Should the right to obtain state government records end at the state line?
In a petition filed June 29, attorneys for two frustrated public-records requesters are asking the U.S. Supreme Court to decide that the answer is “no.”
Mark McBurney of California and Roger Hurlbert of Rhode Island filed suit after government agencies in Virginia denied their Public Records Act requests on the grounds of nonresidency. They claim it’s unconstitutional for states to discriminate in granting access to information.
The requesters lost their case in April before the Fourth Circuit U.S. Court of Appeals, where a three-judge panel decided that Virginia’s residents-only freedom-of-information law did not infringe on any right essential to United States citizenship.
Twenty-two media organizations, including the Student Press Law Center, filed a brief on the losing side, urging the Fourth Circuit to strike down Virginia’s rule as an unconstitutional restraint on the rights of nonresidents. The Privileges and Immunities Clause (Art. IV, Sec. 2 of the Constitution) restricts the ability of states to discriminate against nonresidents.
Besides Virginia, seven other states — Alabama, Arkansas, Georgia, Montana, New Hampshire, New Jersey and Tennessee — have laws on the books limiting access to public records to in-state residents. (A federal district judge threw out a challenge to the Tennessee law in April; the case is on appeal to the federal Sixth Circuit.) How vigorously states enforce the restriction varies, and many agencies will grant nonresidents’ requests as a matter of courtesy.
Discriminatory open-records laws are of unique concern to college journalists, since many will not have a local ID from the state in which they are attending school.
The Supreme Court might be interested in taking the case to resolve an irreconcilable disagreement among lower courts. In 2006, the neighboring Third Circuit U.S. Court of Appeals struck down an essentially identical law in Delaware on constitutional grounds.