High Court Says Public’s Right to Know Not Basic to the Well-being of the Union

By Steven Brown

PROVIDENCE, R.I. – Unfortunately, it’s now official. The public’s right to know is not “basic to the maintenance or well-being of the Union.”

That is the essence of an April 29 U.S. Supreme Court decision upholding the constitutionality of a provision in Virginia’s Freedom of Information Act which guarantees access to public records to in-state residents only.

The lead appellant is Rhode Island resident Mark McBurney, a Pawtucket lawyer who was denied records from Virginia’s Division of Child Support Enforcement solely because of his out-of-state status.

Last October, the Supreme Court agreed to review a federal appeals court ruling that Virginia’s discriminatory treatment of McBurney was constitutional.

In reaching its conclusion, the court rejected the arguments offered by McBurney and a number of open government organizations that challenged Virginia’s attempt to close off access to public records at its geographic borders.

The groups argued that the Privileges and Immunities Clause, the constitutional provision at issue in the case, protects non-residents from discrimination by the state in allowing access to public information. But the clause is implicated only when certain “fundamental” rights are at issue, and the court simply didn’t see anything fundamental in the denial of public records to non-residents.

In the court’s words: “FOIA laws are of relatively recent vintage… 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.”

You might never know that this is the same constitutional provision used by the court to strike down, for example, a New York law that denied only non-resident taxpayers a deduction from that’s state income tax for alimony payments. Obviously, some rights are more important than others.

On the positive side, only a few other states – none of them in New England – have enacted discriminatory freedom of information laws like Virginia’s. Nonetheless, it is somewhat troubling to see how easily the Supreme Court brushed aside the public’s strong – yes, even fundamental – right to monitor the workings of another state’s government.

We can only hope the decision does not encourage other states to become as parochial as Virginia and deny people access to information based solely on their zip code.

Steven Brown is executive director of the ACLU of Rhode Island.

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