Is Open Government a States' Rights Issue, Too?

Virginia goes to the Supreme Court over a law that limits public-records access to its residents. Here's why it matters for all Americans.

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Library of Congress

A lot of American constitutional law involves the tension between "this land is your land" on the one hand and "you're not from around here, are you?" on the other.

McBurney v. Young, which will be argued Wednesday in front of the Supreme Court, is a great example. The issue in McBurney is whether a state can set up an "open records" system that benefits only its own residents, while denying access to outsiders. As an issue, it's less exciting than gay marriage, affirmative action, or the Voting Rights Act. But it has practical implications for anyone who owns or wants to own property in another state, who does business in more than one state, or who has moved recently from one state to another.

We take access to government records almost for granted. In fact, the challengers in McBurney argue that, because of its importance for business and daily life, such access has become a basic building block both of national citizenship and of interstate commerce. Virginia, however, argues that records access is simply a matter of local concern, like voting.

During the 1960s and 1970s, the country underwent a quiet revolution in open government. In 1966, Congress passed the Freedom of Information Act (FOIA), and all 50 states -- those, that is, that didn't already have "sunshine laws" -- followed suit. Those laws are now a key part of politics, news-gathering, and business. They allow a requester to demand governmental records for any reason, and they require government to furnish copies without an excessive charge. FOIA requests are used to expose governmental wrongdoing, provide cheap discovery in litigation, fuel large-scale journalistic investigations, create multi-state research surveys, and obtain detailed data that can be mined, exploited, and sold.

Most states have opened their records to anyone who asks. However, Virginia and Tennessee extend the guarantee only to those within their borders. (Some other states have ambiguous laws providing access to every "citizen," which could mean state citizen or federal. Delaware limited access to in-staters until the Third Circuit struck that requirement down in 2006.) The challengers argue that the "citizen only" laws conflict with two provisions of the Constitution. One is the "privileges and immunities" clause of Article IV; the other is the so-called "dormant commerce clause," which courts have deduced from Congress's power to regulate commerce "among the several states."

Put another way, if state records are documents about government and accountability, they say, they are "privileges and immunities" and the state can't discriminate among American citizens in granting them; if they are simply a valuable product, the state can't hog them for its own people.

The challengers in McBurney come from both camps. Mark J. McBurney is a former Virginian who was awarded child support from his ex-wife under a Virginia divorce decree. When he moved to Australia, however, the state bungled its responsibility to collect his payments. By the time the error was discovered, McBurney had lost the chance to seek nine months' payments, now barred by the statute of limitations. He asked for all records related to his case, but was denied because he was no longer resident in the state.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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