemination Practices Act. He was able to get the information that pertained to his case, but not to policy information on how the agency handles such requests.

Hulbert is the sole proprietor of Sage Information Services. His company requests real estate tax records for clients from state and local governments nationwide. Hulbert was hired in 2008 to obtain real estate tax records for property in Henrico County, VA. His request to Virginia was likewise denied because he is a non-resident. His portion of the case argued that under the Privileges and Immunities Clause that he be granted access to the information. This clause roughly states that noncitizens must be placed on equal footing with citizens and have “the ability to own and transfer property.” The court ruled that the clause does not apply because Hulbert did not provide evidence “that the challenged provision of the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia Citizens.”

According to an article by Ars Technica: “Several other states, including Alabama, Arkansas, Delaware, Montana, New Hampshire, New Jersey, and Tennessee, impose similar geographic restrictions.”

Sources:
U.S. Supreme Court
Ars Technica

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