May 2, 2013 | By Dave Maass

Supreme Court Foils Transparency Advocates' Challenge to "Citizens-Only" Records Laws

In an opinion met by groans from open-government advocates across the country, the U.S. Supreme Court this week unanimously ruled that government transparency has its limits—and those limits can be a state’s boundaries and the citizens living within them.

Open-records laws, most notably the Freedom of Information Act on the federal level, guarantee the public’s right to access government documents and data. There are a few general exceptions (such as records related to ongoing criminal investigations and records containing sensitive personnel information), but the idea is that transparency is a prerequisite for good governance. Open-government advocates believe officials are less likely to abuse their authority when they know their work is subject to citizen scrutiny.

The Commonwealth of Virginia also has a Freedom of Information Act. Although modeled after the federal FOIA, the state’s version limits access to records to Virginians only. This “citizens-only” provision is what SCOTUS upheld in its ruling.

The plaintiffs in the case were Mark McBurney and Roger Hurlbert, both of whom had FOIA requests rejected by Virginian agencies. McBurney, a former resident of Virginia, had sought records related to his family after a child-support enforcement agency allegedly bungled his case. Hurlbert runs a firm that is hired by a variety of clients to request and research real estate records; in this case Hurlbert was contracted to obtain tax records for a property in Virginia.

EFF joined Citizens for Responsibility and Ethics in Washington, the Sunlight Foundation, the Project On Government Oversight and several other open-government advocates in filing an amicus curiae brief that argued that “citizens-only” open-records laws have the potential to harm the constitutional rights of non-citizens (that is, non-citizens of a particular state).

The court disagreed. You can read the opinion itself here to understand the specific legal rationale Justice Samuel Alito used in writing the opinion. However, there are two underlying misconceptions that keep coming up in the debate over these “citizens-only” record rules that the court did not fully address.

The Supreme Court Reporter of Decisions’ syllabus—the official summary of the decision—epitomized the misconceptions underlying citizens-only provisions:  

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.

This statement misses the mark for several reasons, not the least of which is that it distorts the court’s ruling. Yet, these are the arguments often made by proponents of citizens-only public records laws.

First off: the assertion that Virginians singlehandedly bear the cost of government record keeping lacks a fundamental understanding of how state budgets work.

For the 2013 fiscal year, Virginia has allocated $42.7 billion to run the entirety of its government. Of that, $9.5 billion is anticipated to come from federal grants and contracts. That means the nation's taxpayers, largely non-citizens of Virginia, foot 22 percent of the state's bills and all the record-keeping that goes along with it. That also means that non-citizens have a substantial interest in ensuring that Virginia is spending federal money wisely.

It's a false assumption that only people living inside a state have an interest in how that state operates. A state can have a direct and tangible impact on the citizens of another state, whether through sending inmates to out-of-state private prisons or meeting with out-of-state corporations to entice them to relocate to a more favorable tax climate. The public also has an interest in understanding policies in a national context. Case in point: EFF and Muckrock’s "Drone Census." This ruling directly affects our ability to compile a comprehensive database of unmanned aerial vehicle programs by local law-enforcement agencies across the country. (On a related note: In one case, we only learned of a California county’s drone plans through a records request filed in Washington state.) 

Here’s another example of why state affairs have national relevance: Virginia officials have a tendency to become federal officials, dating as far back as George Washington and Thomas Jefferson. In modern years, the tradition has continued with, most recently, Gov. Jim Gilmore running for the Republican presidential nomination in 2008.  Current Virginia Gov. Bob McDonnell is frequently named as a prospective contender in 2016. It’s hard to argue that vetting a presidential hopeful’s executive experience is not a “need” for non-Virginians. Democracy would be poorly served if only Virginia-based news outlets were able to access a presidential candidates’s records. (Update: Newspapers, magazines, television stations and radio stations are exempted from the citizens-only provision, provided they are circulated or broadcast within the Commonwealth. As Michael Caramanica of Reporters Committee for the Free Press noted on On the Media, it's unclear whether this applies to web-based news outlets.)

Unfortunately, SCOTUS’ ruling won’t be easily undone, at least not in the courts. Efforts are underway to expand FOIA surrogate networks (where, say, someone in Virginia will file a request on your behalf). Perhaps, one day, legislators in the eight states with citizens-only provisions will undo these needless restrictions. Accountability should not stop at any state’s line.

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