Publisher's Notebook

The U.S. Supreme Court on April 29 upheld a Virginia law that says the commonwealth doesn’t need to respond to Freedom of Information requests from people who live out of state.

The high court’s reasoning in McBurney v. Young apparently hinged on economics. Virginia can draw a valid distinction between residents and nonresidents because the people of the commonwealth are the ones who pay the fixed costs required for agency recordkeeping.

And Attorney General Ken Cuccinelli crowed afterwards that the decision was “a victory for Virginia taxpayers.”

You can ignore the AG’s comment as election-year pablum but you can’t ignore the general disdain that the high court seems to have toward FOIA.

The FOIA and other good-government sunshine laws were passed to provide transparency for the public. They were designed to allow the public to know what was going on, without having to dig too terribly deep.

In the unanimous opinion, Justice Samuel Alito reduces the function of FOIA laws to providing a “service.”

“Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all,” he wrote.

Really?

The plaintiffs in McBurney were a guy in Rhode Island seeking state child support info and a man from California seeking data on property assessments in Henrico County.

Those are somewhat typical of the types of requests that someone outside the commonwealth might have.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, noted several others in a post on the VCOG website.

Other out-of-staters with requests might include a woman in Indiana trying to get nursing home data for placement of her elderly mother. Or a grad student in Alabama trying to get election data for a school project. Or a man in Bristol, Tenn., who is worried about the condition of a bridge across the state line in Bristol, Va., and seeks inspection data.

Rhyne, addressing her piece to the nine justices, put it this way: “I don’t think the opinion the lot of you embraced on Monday gives any thought to just how public records are used day in and day out by everyday citizens who are just trying to make sense of their world and how government is impacting it.”

Here’s the thing about the Virginia FOIA with its newly endorsed practice of spurning out-of-state requests.

It’s awfully easy for a nonresident to ask someone here to make the request. You might even see someone seeking to handle those services for a fee (FOIA ’R’ US, anyone?).

So it sets up an easily avoided hoop that makes this law pretty meaningless. Why have meaningless laws?

Some open-government advocates fear that other states will take a cue from McBurney and join the eight states that have resident-only FOIA laws. If that happens, you might see informal arrangements between businesses or companies to make FOIA requests in their states, similar to way that a law firm near a state border will work with a firm on the other side of the line. All it takes is a resident’s signature, and the FOIA request or lawsuit is ready for filing.

Rhyne noted that the lawyer for the commonwealth, when making his argument before the Supreme Court, referred to FOIA laws as a “fad” of the 1960s.

A fad? No, that’s wrong. A fad is something that goes out of style.

Big week for the U.S. Supreme Court, between the Arizona immigration decision on Monday and the anticipated “Obamacare” case this morning.

You can bet both the proponents and the opponents of the Patient Protection and Affordable Care Act have their vitriolic faxes and hyperventilating email blasts that purport to be “news” releases ready to fly the minute a decision is announced, whatever it may be.

Here’s a refreshing alternative to the week’s lathered Supreme Court coverage, courtesy of Sarah Hedgecock at The Daily Beast.

She has compiled “11 Wacky Supreme Court Facts” for your entertainment.

For example, who knew that Justice Elena Kagan is a frozen yogurt fan and had a froyo machine installed in the court canteen? Or that there’s a gym on the top floor of the Supreme Court building, with a basketball court dubbed “the highest court in the land.”

The friendship of two ideological opposites, Justices Antonin Scalia and Ruth Ginsberg, is no secret, but do you know what they like to do together?

One more preview: You’ll win a prize — say, a cup of frozen yogurt — if you can name the two Supreme Court justices who have appeared on U.S. currency. (Hint: They were on the $500 and $10,000 bills.)

The justices of the United States Supreme Court apparently don’t know much about how today’s modern technology works.

Lawyers USA had the skinny this past week, in a blog post that has gone viral. Check it out here.

Kimberly Atkins, our colleague in the District, writes “DC Dicta,” a blog dedicated to following the Supreme Court, Congress, just about anything in Washington that affects the legal profession. She routinely attends proceedings at the high court.

On Monday, she reported on arguments in City of Ontario v. Quon, a case about whether police officers have an expectation of privacy in personal text messages (some of them sexually explicit) sent on pagers issued by the city.

The court’s tech deficit became apparent about halfway through arguments. The first clue: Chief Justice John G. Roberts asked, what is the difference “between e-mail and a pager?”

Other justices were similarly flummoxed, asking, among other things, if you could get a text message while sending one and if cops could print out the text messages.

Or as Justice Antonin Scalia put it, “Could [the officer] print these spicy little conversations and send them to his buddies?”

In fairness to the court, Kim also reported that one of the lawyers did no better. He got wrapped around the axle when asked whether the texts could be deleted permanently or not by the wireless carrier, ultimately conceding he didn’t know the answer.

One hopes they all – justices and lawyers combined – get it figured out before an opinion is handed down.