Freedom of information: residents only

Supreme Court upholds limits

Information access took a hit last week, when the United States Supreme Court ruled that states have no constitutional obligation to treat non-residents the way they treat residents under their freedom-of-information laws.

To be sure, most of the specific information at the center of the decision in McBurney v. Young1 was not information near and dear to the heart of The Legal Genealogist or the genealogical community in general.

Still, it’s sad to see the High Court — unanimously — come down on the side of freedom of information being a service provided by a state, and not a right enjoyed by the people — all the people — no matter where they live.

The case arose in Virginia, where the state Freedom of Information law provides that “all public records shall be open to inspection
and copying by any citizens of the Commonwealth.”2 That language — limiting the reach of the law to residents, to the exclusion of non-residents — appears in the laws of other states as well, including Alabama,3 Arkansas,4 Delaware,5 Missouri6 New Hampshire,7 New Jersey8 and Tennessee.9

It was challenged by two very different plaintiffs. One was a businessman from California, whose business collects real estate tax records on behalf of clients. The other — McBurney — was a Rhode Island man who was in a dispute with his Virginia-resident ex-wife over child support.

What’s clear is that both plaintiffs got most of the information they wanted through other means. In the case of the businessman, Virginia law already provides that all the records of the circuit courts, including things like deeds, mortgages, liens and the like, are open to the public and anybody can see them by going to a courthouse in Virginia.10

Moreover, most of the one category not covered by the circuit court information — current tax assessment information for Virginia property — is widely available on the internet, and the specific county the business wanted data from had posted its tax information online.11 So, the Court concluded, “Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens’ ability to own or transfer property in Virginia.”12

Fair enough.

And most of the information at the heart of McBurney’s request — information about his dispute with both his ex-wife and the state agency in charge of helping collect from dead-beat parents — had been provided to him under a different Virginia statute, the Government Data Collection and Dissemination Practices Act.13 The only thing he didn’t get was “general policy information about how the agency handled claims like his.”14

Also fair enough.

But I have to part company with the Court when it went on to find that there is no constitutional underpinning to the Freedom of Information laws generally, that such laws are merely “a service that is related to state citizenship.”15

Here, stripped of the citations to other cases, is what the Court said on the general challenge to the law:

This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws. …

It certainly cannot be said that such a broad right has “at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” … No such right was recognized at common law. … Most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them.

Nineteenth-century American cases, while less uniform, certainly do not support the proposition that a broadbased right to access public information was widely recognized in the early Republic. …

Nor is such a sweeping right “basic to the maintenance or well-being of the Union.” … FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966, … and Virginia’s counterpart was adopted two years later… 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.16

And, the Court said, “Virginia’s FOIA law … merely provides a service to local citizens that would not otherwise be available at all. … Virginia … merely creates and provides to its own citizens copies—which would not otherwise exist—of state records.”17

For the most part, the Court’s decision will not greatly affect genealogists’ access to the bulk of the records we use in our research. The usual records we want the most — the vital records, the judicial and legislative records — are usually open by virtue of other laws.

But the decision certainly may impact our access to the out-of-the-ordinary records we may want to see, the ones not included in other laws but that are so helpful in completing our reasonably exhaustive search for documentation. And it certainly bodes ill for our chances of getting the courts to overturn freedom-of-information denials by agencies like the Social Security Administration.

More than anything else, seeing our Supreme Court label freedom-of-information laws as merely providing a service and not as securing a right of the people to information by and about their government is profoundly disturbing.

This is Not a Good Thing.


 
SOURCES

  1. McBurney v. Young, No. 12-17, slip opinion (U.S. Supreme Court, 29 April 2013; PDF of opinion available at U.S. Supreme Court website (http://www.supremecourt.gov/ : accessed 5 May 2013).
  2. Virginia Code §2.2–3704(A).
  3. Ala. Code §36–12–40.
  4. Ark. Code §25–19–105.
  5. Del. Code, Title 29, §10003.
  6. Mo. Rev. Stat. §109.180.
  7. N. H. Rev. Stat. §91–A:4.
  8. N.J.S. 47:1A–1.
  9. Tenn. Code §10–7–503.
  10. See Va. Code §17.1–208.
  11. See McBurney v. Young, slip op. at 8.
  12. Ibid.
  13. Va. Code §2.2–3800 et seq.
  14. McBurney v. Young, slip op. at 2.
  15. Ibid.
  16. Ibid., slip op. at 10-12.
  17. Ibid., at 13.
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10 Responses to Freedom of information: residents only

  1. Tim Campbell says:

    I have to wonder if this matter is as much a denial as it may be a lack of resources or political will to make information widely available. I don’t know about the Virginia FOIA but here in Ontario it is a big deal, requiring a level of service that eats resources.

    • Judy G. Russell says:

      There’s always an economic component to these sorts of things, Tim… but that could be addressed by charging fees that pay for providing the information, not by stopping the flow of information.

  2. Mary Ann Thurmond says:

    I whole heartedly agree that “this is not a good thing!” One of the things that sticks in my craw when elected officials start decreasing, or entirely closing, access to PUBLIC records, is that they seem to “forget” that these records were created using, d-r-u-m-r-o-l-l, funds which came exclusively from taxpayers, aka the PUBLIC. In my opinion that creates a mandate for them to be accessible to the public who paid for them!

  3. Pingback: Genealogical Privacy » Non-residents lose FOI battle

  4. Very clearly reasoned. A right, not just a service.

    Reminds me of the health care arguments. Health care as a right, not just a privilege.

    Maybe the current popularity of states’ rights arguments are an underlying influence here?

    • Judy G. Russell says:

      There wasn’t any reference to states’ rights as such in the opinion, but that kind of thinking may well underlie the decision.

  5. Lisa Marker says:

    The knee jerk reaction that seems to be sweeping the nation’s lawmakers (and yes, that includes the judicial branch of gov’t) to restrict access to public records is just appalling. This is a general trend backwards, rather than forwards.

  6. KAYTHEGARDENER says:

    When I took mandatory civics in jr high, high school & college, we were taught that citizens created govt institutions for their benefits…and the right of the people to petition their govt “shall not be abridged or denied” & such rights transcend state lines (the 1930s rulings that anti-Okie laws were unconstitutional especially because they differentiated the rights of citizens newly entering the state vs oldtimers…) Besides, when Ex-President J Q Adams served in the House of Reps, he presented petitions before Congress requesting that abolition of slavery be the business of the House…His petitions included many thousands of names of non-voters (former slaves & women), FROM ALL OVER THE UNION, and they were accepted by the House Clerk as valid… But then I went to school in the 1960s when a new struggle for civil rights was an everyday occurrence… Over the last few decades, the erosion of our traditional civil rights has accelerated beyond belief!

    This Supreme Court seems to want to make up its own rules & draw illogical conclusions based on its own biases — eg the “personhood of corporations” has no political contribution limits, unlike that of real living people.

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