The Supreme Court dealt a blow to the information industry and to open-government advocates on Monday, unanimously upholding a Virginia law that restricts the right of access to public documents to in-state residents.
Ruling in McBurney v. Young, the court said the law, similar to insular statutes in seven other states, did not violate either the Privileges and Immunities Clause or the Commerce Clause of the Constitution.
Critics of the law said balkanized information rules like Virginia’s would hamper the growing information industry which depends, in part, on national access to state real estate, tax, and other records. But Justice Samuel Alito Jr., writing for the court, said alternate means of getting the information are available, so "Virginia neither prohibits access to an interstate market nor imposes burdensome regulations on that market." States, he added, are entitled to give their own citizens preferential access to documents their tax dollars helped create.
Alito gave short shrift to freedom of information laws in general, noting that "There is no contention that the nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted." Alito also wrote, "This court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws."
A coalition of information industry organizations had warned the court in a brief that Virginia’s law is "antithetical to and disruptive of a national economic market in products and services depending on equal access to public record information, and undermines the democratization of information access that enables small information businesses to compete against larger providers."
Christopher Mohr of D.C.’s Meyer, Klipper & Mohr, who wrote the brief for the Coalition for Sensible Public Records Access, the Consumer Data Industry Association and others, said Monday, "The decision is obviously very disappointing and we are reviewing the possible implications." Mohr added that the ruling "demonstrated the risk of handicapping oral arguments."
During arguments on Feb. 20, justices were clearly skeptical of arguments that Virginia’s law had a major impact on commerce, but they also balked at Virginia Solicitor General E. Duncan Getchell Jr.’s seeming insistence that the law had nothing at all to do with commerce.
Deepak Gupta of Gupta Beck in D.C., representing out-of-state plaintiffs, argued to the court that information of the type restricted by Virginia was as important as roads as part of the infrastructure necessary for modern commerce. He argued on behalf of two non-Virginians who were turned away when they needed documents—tax assessment records in one case, child custody information in another.
On Monday, Gupta said he was surprised that the court had so roundly rejected the arguments he advanced. "We failed to convince the court that this was something important," he said. The court’s analysis depended in part on the fact that many of the documents at issue were accessible through other routes, Gupta said, so other challenges involving data that is completely shut off to non-residents of a state could survive.
No matter what the court ruled, Gupta added, the trend at the state level is toward abandoning restrictive information laws, not enacting new ones. Only three of the seven states mentioned by the court—Arkansas, Tennessee and Virginia—actually enforce rules against out-of-state access, according to Gupta.
"These citizens-only policies are very difficult to justify on policy grounds," said Gupta. "We live in a national information economy, and it is hard for me to see states persisting in walling off information. But we were hoping the court would say that."
Tony Mauro can be contacted at email@example.com.