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April 30, 2013

Supreme Court Strikes a Blow to Transparency

By Anne Weismann

U.S. Supreme CourtYesterday’s decision by the Supreme Court in McBurney v. Young confirmed how out of touch the Court is with the technology that has ushered us into the 21st Century.  The Court upheld the constitutionality of Virginia’s Freedom of Information Act (FOIA), which prohibits anyone not a resident of Virginia from accessing state records. 

Construing the state law as “a mechanism by which ... the citizens of the Commonwealth” holds their public officials accountable, the Supreme Court concluded its effect on nonresident was merely “incidental.”  Moreover, the Court reasoned, nonresident can access at least some state records Virginia makes available for inspection.  Equally as troubling, the Court found no constitutional right to information provided by FOIA laws.  In response to the claim that the state FOIA violates the Commerce Clause by regulating or burdening interstate commerce, the Court held any “market” for Virginia’s public records “is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer.”

The Supreme Court’s exceedingly myopic view of the role state documents play in national issues is entirely out of touch with reality.  As the line between state and national politics increasingly has blurred, state records play an even greater role in shedding light on candidates for national office.  CREW has used Florida’s state FOIA law to obtain information about any number of federal officials, including David Rivera, who was subject to a state criminal investigation. 

Moreover, as the amicus brief filed by CREW and others pointed out, Virginia’s records are useful in a host of other contexts, from medical research to genealogy, that are not cabined by state boundaries.   Indeed, for those of us living in the Washington, D.C. area, the boundaries between Virginia, Maryland, and the District of Columbia are nearly invisible.

Perhaps the Court’s greatest error was its failure to recognize the full impact of the Digital Age, where information flows freely through the Internet, a medium that recognizes no state or country lines.  For today’s citizens of the world, with their ready access to computers, the notion that information is owned and controlled by the state in which it physically resides is both irrelevant and false.   To be sure, the McBurney decision makes passing reference to the impact of the Internet, finding the requirement that nonresident do Internet research in lieu of using Virginia’s FOIA process imposes no significant burden.  But this begs the question, as a wealth of information under Virginia’s control exists only on paper and, as such, cannot be accessed through the Internet.

The McBurney decision strikes a blow to transparency and harkens back to an age when people identified more as citizens of their state of residence than citizens of the United States.  Just as in Citizens United, the Supreme Court once again has shown how out of touch it is with reality.  So once again, the solution lies with the legislature, this time that of the Commonwealth of Virginia.

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