Is Open Government a States' Rights Issue, Too?

By Garrett Epps

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.

mapvirginiaban.jpg
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.

Roger Hurlbert, meanwhile, owns a business in California that obtains local tax records for private clients. There are lots of reasons why out-of-state interests need these records -- particularly if they are thinking of locating businesses or real-estate developments in Virginia. Though tax records are freely available to residents, local officials told Hurlbert he couldn't have them. He could hire a local to request for him, but that would raise his costs. As a result, he no longer does business in Virginia.

McBurney and Hurlburt argue that this violates Article IV's guarantee that "[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Nobody knows exactly what this provision means, but since the nineteenth century it has been read to guarantee that states can't bar out-of-staters from exercising basic rights inside the state. Hurlbert also argues that the law discriminates against his business, and that it thus is a state-imposed burden on interstate commerce. Under the so-called "dormant" commerce clause, states can't discriminate against out of state business, or clog the general flow of commerce, without a good reason.

Virginia responds that the true purpose of the open-records law is to make government accountable to its voters. It makes perfect sense, then, to restrict its benefits. And since the open records act doesn't mention commerce, it argues, it can't violate the "dormant" commerce clause.

The challengers are represented by Georgetown Law Center's Institute for Public Representation, which provides lawyers to individuals litigating matters of "broad public importance." Media organizations have filed an amicus brief on the side of the challengers. It's easy to see why: Virginia's statute allows print and broadcast media access to public records -- but only those "with circulation in the Commonwealth" or "broadcasting in or into the Commonwealth." At least since the days of the Civil Rights Movement, journalists have been wary of local laws designed to exclude "outside" media. The Virginia statute "invites officials to discriminate against certain members of the media," the brief argues.

Public-interest organizations like the American Civil Liberties Union, Public Justice, and Judicial Watch have also weighed in against Virginia. But the business of the Roberts Court is business; The brief most likely to win conservative votes is from a coalition including national software companies, multi-state real-estate developers -- and the company that runs CARFAX.

This article available online at:

http://www.theatlantic.com/national/archive/2013/02/is-open-government-a-states-rights-issue-too/273271/