Should out-of-staters be allowed to request public documents under state FOI laws?

The Supreme Court has conferred regarding a case involving state freedom of information laws; the hearing left the justices somewhat divided. At its core, the case dealt with issues such as whether freedom of information (FOI) is a taxpayer privilege or a fundamental right and the impact of FOI laws on interstate commerce.

The case originated from Rhode Island resident Mark McBurney and California resident Roger Hurlbert, who were denied requests to receive public documents from the state of Virginia (documents which would have been available to in-state citizens). The Virginia Freedom  of Information Act (V-FOIA) guarantees only “citizens of the Commonwealth” and representatives of the media access to public records.

McBurney and Hulbert challenged the V-FOIA’s citizens only provision under the grounds that it violated the U.S. Constitution’s Privileges and Immunities Clause, which states that ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” However, the Fourth Circuit Court of Appeals in Richmond disagreed, holding that the rights under the V-FOIA are not “fundamental rights” within the context of the Privileges and Immunities Clause.

Hurlbert also challenged the V-FOIA citizens-only provision under the Dormant Commerce Clause of the U.S. Constitution, which restricts states from passing legislation that burdens or restricts interstate commerce. The Fourth Circuit Court of Appeals again disagreed and held that the V-FOIA is not applicable to the Dormant Commerce Clause.

When the case reached the U.S. Supreme Court, Virginia’s solicitor general argued that Virginia has the right to reserve services, such as providing public records, to its taxpayers who foot the bill for creating and maintaining the state’s records. He pointed out that many states have service limitations, such as in-state tuition at state universities, that are provided only for in-state residents.

From the perspective that the right to public information is a taxpayer’s privilege, the state of Virginia would seem to be in the clear. Especially in the current economic environment of budget cuts and government debt, it is logical for states to want to constrain the sometimes costly burden of providing public records. However, this argument gets murky because McBurney was a former Virginia resident seeking access to documents from a Virginia child welfare agency involving a child support petition from his divorce. As a former state citizen, McBurney did at one time pay the taxes which entitled him to Virginia public records and the records he is seeking are applicable to the time during which he lived in the state. Should the simple act of moving across state lines strip him of his privilege to access public documents from his former home state?

The Supreme Court judges were divided on the issue. Justices Anthony Kennedy and Sonia Sotormayor called Virginia’s actions “discriminatory.” Chief Justice John Roberts said that it doesn’t seem like that big a deal” to provide out-of-staters with documents and wouldn’t cost that much more money. However, Roberts also pointed out matter-of-factly that “all [an out-of-stater] has to do is get somebody from Virginia to ask for him.” Justice Elena Kagan emphasized the e-commerce aspect of FOI laws, saying “it does affect out-of-state data collectors.” On the other hand, Justice Antonin Scalia said that the purpose of FOI laws is to provide a service to citizens regarding how their government works, not to provide information across state lines.

The Supreme Court is expected to make a ruling by the end of the summer.

Where do you stand in this debate: should out-of-staters have access to other state’s public documents or should that be only a taxpayer privilege? Further, do you consider freedom of information a privilege or a fundamental right?