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Supreme Court upholds limits on public records access

Virginia does not have to extend public-records access to persons outside the commonwealth, the U.S. Supreme Court said today, denying out-of-staters’ requests under the Virginia Freedom of Information Act for records on a child support case and on county real estate data.

Rhode Island resident Mark McBurney filed a VFOIA request with the Virginia Division of Child Support Enforcement, seeking information about why DCSE had delayed in filing a child support petition on his behalf, which he said had cost him nine months’ worth of support.

McBurney argued that DCSE’s denial of his request hindered his right to advocate on his own behalf and prohibited him from using Virginia’s dispute resolution procedures, thus violating the federal Privileges & Immunities Clause. However, McBurney was able to get much of the information he sought from Virginia’s Government Data Collection and Dissemination Practices Act, according to the Supreme Court.

California resident Roger Hurlbert, owner of Sage Information Services, sued over Henrico County’s denial of records from the county assessor’s office, which Hurlbert said interfered with his fundamental right to earn a living in his chosen profession of obtaining property records for his clients.

After denying Hurlbert’s FOIA request, the county provided Hurlbert with an electronic copy of its 2008 real estate assessment database, which his lawyer declined to review. Real estate tax assessment records maintained by court clerks already are open to public inspection, the Supreme Court pointed out, including through online posting.

Virginia court rules provide noncitizens access to nonprivileged documents necessary for litigation, and Virginia law gives both citizens and noncitizens access to judicial records, the Supreme Court said in its unanimous opinion in McBurney v. Young, written by Justice Samuel A. Alito Jr.

But a statute like the Government Data Collection and Dissemination Practices Act, used by McBurney, only offers a partial workaround, as it applies exclusively to government records about the person making the request, said Megan Rhyne, executor director of the Virginia Coalition for Open Government.

The high court said FOIA laws are meant to make public officials accountable to citizens, and Virginia can draw a valid distinction between citizens and noncitizens because it’s the citizens of the commonwealth who foot the bill for the fixed costs underlying agency recordkeeping.

Alito’s opinion cited several other state FOIA statutes that discriminate against noncitizens, and the Supreme Court’s validation of a financial reason for the distinction may encourage other budget-strapped states to change their laws.

National open-government advocacy groups were aware of that risk, according to Rhyne, who serves on the board of the National Freedom of Information Coalition, a group that signed onto an amicus brief filed by Washington, D.C., lawyer Samir Jain on behalf of transparency groups.

But the availability of alternative methods for the McBurney plaintiffs to get the information they wanted – a point emphasized by Alito – meant the state wouldn’t necessarily avoid costs for data gathering and production.

“I don’t think [McBurney] is carte blanche for a total lockdown for information being sought by noncitizens,” Rhyne said. “It’s sort of a pointless restriction” that won’t necessarily save state officials any time. Out-of-state data seekers will just turn to in-state middlemen to get what they want, Rhyne said.

Further clamp-down by states could provoke a stronger reaction from the data industry, which also filed an amicus brief in McBurney, according to Rhyne.

–By Deborah Elkins

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