WASHINGTON — The Supreme Court decided Friday it would hear arguments over whether states can keep out-of-staters from using their Freedom of Information Act laws to get government documents.
The high court on Friday agreed to hear an appeal from Mark J. McBurney of Rhode Island and Roger W. Hurlbert of California, two men who wanted to use the Virginia law to request public documents from state officials. Both were both denied because they are not Virginia citizens. Hurlbert was trying to get property assessment information for his business, Sage Information Services, and McBurney was trying to information from the Virginia Division of Child Support Enforcement in a child support enforcement case against his ex-wife.
Virginia law limits access to state citizens and some media outlets. The two men sued, saying the citizens-only provision violated the Constitution by barring their access to public documents because of their state citizenship. The Constitution says “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
Two federal appeals courts have ruled differently on this issue. The 3rd U.S. Circuit Court of Appeals said Delaware’s citizens-only Freedom of Information Act law was unconstitutional because “access to public records is a right protected by the Privileges and Immunities Clause” of the Constitution. But the 4th U.S. Circuit Court of Appeals disagreed in Virginia, saying the law’s limitations were legal.
“Nothing in the language of the VFOIA prohibits Hurlbert from pursuing his profession in Virginia,” the federal appeals court said.
It also said Virginia’s “citizen-only provision does not bar (McBurney) from engaging in the political process, advocating his own interests, or advancing his political or legal arguments within the commonwealth.”
The Supreme Court will make the final decision. Arguments will likely be scheduled for 2013.