Op-Ed: Transparency Doesn’t End at State Line
Last week, the Supreme Court heard oral argument in a case, McBurney v. Young, challenging Virginia’s citizens-only freedom of information law, enacted in 1968, which bars anyone not a resident of Virginia from accessing state public records. Virginia joins only a few other states with such laws, including Arkansas and Tennessee.
The main legal challenge to the law rests on the Constitution’s Privileges and Immunities Clause, which prohibits states from treating citizens of other states in a discriminatory manner absent a substantial reason that advances a proper state objective. The clause is intended to put citizens of all states on equal footing with regard to the fundamental rights of pursuing an occupation, residing in a state, owning property and engaging in political advocacy.
The constitutional problems with Virginia’s law are not mere abstractions. The prohibition has a real and detrimental impact on groups like our organization, Citizens for Responsibility and Ethics in Washington (CREW), which has filed a brief in the case. State and local records bear directly on a variety of issues of national importance, including oversight of political leaders and candidates, and campaign finance issues. As a non-partisan ethics watchdog group that investigates the potentially unethical behavior of government officials, CREW has a fundamental right to access state records.
When CREW wanted to learn more about Wisconsin Gov. Scott Walker’s use of state troopers to round up state legislators for a vote to overhaul the state’s collective bargaining agreement with unions, it used Wisconsin’s freedom of information law. Similarly, CREW turned to Florida’s state freedom of information law to obtain a copy of the Florida Department of Law Enforcement’s investigative report into the potentially criminal conduct of David Rivera, then a sitting congressman. Without access to these records under the state information laws, CREW would have been hampered in its efforts to discover the truth behind allegations of improper and illegal actions swirling around both Walker and Rivera.
Beyond the right to participate in political advocacy, state records are useful in a host of other non-controversial contexts, ranging from epidemiology to genealogy. Medical researchers, historians and businesses all benefit from access to materials maintained by state agencies. Likewise, those seeking to relocate to Virginia may want to research land-use records, local zoning records or tax assessments. Yet Virginia’s citizens-only law would limit access to these records to current residents of the commonwealth. Journalists fare no better as they too are barred from accessing Virginia’s records unless they can show they are representatives of a newspaper published in the state, or a radio or television station that broadcasts in the state.
In defending the law, Virginia cites the need to confer “special privileges” on its citizens, and characterizes the rights of those seeking state records for political discourse as “highly abstract.” But, as politics plays out more and more frequently on a national stage, there is nothing abstract about the right of the public to participate meaningfully in the political process, regardless of state citizenship. Especially for those of us living in the Washington, D.C. area, the boundaries between Virginia, Maryland and the District of Columbia increasingly are of little relevance. Virginia also ignores the fact that non-citizens, like citizens of Virginia, pay for the right to access public records, thereby obviating any burden their requests impose on Virginia officials.
At bottom, Virginia’s defense of its citizens-only information law reflects a refusal to recognize we live in a global world where, thanks to the Internet, information flows freely across state and country lines. As we move to toward greater and greater government transparency, with more information than ever before available to anyone with a computer, there can be no legitimate interest in depriving those who live outside a state access to information routinely granted to those who reside within its borders.