FOIA folly

Paul Fletcher, The Daily Record Newswire

The U.S. Supreme Court on April 29 upheld a Virginia law that says the commonwealth doesn’t need to respond to Freedom of Information requests from people who live out of state.

The high court’s reasoning in McBurney v. Young apparently hinged on economics. Virginia can draw a valid distinction between residents and nonresidents because the people of the commonwealth are the ones who pay the fixed costs required for agency recordkeeping.

And Attorney General Ken Cuccinelli crowed afterwards that the decision was “a victory for Virginia taxpayers.”

You can ignore the AG’s comment as election-year pablum but you can’t ignore the general disdain that the high court seems to have toward FOIA.

The FOIA and other good-government sunshine laws were passed to provide transparency for the public. They were designed to allow the public to know what was going on, without having to dig too terribly deep.

In the unanimous opinion, Justice Samuel Alito reduces the function of FOIA laws to providing a “service.”

“Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all,” he wrote.


The plaintiffs in McBurney were a guy in Rhode Island seeking state child support info and a man from California seeking data on property assessments in Henrico County.

Those are somewhat typical of the types of requests that someone outside the commonwealth might have.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, noted several others in a post on the VCOG website.

Other out-of-staters with requests might include a woman in Indiana trying to get nursing home data for placement of her elderly mother. Or a grad student in Alabama trying to get election data for a school project. Or a man in Bristol, Tenn., who is worried about the condition of a bridge across the state line in Bristol, Va., and seeks inspection data.

Rhyne, addressing her piece to the nine justices, put it this way: “I don’t think the opinion the lot of you embraced on Monday gives any thought to just how public records are used day in and day out by everyday citizens who are just trying to make sense of their world and how government is impacting it.”

Here’s the thing about the Virginia FOIA with its newly endorsed practice of spurning out-of-state requests.

It’s awfully easy for a nonresident to ask someone here to make the request. You might even see someone seeking to handle those services for a fee (FOIA ‘R’ US, anyone?).

So it sets up an easily avoided hoop that makes this law pretty meaningless. Why have meaningless laws?

Some open-government advocates fear that other states will take a cue from McBurney and join the eight states that have resident-only FOIA laws. If that happens, you might see informal arrangements between businesses or companies to make FOIA requests in their states, similar to way that a law firm near a state border will work with a firm on the other side of the line. All it takes is a resident’s signature, and the FOIA request or lawsuit is ready for filing.

Rhyne noted that the lawyer for the commonwealth, when making his argument before the Supreme Court, referred to FOIA laws as a “fad” of the 1960s.

A fad? No, that’s wrong. A fad is something that goes out of style.