Supreme Court debates if access to public information is a fundamental right

In oral arguments today, U.S. Supreme Court justices questioned whether access to public records is a fundamental right in a case that will determine whether a state can prohibit non-citizens from obtaining its records.

However, the justices expressed skepticism over whether the purported administrative burdens states face when responding to records requests by non-citizens actually exist.

The case, McBurney v. Young, concerns a constitutional challenge to the Virginia Freedom of Information Act by two out-of-state residents who had their public records requests denied. Their lawsuit argues that the citizenship requirement discriminates against non-residents and also burdens their business interests.

Justice Antonin Scalia began the argument by questioning whether access rights are fundamental because most public records laws were created within the past 50 years.

Deepak Gupta, who represents the two non-residents, said that the modern statutes codify rights that existed for centuries.

“The modern transparency laws are new, but they sit on top of well-established common law rights to access that are based not on modern notions of transparency but on the right to secure property and other basic interests,” Gupta said.

The justices also were concerned that a ruling in favor of the non-residents would prevent a state from reserving resources for its citizens. Justice Ruth Ginsberg said allowing non-residents to file FOIA requests could be considered similar to allowing them to vote or hunt in Virginia.

Justice Scalia agreed, saying that it seemed reasonable for Virginia to limit access to public records to only its citizens.

“They just don’t want outlanders mucking around in Virginia government,” he said. “It’s perfectly okay for good old Virginians to do that, but they don’t want outlanders to do it.”

But the justices were also critical of a central argument raised by Virginia Solicitor General E. Duncan Getchell that allowing out-of-state residents file FOIA requests in Virginia would impose financial and administrative burdens on the public records offices.

“You’ve got to maintain and generate the database anyway for Virginia citizens who are going to ask for [public information],” Chief Justice John Roberts said. “This is not an added cost.”

Gupta also pointed out that the overhead costs for fulfilling FOIA requests from out-of-state citizens would be recouped, as the statute allows agencies to charge fees for the costs associated with responding to public records requests.

Mark McBurney of Rhode Island and Roger Hurlbert of California filed suit in the U.S. District Court in Richmond, Va. in 2009, claiming that the Virginia FOIA law violates the Privileges and Immunities Clause and the Dormant Commerce Clause of the U.S. Constitution. McBurney was seeking access to child support information and Hurlbert sought real estate tax assessment records as part of his job.

Although the law prevents non-citizens from accessing Virginia's public records, it contains a limited exception that allows out-of-state news media organizations to request information so long as they broadcast or circulate within Virginia.

The Reporters Committee for Freedom of the Press filed friend-of-the-court briefs in the case in both the U.S. Court of Appeals in Richmond (4th Cir.) and the Supreme Court.