Open Government: A State’s Rights Issue, or More?

The Atlantic takes an interesting look at the state FOI case in front of the Supremes:

A lot of American constitutional law involves the tension between “this land is your land” on the one hand and “you’re not from around here, are you?” on the other.

McBurney v. Youngwhich will be argued Wednesday in front of the Supreme Court, is a great example. The issue in McBurney is whether a state can set up an “open records” system that benefits only its own residents, while denying access to outsiders. As an issue, it’s less exciting than gay marriage, affirmative action, or the Voting Rights Act. But it has practical implications for anyone who owns or wants to own property in another state, who does business in more than one state, or who has moved recently from one state to another.

We take access to government records almost for granted. In fact, the challengers in McBurney argue that, because of its importance for business and daily life, such access has become a basic building block both of national citizenship and of interstate commerce. Virginia, however, argues that records access is simply a matter of local concern, like voting.

During the 1960s and 1970s, the country underwent a quiet revolution in open government. In 1966, Congress passed the Freedom of Information Act (FOIA), and all 50 states — those, that is, that didn’t already have “sunshine laws” — followed suit. Those laws are now a key part of politics, news-gathering, and business. They allow a requester to demand governmental records for any reason, and they require government to furnish copies without an excessive charge. FOIA requests are used to expose governmental wrongdoing, provide cheap discovery in litigation, fuel large-scale journalistic investigations, create multi-state research surveys, and obtain detailed data that can be mined, exploited, and sold.

Most states have opened their records to anyone who asks. However, Virginia and Tennessee extend the guarantee only to those within their borders. (Some other states have ambiguous laws providing access to every “citizen,” which could mean state citizen or federal. Delaware limited access to in-staters until the Third Circuit struck that requirement down in 2006.) The challengers argue that the “citizen only” laws conflict with two provisions of the Constitution. One is the “privileges and immunities” clause of Article IV; the other is the so-called “dormant commerce clause,” which courts have deduced from Congress’s power to regulate commerce “among the several states.”

Much more here.

Virginia unleashes the worst FOI bill in recent memory…

Make no mistake about it: this bill is an unmitigated disaster, an epic reversal of the presumption of openness that forms the basis of public records law. If you know anyone in Virginia interested in access to information, please help sound the alarms, for this is as bad as it gets!

A bill speeding through the state legislature upends a major tenet of information access, say the foes of the measure.

House Bill 1524 seeks to reverse the “open unless closed” presumption of the Freedom of Information Act to make the law “closed unless open,” according to Megan Rhyne, executive director for the Virginia Coalition for Open Government.

Rhyne and Ginger Stanley, executive director of the Virginia Press Association, spoke out against the bill when the senate FOIA subcommittee took up the legislation Wednesday. The panel reported the bill to the Committee on General Laws that meets on Monday…

Current law states that information related to children participating in state or local parks and recreation department programs is public record unless a parent opts out of disclosure, according to Rhyne. Such departments began providing “opt out” boxes on registration forms for parents to check off for their children since the state enacted the law in 2004.

“This one flips [the presumption] on its head so that the default rule is these records about children in parks and rec are closed unless somebody flips the switch to make them open,” Gernhardt explained.

Stanley stated in an email Wednesday that, under FOIA, records and meetings remain open unless specifically stated as an exemption. Even then the custodian of record may choose to release the information. Likewise a public body can choose not to close a meeting. Such rules pertain to information in school directories, according to Stanley.

“Unfortunately, the senators that heard testimony this morning were voting with their hearts (it was all about the children) instead of trying to understand the code section (2.2-3705.7-22) that already gives proper protection to the participants as long as the opt out box is checked on the registration form,” Stanley states.

Rhyne and Stanley also have testified that such a change to the philosophy of FOIA could set a precedent and open the door for similar alterations, Gernhardt said. The attorney indicated he couldn’t predict whether such legislation would lead to further changes in the state law.

Del. Ronald A. Villanueva, R-Virginia Beach, sponsored the bill in the house where it met almost no opposition. The House of Delegates on Jan. 25 passed the bill by a 96-1 vote. Delegates representing the Northern Shenandoah Valley voted in favor of the bill’s passage. Del. Beverly Sherwood, R-Winchester, did not vote.

No incidents have been reported since 2004, according to Rhyne, who, in a coalition newsletter, also refutes claims that this legislation would enhance protection for children. Games and practices are held in public places; rosters and schedules are freely distributed and shared with participants, according to Rhyne. Schools often provide directory information for all children whose parents have not opted our and then share that with school families. In fact, the Family Educational and Rights Privacy Act stipulates that director information is open to the public.

Parent-teacher associations routinely share children’s contact information to vendors of school-related products and services. Newspapers publish honor roll lists and congratulatory messages that name children, Rhyne notes. Commercial entities often share children’s contact information through magazine subscriptions and video game registration. Privately run sports leagues publish participant information that coaches, teachers or vendors can use, according to Rhyne.

The Supremes Take a Rare State FOI Case…

Tony Mauro’s excellent synopsis

United State Supreme Court Building

United State Supreme Court Building (Photo credit: Wikipedia)

does a nice job of underscoring the stakes here, in which the High Court takes up Virginia’s “residents-only” FOI clause:

The Supreme Court agreed on Oct. 5 to review a Virginia case that could put a stop to the increasing balkanization of state freedom-of-information laws.

At issue in McBurney v. Young is a provision of the Virginia FOI law that limits access to state documents under the law to Virginia residents — though it makes an exception for out-of-state news outlets that circulate or broadcast within the commonwealth. A growing number of other states, including Arkansas, Tennessee, New Hampshire and Georgia, have similar provisions or policies restricting access to state residents only.

News organizations and good-government groups have joined the case to make a strong argument that the law impedes reporting and public accountability. But they, the plaintiffs and other participants in the case have also framed the law as an infringement on the national “information industry” — potentially a winning argument before a pro-business Court.

Enhanced by Zemanta

Virginia Supremes to Hear Interesting Sunshine Case

This is a case worth watching, as this issue bedevils FOI advocates across the country: officials using e-mail to skirt open meetings laws…

Virginia’s Supreme Court is scheduled to hear arguments Monday in a case arising from Fairfax County schools that could impose new limits on how elected officials use e-mail to discuss public business.

The key question is whether hundreds of e-mails, which Fairfax School Board members sent to one another before a controversial vote to close Clifton Elementary School, constituted secret meetings in violation of the state Freedom of Information Act…

In the Fairfax case, justices will have to determine whether School Board members’ e-mails involved “virtually simultaneous interaction.”

That is the standard the state Supreme Court set in 2004, when it decided that e-mails sent among Fredericksburg City Council members — at intervals ranging from four hours to two days apart — were not “virtually simultaneous” and thus did not count as a meeting.

Virginia General Assembly Passes the Lobbyist Privacy Protection and Corruption Stimulus Act….

Well, they may as well have named this mind-bogglingly bad bill that, for it will effectively provide the most secretive and untraceable communications (read influence-peddling) channel in any state anywhere. This is the single worst FOI exemption I have seen in years:

People filing Freedom of Information Act, or FOIA, requests may not be permitted to know the identity of a person or entity who is communicating with policymakers under new FOIA exemptions, which sailed through the General Assembly on Thursday.

House Bill 141 would shield information about anyone who contacts a public official unless the conversation includes mention of a public business transaction. Email records obtained under FOIA will no longer feature information identifying people who talk with local lawmakers.

People who support government transparency say the proposal provides cover for corruption, because lawmakers could redact the name of a lobbyist as easily as they could black out that of a concerned constituent.

Um, yeah. And I can think of a million and one ways in which such an exemption will run directly counter to any notion of accountability. Imagine the FOI request that yields a treasure trove of seemingly unethical conduct on behalf of a public official….but no one knows who the secret party on the other end of the conversation is! Lobbyists, cronies, and all sorts of money peddlers must be licking their chops. 

 

 

Gun Secrecy Bill Dies in Virginia…

Miracles never cease

A state Senate committee has killed a bill to close concealed-weapons permit information to public view.
Del. Mark Cole, R–Spotsylvania, said he brought the bill because he doesn’t think concealed-carry permits should be public, the way marriage licenses and divorce decrees are.

“This would treat the concealed-carry permit info similar to how we currently treat things like driver’s licenses,” which are not open to the public, Cole said.

His bill, which had already passed the House, was supported by gun-rights groups, which say publicizing the information could endanger those who get concealed-carry permits for protection.

 

Non-Virginians Have No Right to Make FOI Requests, Court Says

Non-Virginian citizens have no right to request public records from Virginia agencies, the 4th Circuit ruled, upholding the constitutionality of the state’s Freedom of Information Act.

Mark McBurney currently lives in Rhode Island, but he was divorced in Virginia and filed for child custody and child support in Virginia. After the Virginia Division of Child Support Enforcement took nine months to file a child-support petition on his behalf, he asked the department to reveal how it processed his petition and why the delay occurred.

Since McBurney is not a citizen of Virginia, however, the agency rejected his request under the state Freedom of Information Act.

Roger Hurlbert, a citizen of California, was similarly denied access to Virginia assessment records of certain real estate parcels. Hurlbert claimed that his business depended on procuring public records for his clients.

In a federal complaint, McBurney and Hurlbert claimed that the state law’s “citizens only provision” constitutes impermissible discrimination.

Finding that the law did not infringe on either man’s rights, a federal judge in Richmond awarded summary judgment to the officials of Virginia’s Child Support Enforcement division and Henrico County’s Real Estate Assessment Division.

Several First Amendment watchdog groups and media outlets supported McBurney and Hurlbert in their appeals, but a three-judge panel affirmed the lower court’s decision without considering many of these arguments.

Follow

Get every new post delivered to your Inbox.

Join 436 other followers