The Supreme Court vs. Freedom of Information

The justices undermine a core constitutional protection in McBurney v. Young.


Let's say a resident of New York drives to Virginia in order to visit relatives and a member of her family uses her car to visit a prostitute one night and ends up getting arrested. The owner has zero knowledge of this illegal activity and is of course never charged with any crime, let alone convicted of one, yet the police still seize the car as part of an asset forfeiture proceeding. That's the controversial tool allowing law enforcement to take private property suspected of being used to facilitate a crime without first obtaining a criminal conviction against the owner of that property. Shouldn't the New York-based car owner be permitted to file a Virginia Freedom of Information Act request as part of her efforts to get her property back? Not in the eyes of the U.S. Supreme Court.

In a unanimous decision handed down this week, the Supreme Court undermined Article IV of the U.S. Constitution, which reads, "The Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States," by upholding a Virginia law forbidding out-of-state residents from obtaining public documents via the state's Freedom of Information Act (FOIA).

The case of McBurney v. Young arose when Mark Burney, a former resident of Virginia now living in Rhode Island, sought to obtain government documents to help settle a child support dispute with his ex-wife, who was still living in Virginia. The state's Division of Child Support Enforcement denied his FOIA request on the grounds that Burney lived outside of the Old Dominion. A second plaintiff in the case, Roger Hurlbert of California, operates a business that obtains real estate tax records for paying clients. His FOIA requests were also denied based on his residency.

In its unanimous decision, the Supreme Court sided with the state, holding that Virginia possesses a legitimate interest in curtailing FOIA requests and that the state restriction does not violate any of the fundamental rights protected by the Privileges and Immunities Clause. "It seems clear," wrote Justice Samuel Alito, "that the distinction that the statute makes between citizens and noncitizens has a distinctly nonprotectionist aim. The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power."

The problem with this argument is that it ignores the long and invasive reach of state officials, as illustrated by the asset forfeiture example given above. Out-of-state residents who run afoul of Virginia laws are simply out of luck.

And what about Virginia residents who happen to have retained out-of-state attorneys? National public-interest law firms routinely take on local cases in order to draw attention to particular forms of government malfeasance, whether it's racial profiling or eminent domain abuse. The law at issue in this case severely impedes their ability to mount a meaningful legal case. Indeed, one such national law firm, the libertarian Institute for Justice, filed a friend of the court brief in McBurney urging the Supreme Court to strike down the Virginia law precisely because it hamstrings the important work of public-interest litigators such as IJ, the NAACP, and many others. "The ability of Americans to determine whether local officials have treated them in a manner consistent with the federal Constitution," the IJ brief argues, "may depend on someone from out-of-state obtaining public records regarding the performance of governmental responsibilities."

A similar argument applies to the work of investigative journalists, who frequently report on out-of-state events. To that end, the Reporters Committee for Freedom of the Press, along with 53 other media organizations, including the Associated Press, the New York Times Company, and The Daily Caller, submitted their own friend of the court brief in the case urging the nullification of the Virginia restriction. "By allowing states to enact open records laws that discriminate against non-residents," the journalists' brief observes, "the Court will be sanctioning a practice that directly harms the media's ability to gather and disseminate news that provides a full and accurate account of regional and national events."

Unfortunately, the Supreme Court has now sanctioned that harmful practice. It's a bad day for all Americans when government power triumphs so thoroughly over the ability of citizens to vindicate their rights.