Supreme Court says states can limit FOIA laws to citizens

By: Wendell Cochran

Posted: May 1, 2013 | Tags: FOIA

The Supreme Court ruled this week that states are not required to extend their Freedom of Information act coverage to people who are not citizens of the state. The unanimous opinion also held, once again, that access to government information is not a fundamental right.

The case arose after two non-Virginians sought information under the Virginia FOIA law, which specifically says it applies to citizens of Virginia. One had sought access to information as to why the processing for a child support claim took so long. He was able to obtain much of the information under another provision of Virginia law. The other wanted to get real estate assessment records from Henrico County as part of his business of selling public records. Those records are available online.

Even though they had access to most of the information, the plaintiffs sued the state alleging the distinction between citizens and non-citizens violates the Constitution. The plaintiffs lost their cases in federal appeals court, including the Fourth Circuit Court of Appeals. In 2006, the Third Circuit Court of Appeals had ruled that state FOIA laws could not distinguish between citizens and non-citizens. The Supreme Court agreed to take the case in order to resolve the two opinions.

Justice Samuel Alito, writing for a surprisingly unanimous court, said:  “…We reject petitioners’ sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right. This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”

Effectively, the court was saying — as it has many times in the past — that access to government information is a privilege that can be regulated largely as governments see fit. Unfortunately, we have seen too many examples at all levels of government that regulation often means protecting the interests of public officials over the public at large. In today’s ultra-connected world full of increasingly mobile “citizens,” making it more difficult to obtain information about government activities makes little sense.