Justices conflicted on blocking outsiders’ use FOIA

WASHINGTON — The U.S. Supreme Court on Wednesday seemed conflicted over whether it was legal for Virginia to block out-of-staters from using its Freedom of Information Act to get some of its state documents.

Justices seemed to come down on all sides during arguments over whether Rhode Island resident Mark J. McBurney and California resident Roger W. Hurlbert were illegally blocked from getting public documents in Virginia that in-state citizens could have easily gotten. Virginia’s FOIA law limits access to state citizens and some media outlets.

The two men say it is unconstitutional to not allow everyone access to the protections of a state’s FOIA law, especially considering the growing commerce potential of public records. Especially affected are data miners, who are disadvantaged by their inability to get information directly from Virginia on their own.

“Most public records requests are commercial requests,” lawyer Deepak Gupta said. “It’s going to have an effect on most commercial requesters who are out of state.”

But Virginia’s solicitor general, E. Duncan Getchell, Jr., argued his state has the right to reserve some services and records for its taxpayers, which pay the cost for creating and maintaining public records. Getchell noted that Virginia already limits some things to its own citizens, like in-state tuition at colleges and universities, some business subsidies and welfare payments.

Justices Anthony Kennedy and Sonia Sotomayor both called Virginia’s actions discriminatory during the arguments.

McBurney and Hurlbert, along with data and media companies, challenged the state FOIA law under the Constitution’s Privileges and Immunities Clause — which prohibits states from discriminating against out-of-staters in favor of its own citizens — and the Commerce Clause, which prohibits discrimination against interstate commerce. Hurlbert owns Sage Information Services, which obtains public real estate assessments for private clients. McBurney, a former Virginia resident, wanted to get documents from a Virginia child welfare agency involving a child support petition from his divorce from his wife.

The 4th U.S. Circuit Court of Appeals in Richmond threw this case out, but the 3rd Circuit Court of Appeals in Philadelphia struck down a similar citizens-only FOIA act in Delaware. Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey also have some form of law limiting access to public records for noncitizens, according to court briefs.

Chief Justice John Roberts noted that it wouldn’t cost Virginia that much money to allow out-of-staters to get documents instead of blocking them, saying “It doesn’t seem like that big a deal.”

He also said that it wouldn’t cost out-of-staters that much money to get Virginians to get the documents for them.

“All he has to do is get somebody from Virginia to ask for him,” Roberts said.

Justice Antonin Scalia argued that the purpose of FOIA laws was to get people information about how their governments worked, not to get information across state lines. “They don’t want outlanders mucking about in Virginia government,” Scalia said.

But Justice Elena Kagan noted that the original purpose of the laws has been overtaken by e-commerce. “It does affect out-of-state data collectors,” she said.

Getchell said it was an added burden for Virginia to service out-of-staters. “We want to have a very simple system that allows our citizens to make inquiries without a demonstrated need or cause, because we want there to be sunshine,” he said.

Roberts shot back: “It’s going to be the same system whether you win or lose. “

The justices are expected to rule before the end of June.

Other action

Also on Wednesday, the court said a key 2010 ruling, which requires lawyers to tell their clients if pleading guilty to a crime could cause their deportation, does not have retroactive effect.

The decision is a loss for Roselva Chaidez, who had already been convicted of mail fraud and was in a deportation proceeding. She asked the courts to allow her to take advantage of the new ruling.

Justice Elena Kagan wrote that the 2010 ruling was a new rule, so it doesn’t apply to convictions that came before. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.

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