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.

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