In the vast majority of U.S. states, “public records” are just that — accessible to any member of the public. But a dwindling handful of states continue enforcing an antiquated practice of rejecting information requests submitted by non-residents.
If these laws ever made sense, they long ago ceased to be relevant in today’s mobile society. For example, it’s not unusual for a college student to live in Washington, D.C., yet ride the Metro rail into Virginia to attend classes, work, shop and otherwise conduct herself as a resident of Virginia. She should be entitled to the same government transparency as a person whose apartment is two miles away over the state boundary.
On Wednesday, the Student Press Law Center joined our friends at the Reporters Committee for Freedom of the Press and 20 other journalism and open-government organizations in filing a brief with the 4th U.S. Circuit Court of Appeals in Richmond, Va., asking that Virginia’s discriminatory public-records residency law be declared unconstitutional.
The brief argues that, by entitling only in-state residents to the benefit of the Virginia Freedom of Information Act, the state is violating the U.S. Constitution’s Privileges and Immunities Clause. Section 1 of the Fourteenth Amendment provides in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States(.)”
In a very similar 2006 case, the 3rd U.S. Circuit Court of Appeals struck down the citizens-only provision in the Delaware Freedom of Information Act, finding that it unduly burdened the right of nonresidents to participate in the political process. That leaves only six states — Alabama, Arkansas, Georgia, New Hampshire, New Jersey and Tennessee — with the discriminatory language still on the books.
The Virginia case, McBurney v. Young, was brought by two non-journalists, but the legal principle involved is of great consequence to journalists, especially those attempting to compile state-by-state comparative research. (For instance, the SPLC recently was contacted by students in an Illinois journalism class who were rebuffed when requesting a copy of an athletic director’s contract from a college in Tennessee, even though the contract is a boilerplate public record that would readily be produced to an in-state requester.)
Of course, it’s possible for a frustrated requester to enlist a friendly in-state resident to file the open-records request, but that’s precisely the point. When an agency rejects the request of an Illinois resident, then must fulfill the request resubmitted by that person’s buddy in Virginia, it creates more and not less work for everyone. And since freedom-of-information laws enable agencies to charge reasonable copying fees to cover their expenses, there should be no reason to give preference to a Virginia taxpayer.