By Erin Geiger Smith
The U.S. Supreme Court agreed on Friday to hear a case
concerning Virginia's Freedom of Information Act and whether its
restrictions are constitutional. The restrictions on who has
access to state documents have stoked the fires of two separate
information-loving groups -- journalists and those who gather
and sell public records for a living.
Virginia is one of at least eight states with a law that
restricts access to public records to state residents.
Specifically, the law at issue says that "all public records
shall be open to inspection and copying by any citizen of the
Commonwealth." So those Americans who don't live in the great
state of Virginia but want to see its records are out of luck.
There is an exception to that rule for "representatives of
newspapers and magazines with circulation in the Commonwealth,"
as well as radio and television broadcasters who reach into
Virginia's airwaves. But we at On the Case took note that
Virginia's description of media leaves out a whole lot of
reporters who practice their craft on the Internet.
Two people are suing Virginia to challenge the law, but
neither of them is a member of a news organization. One is a
small business owner from California who earns his living
gathering public property records for his private clients. The
other is a Rhode Island man whose wife defaulted on her
Virginia-ordered child support. He wanted access to the state
enforcement agency's records related to his child support
application. In a February 2012 opinion authored by Judge Steven
Agee, the 4th Circuit Court of Appeals upheld the Virginia law.
The court said that the residents-only provision does not
implicate any rights protected by the U.S. Constitution's
Privileges and Immunities Clause -- which requires citizens of
one state to be on the same footing as citizens of all other
states when pursuing their professional calling -- because the
law doesn't preclude non-Virginians from their chosen
profession, even if it makes that profession a bit harder. Nor,
the court said, does the citizens-only provision run afoul of
the Commerce Clause because any effect on interstate commerce is
"incidental and unrelated" to the language of the law.
In June 2012, the two men asked the Supreme Court to hear
their case, arguing not only that the 4th Circuit got it wrong
but that there is a direct split with the 3rd Circuit Court of
Appeals, which ruled in 2006 that a nearly identical Delaware
provision was unconstitutional.
Virginia countered that there's no circuit split since the
3rd Circuit "recognized this right of equal access to
information" only for non-residents who wanted to engage in the
political process. It also said that the purpose of the state's
freedom of information law is to educate and inform Virginians,
and there's nothing improper about it.
Brian Wolfman, co-director of the Institute for Public
Representation and counsel to one of the petitioners, told us
that VFOIA, as Virginia's law is known, commits exactly the
injustices that the Privileges and Immunities and Commerce
clauses are designed to prevent. "My client ... cannot do
business on equal terms with a Virginia buyer and seller of
information," he said. Wolfman believes the justices will
also be sympathetic to his client's Commerce Clause concerns,
given that the court "has been protective of people who want to
do business nationally against constraints imposed by states."
That group includes not just sole proprietors like Wolfman's
client but also big-shot information sellers like CoreLogic and
LexisNexis that filed an amicus brief asking the court to take
up the case. The brief argued that even multibillion-dollar
corporations depend on "nondiscriminatory access to public
records nationwide." (Christopher Mohr of Meyer, Klipper & Mohr,
the counsel of record for the amici group that includes
CoreLogic, said the group is "encouraged by the court's grant
and we look forward to the opportunity to present our views on
Economic concerns aside, Wolfman also said the wording of
Virginia's media exception raises worries that the state can
pick and choose which outlet it will supply information to,
putting less-established members of the Fourth Estate at a
disadvantage. The Daily Kos blog and social-media cool kid
Tumblr are also part of an amicus group that asked the court to
hear the case, saying that the Virginia provision "offers an
exemption for some media organizations" but "merely increases
the confusion faced by other journalists" who don't represent
traditional newspapers, magazines or FCC-licensed broadcast
stations. Moreover, as the media groups' lead lawyer, Marvin
Ammori of the Ammori Group, pointed out, many of the eight
states with citizens-only FOIA provisions don't have any
exceptions for journalists.
A representative for the Virginia Attorney General's Office
said the state is looking forward to defending its position.
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