December 16, 2017

A Reivew of Oral Arguments in McBurney v. Young: State FOIA and State Rights

Yesterday, I attended oral arguments in the Supreme Court case of McBurney v. Young, which I have previously written about. The case involves two different petitioners who were denied access to state records under a Virginia “freedom of information” law that limits such access to Virginia residents only. McBurney is a former Virginia resident who wanted some records related to an ongoing child support dispute. Hurlbert is a government information aggregator and reseller.

At issue is whether this preferential treatment is constitutional under the Constitution’s “Privileges and Immunities” clause, as well as the “Dormant Commerce Clause.” In my previous post, I discussed these doctrines in more detail, but I devoted most of my time to describing the privileges and immunities argument — essentially that citizens must receive equal treatment across all states when it comes to “fundamental rights.” While waiting for arguments to begin, I was chatting with another person in the audience. I asked him whether he thought that the argument was going to focus significantly on states’ rights, and he said he expected more time to be devoted to the question of whether or not the rights in question were “fundamental.” It turned out that, with the boisterous support of Justice Scalia, states’ rights were the order of the day.

[Update: Transcript of the arguments is available here]

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Supreme Court to Hear State Freedom of Information Act Case "McBurney v. Young"

On Friday, the Supreme Court granted certiorari to McBurney v. Young. This case formally concerns the “Privileges and Immunities Clause” of the Constitution. It raises questions about what access rights citizens have to government records and about who counts as a journalist. Oral argument will likely be scheduled for 2013.

Mark McBurney is a citizen of Rhode Island who requested public records from the Commonwealth of Virginia. His request was denied because the Virginia Freedom of Information Act (VFOIA) prohibits requests that are made by citizens of other states. About seven other states have similar limitations. McBurney appealed to the 4th Circuit, claiming that he should have the same rights of access as Virginians under the US Constitution’s guarantee that, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” McBurney lost in the 4th Circuit earlier this year. However, in 2006, Matthew Lee (a citizen of New York seeking records from Delaware) had won a similar case in the 3rd Circuit. The Supreme Court is now tasked with reconciling this split.
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Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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