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The Supreme Court’s ruling last week that states can limit freedom of information act requests to residents of those states is troubling. According to the decision, the Privileges and Immunities clause of the Constitution doesn't apply because the public's right to access public information is not as “fundamental” a right of citizenship as is, say, access to courts. In the oral arguments, Alito immediately challenged the plaintiff’s counsel to explain why any law passed as recently as the 1960s establishes meaningful rights. Later in the arguments, Virginia’s counsel called the passage of FOIA laws a “fad.”
Though on its face, the justices unanimous ruling is unsurprising, given the facts of the case and the legal issues involved, but what is surprising is how it makes light of an important tool for open government that journalists and researchers often rely on. Justice Alito wrote in his opinion that those who wanted information could simply do “a few minutes of Internet research" instead. That’s either ignorance of how governments work or utter disdain for the public’s right to inquire into what its government is doing. Though the justices often say funny things about the Internet during oral arguments, I’m pretty sure it’s the latter.
The Electronic Frontier Foundation, which filed an amicus brief in the case, points out that the argument that only residents have a right to records they paid for with their state taxes is problematic given that over 20 percent of Virginia’s budget comes from federal sources. It’s also false that only residents have a need to know. Virginia is home to a lot of state officials who move on to the national political scene, and investigative journalism on topics of national interest often requires delving into state records to develop a national map of what is going on. According to On the Media, Virginia’s law has an exemption for news organizations that “circulate” within the state, but it’s unclear whether Internet publishing counts as circulation.
My first thought on hearing about this ruling was “huh, maybe this is an information need that libraries can help with.” There are libraries in all fifty states, including the nine that specifically limit rights to residents. We don’t often assist with FOIA requests, but we could. (The Reporters Committee for Freedom of the Press has a handy FOIA letter generator on its site which I’ve often pointed out to students digging for information.) But there are other options, including MuckRock, a service that is currently offering volunteers free accounts if they live in states that restrict FOIA requests to residents.
More to the point, the way this decision is framed suggests we may have to defend rights we have relied on for many decades now that we have a court that is more friendly to corporations than to citizens, some members of which have a perspective the Constitution that is rather like some literalist interpretations of scripture – both ahistorical and doctrinaire.
For more analysis, see
Investigative Reporters and Editors (“The court was particularly insistent on making it clear that access laws are a luxury, unnecessary before the bulk of them were passed in the 1960s, and relatively unimportant today.”)
The Sunlight Foundation (“Some of the investigative work done by non-profits like the Sunlight Foundation, and a fair amount of academic research, will also become an order of magnitude more difficult to perform.”)
Citizens for Ethics and Responsibility in Washington (“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.”)
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