Restriction of Access to Information Even Under FOIA

Introduction

Six states currently have statutes restricting access to public records to citizens of only that state: Alabama, Arkansas, Delaware, Missouri, New Hampshire, Tennessee and Virginia.[1]  The Freedom of Information Act (“FOIA) is a federal law which gives citizens the right to access information from the government.[2]  The purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[3]  However, in 2013, the United States Supreme Court held there is no constitutional right to obtain all the information provided by FOIA.[4]

McBurney v. Young

In 2013, petitioners, McBurney and Hurlbert, each filed records requests under FOIA in Virginia, even though neither was a citizen of Virginia.[5]  Both were denied on the grounds they were not Virginia citizens.[6]  While it would seem the holding in McBurney is contrary to the Privileges and Immunities Clause, the Court held the Clause only protects those privileges and immunities which are fundamental.[7]  The Privileges and Immunities Clause of the United States Constitution provides “[t]he citizens of each state shall be entitled to all privileges and immunities of citizens” in other states.[8]  Petitioners alleged the FOIA provision violated four fundamental privileges or immunities of the Privileges and Immunities Clause:

(1) the opportunity to pursue a common calling;
(2) the ability to own and transfer property;
(3) access to the Virginia courts; and
(4) access to public information.[9]

The Court ruled the Virginia FOIA statute “does not abridge Petitioner's ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause”[10] because the Court has only struck down laws as violating the privilege of pursuing a common calling when those laws were enacted for the protectionist purpose of burdening out-of-state citizens.[11]  Virginia's FOIA statute was enacted to “ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body…”[12]  However, this did not create an economic advantage for Virginia citizens and thus the statute is constitutional.[13]  The Court also ruled the law did not limit the ability to own and transfer property because the statute did not prevent citizens from other states from obtaining documents which are maintained by the clerk of the circuit court.[14]

The Court further held the law did not burden Petitioners’ access to public proceedings.[15]  The Court noted this “constitutional requirement is satisfied if the non-resident is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have…”[16]  Petitioners were afforded reasonable and adequate access to the Virginia court system because Virginia’s rules of civil procedure allowed sufficient mechanisms to provide non-citizens with any relevant, non-privileged documents needed in litigation.[17]  The Court also rejected Petitioners’ claim that the provision violated their right to access public information.[18]  The Court “has repeatedly made clear there is no constitutional right to obtain all the information provided by FOIA laws.”[19]  This right was not recognized at common law and there is no contention the United States “is suffering now because of the citizens-only FOIA provision that several States have enacted.”[20]

Implications

This holding may have severe policy implications even though there is little practical consequence.  The unanimous decision to allow state laws restricting access to information under FOIA to citizens of those states creates little practical impact on non-resident attorneys seeking to obtain information.  By hiring local counsel to acquire documents for these states, attorneys will easily be able to avoid this minor hurdle.  However, this will increase costs for clients.  According to the most recent United States Consumer Law Attorney Fee Survey Report, in 2014 the national average and median hourly rates were $361 and $350, respectively.[21]  It is likely that it would take at least a couple of hours to acquire the necessary documents, thus creating more cost for the client.

The policy impact is much greater.  Allowing a state to effectively bypass the Privileges and Immunities clause harms non-citizens and may even create hostility among the states.  The public’s right to access of information is effectively hindered, if not denied.  In a time where the validity of the information and the source itself are questioned on a regular basis, access to information at the source is crucial.  It is also contrary to the information trends of the world.  We are constantly moving toward access to more and more information and allowing a restriction on information seems ridiculous.

Conclusion

Regardless of the policy implications, this is the law as it stands today.  Therefore, when it is necessary to obtain information from another state, it is prudent to first investigate whether the state has a restriction statute.  If it does and you decide to hire local counsel, make sure to discuss with local counsel regarding the cost before requesting the information so as to be fair to the client.


[1] Ala. Code § 36–12–40; Ark. Code § 25–19–105; Del. Code, Tit. 29, § 10003; Mo. Rev. Stat. § 109.180; N.H. Rev. Stat. § 91–A:4; Tenn. Code. Section 10-7- 503(a)(2)(A); Va. Code § 2.2–3700(B).

[2] 5 U.S.C. § 552.

[3] N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

[4]  McBurney v. Young, 133 S. Ct. 1709, 1714 (2013).

[5] Id. at 1711.

[6] Id. at 1711-14.

[7]Id. at 1714.

[8] U.S. Const., art. IV, § 2, cl. 1.

[9] McBurney, 133 S. Ct. at 1715.

[10] Id.

[11] Id.

[12] Id. (citing Va. Code § 2.2–3700(B)).

[13] Id. at 1715.

[14] Id.

[15] Id. at 1717.

[16] Id. (citing Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920)).

[17] Id. at 1717.

[18] Id. at 1718.

[19] Id. (citing Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978); see also Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40 (1999)).

[20] Id. at 1718–19.

[21] Ronald L. Burdge, United States Consumer Law Attorney Fee Survey Report 2013-2014, at https://www.nclc.org/images/pdf/litigation/fee-survey-report-2013-2014.pdf, 12.

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