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 the merits.")

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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