Analysis Law and Policy

Virginia Fights to Keep Government Records Out of Public Eye

Jessica Mason Pieklo

Conservative anti-choice lawmakers in Virginia have a vested interest in keeping public records open only to Virginians.

Open-records laws exist at the state and federal level to make government more transparent. These freedom of information acts (FOIAs) dictate how government agencies must keep records related to their activities and how citizens can access those records. Most state FOIA laws are written very broadly so that state records are open to everyone, not just citizens of a specific state. In an age when it’s possible to monitor state legislative committee testimony on pending anti-choice bills via Twitter, and when activist organizing crosses state lines as a matter of course, it’s almost impossible to imagine that states would have the right to limit access to public records to its own residents. But that’s essentially the issue before the Supreme Court, in a potentially significant case that has gone largely unnoticed in a docket filled with voting rights challenges and same-sex marriage.

Arkansas, Tennessee, and Virginia are the only states that currently restrict access to their agencies’ public records for citizens of their own states. It’s a challenge to the Virginia law that is currently before the court. Under the 1968 Virginia Freedom of Information Act, the right to inspect and copy public records is limited to “any citizens of the Commonwealth.” The law provides some exceptions for media, and the state has argued that the law only applies to non-judicial records. Court records, including real estate titles, tax files, and court judgment files, remain open to all. But access to all other public records are restricted to the state’s citizens.

In the case before the court, two men, neither a resident of Virginia, sought access to public records for arguably “personal” rather than “economic” reasons. Mark McBurney’s former wife allegedly defaulted on an obligation to provide support for their son, and he asked the Virginia child support enforcement agency to seek support payments from the boy’s mother while he was living in Australia. The agency filed the petition, but McBurney didn’t believe the agency was pursuing the matter diligently, so he asked the state for all records dealing with the child support arrangement between him and his wife. His request was denied by the state because McBurney no longer lived in Virginia. 

Roger Hurlbert’s claim is a little different. Hurlbert operates a small California company called Sage Information Services. Part of his business is to obtain public records from real-property assessment officials on behalf of his clients. In 2008, a client hired Hurlbert to obtain tax documents from Virginia’s Henrico County, but the request was turned down due to his non-resident status.

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The two men joined in a lawsuit to challenge the citizens-only provision, claiming violations of both the Privileges and Immunities Clause and the Commerce Clause, arguing it is unconstitutional for states to restrict access to public records on the basis of state citizenship. But the Fourth Circuit Court of Appeals rejected their claims. on the grounds that they were seeking only records of importance to them personally.

The men appealed, and the Supreme Court agreed to hear the case, giving it an opportunity to better define just how protected states may be in shielding disclosure of public records. And as hard-right legislators in states like Virginia fill the state’s board of health with anti-choice ideologues, its a decision to watch carefully.

Arguing that America now has a “burgeoning marketplace for public records,” McBurney and Hurlbert have tried to keep their arguments in the case concise and compelling. They note that the Supreme Court “has not grappled with” the meaning of the Privileges Clause “for decades,” and that this case provides an opportunity to provide some clarity. They argue that, on the “common market” theory of equal access to residents and non-residents alike, mobile Americans now undertake a variety of actions daily that depend on quick access to data in some government files and that the rigid boundaries envisioned by states’ rights proponents are antiquated in an age when citizens move and work across state laws. Furthermore, they argue, getting, compiling, and publishing public records is itself a major industry and the effect of laws like Virginia’s is “to deny non-citizens the ability to pursue that business within Virginia on equal footing.”

Open access to records, they argue, is of fundamental importance to “real democracy.” And yet, the McDonnell administration disagrees.

Virginia officials initially waived their right to answer the petition, signaling they were willing to live with whatever outcome the court decided without sinking state resources into defending the law. But the court specifically asked for a response last summer, so Virginia complied. In defending the law, the McDonnell administration first tried to avoid it, arguing that, as the Fourth Circuit had concluded, access to a state’s public records is not the kind of activity that is protected under the Privileges Clause. In essence, Virginia claims, non-citizens of the state only have a protected right to access public records in other states if those records, and the purpose of accessing them, have purely economic interests.

How broadly or narrowly will economic interests be defined? We’ll soon see. The Supreme Court has never fully defined the boundaries of the Privileges and Immunities Clause, but it is generally understood to function as an equalizer among the states—an important idea that separated the Constitution from the failed Articles of Confederation. The streamlined flow of information is just as critical to the overall function of democracy as the streamlined flow of goods, McBurney and Hulbert argue, and as technology has made our state borders even more porous, encouraging states to interfere with that free-flow of information does impact our common economy.

It’s a common-sense argument that the court should buy. Whether or not it does likely depends on how the justices see the case—whether they think it invokes the fundamental question of states’ relationship with citizens, or whether they see it as a test of a state’s power to be transparent and accountable only to its own political constituency.

Arguably, every non-citizen requesting public records has some personal stake in obtaining those records, just as arguably keeping state agencies accountable has an economic impact nationally. And while it’s easy to get bogged down in the philosophical legal arguments around this case, doing so loses the practical implications of what would happen should the court side with Virginia. Conservative lawmakers have already shown an unwillingness to legislate openly and to share with constituents and non-constituents. With more openly anti-choice voices filling administrative agency positions in states led by conservative governors, open-records laws are a critical tool in policing agency action. If they’re given another way to avoid disclosure and shield themselves from accountability, they’ll take it.

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