U.S. Supreme Court unanimously upholds constitutionality of Virginia law limiting FOIA requests to Virginians

scales-of-justice2In a win for Virginia’s taxpayers, today the United States Supreme Court handed down a unanimous ruling that upholds the constitutionality of Virginia’s citizenship limitation in its Freedom of Information Act (FOIA), which allows only residents of the commonwealth and news organizations that serve Virginians to utilize FOIA.

Attorney General Ken Cuccinelli argued that due to the excessive burden placed on state resources, the commonwealth’s officials had no duty to respond to out-of-state FOIA requests. Cuccinelli argued that even when the requester is paying “reasonable costs” for staff time and photocopying allowed for under Virginia’s FOIA, those payments do not cover the full expense that taxpayers bear. The payments cover staff time to gather and disburse existing information but do not cover all overhead costs borne by taxpayers that were spent to develop, gather, organize, and maintain the information. Additionally, state employees responding to requests must do so to the detriment of their other work.

This ruling does not affect the exemption in FOIA that allows requests from out-of-state media outlets that serve Virginia audiences.

“We appreciate the unanimous decision of the justices,” said Cuccinelli. “FOIA is an important tool to ensure open government. But responding to FOIA requests is a financial burden on Virginia taxpayers, because while state employees are looking through documents to respond to requests, they can’t do the normal work for the citizens of the commonwealth they are paid to do.

“The court agreed with our argument that FOIA is a service meant to ensure accountability to the commonwealth’s citizens and that Virginia taxpayers should not be required to subsidize FOIA requests from nonresidents.”

McBurney v. Young was argued before the Supreme Court in February by Virginia Solicitor General E. Duncan Getchell, Jr. Two out-of-state plaintiffs brought the case on two separate issues. One plaintiff (McBurney) was seeking child support records from the Virginia Division of Child Support Enforcement. The other plaintiff (Hurlbert) was seeking to collect real estate records from various Virginia jurisdictions for his information brokerage and sued when Henrico County refused to respond to a FOIA request.

The Supreme Court affirmed the ruling of the U.S. Court of Appeals for the Fourth Circuit.

In their ruling relative to Hurlbert, the justices concluded, “Virginia law does not prevent noncitizens from obtaining documents necessary to the transfer of property. Records-like title and mortgage documents-maintained by the clerk of each circuit court are available to inspection by any person. Real estate tax assessment records are considered nonconfidential and are often posted online, a practice followed by the county from which Hurlbert sought records. Requiring a noncitizen to obtain records through the clerk’s office or on the Internet, instead of through a burdensome FOIA process, cannot be said to impose a significant burden on the ability to own or transfer property in Virginia.”

Rejecting Hurlbert’s claim that the citizenship limitation hampered interstate commerce, the justices reasoned, “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.”

Relative to McBurney, the justices stated, “Virginia’s FOIA clearly does not deprive noncitizens of ‘reasonable and adequate’ access to Commonwealth courts. Virginia’s court rules provide noncitizens access to nonprivileged documents needed in litigation, and Virginia law gives citizens and noncitizens alike access to judicial records and to records pertaining directly to them.”

The opinion is available here: http://www.supremecourt.gov/opinions/12pdf/12-17_d1o2.pdf.

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