Transparency Delayed, Transparency Denied

SCOTUS FOIA decision sparks concern among watchdogs

Virginia State Capitol / AP
• April 30, 2013 2:45 pm


The Supreme Court on Monday unanimously upheld a Virginia law that limits access to public records to state residents, causing concern among government watchdogs.

The decision could embolden, and in some cases may have already emboldened, states to set up more roadblocks to public information, watchdogs say.

Muckrock, an online tool that allows users to file public records requests at the state and federal level, called for volunteers Monday to help it cull information in states with laws similar to Virginia’s.

"Every time there's a new exemption, states find ways to use and abuse it," Muckrock cofounder Michael Morisy said in an interview.

"To decrease the amount of access to public records has a very real impact on the public, researchers, and journalists. This one in particular is going to prove troublesome because it gives state and local agencies the ability to add serious hurdles to public records requests, even to citizens in those states."

Morisy said his organization has heard from petitioners who were asked to mail photocopies of their driver licenses, or even appear in person, to obtain public records.

"One of the central tenets of public records law is it don't matter who you are or what your intention is," Morisy said. "But when you have state agencies saying, ‘Who are you? Show me your license,’ it can really have a chilling effect."

Legal experts said the Court's ruling did not depart from earlier jurisprudence on the issue.

"This decision is not surprising at all," said Daniel Metcalfe, a law professor at the Washington College of Law at American University and head of the Collaboration on Government Secrecy. "What has to be remembered is that access to government information is a purely statutory right, not one of constitutional dimension, so legislatures can grant, withhold, or limit it with hardly any legal restraint."

The appellants had argued that Virginia’s public records law violated constitutional protections under the Privileges and Immunities Clause of the 14th Amendment.

However, the Supreme Court has traditionally been wary of expanding such constitutional protections, and Monday’s decision was no different.

Virginia’s law "provides a service that is related to state citizenship," Justice Samuel Alito wrote for the Court.

"The Constitution does not guarantee the existence of FOIA laws," Alito wrote. "Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right ‘basic to the maintenance or well-being of the Union.'"

"Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden" on those outside Virginia, Alito continued.

Kyu Youm, a First Amendment scholar and Jonathan Marshall First Amendment chair at the University of Oregon School of Journalism, said the decision reflected the court’s tendency towards narrow decisions.

"The overlying interest of this kind of freedom of information law is to make sure government functions are understood and scrutinized by the general public," Youm said. "The court said this law is not contrary to that, and more importantly this kind of law has more or less state-focused objectives."

Youm also said he did not believe the impacts would be as far-reaching as some fear.

"The indirect impact might not be as substantial as some people might assume," Youm said. "If you have journalist friends in Virginia, they might work with you on state records projects."

Published under: FOIA, Supreme Court