Supreme Court Looks at State Public Records Rules

A case before the nation’s highest court could change the way citizens, journalists and entrepreneurs access government-held information.
by | May 2013
 

Update: The U.S. Supreme Court has since ruled on McBurney v. Young. Read about the ruling here.

A case about a state’s public records law does not attract throngs of people eager and willing to stand in line for a chance to witness oral arguments before the U.S. Supreme Court. Yet just such a case could change the way citizens access government-held information -- information sought by journalists, used in mobile apps and that serves as the lifeblood of innovation and competitiveness in a big data economy.

Friends of the court argued all of those things in a case, McBurney v. Young, challenging the constitutionality of Virginia’s Freedom of Information Act, which restricts requests to state residents only.

Read the May issue of Governing magazine.

The case takes its name from one of two non-Virginians, Mark McBurney, who had unsuccessfully sought information about child support payments. A California businessman, Roger Hurlbert, joined the dispute. He was denied access to Virginia property tax information he requested on behalf of a commercial client. As modest and narrow as its origins were, the case claimed violations of both the privileges and commerce clauses of the constitution.

The McBurney petition contended that the case provided an opportunity for clarity on the meaning of privileges, something it noted the Supreme Court had “not grappled with … for decades.” Lower courts had split on the commerce question.

Against that background, the justices took a familiar tack -- namely, looking for a narrow, incremental alternative to declaring a relatively young law unconstitutional, preferring to let the issues “percolate.”

Virginia is among a dwindling number of states that exclude nonresidents from accessing public records. The number was once as high as 10, according to briefs filed with the court, but now only Virginia, Arkansas and Tennessee remain.

During oral arguments in February, Justice Stephen Breyer said Hurlbert had what appeared to be a “very reasonable request.” For his part, Chief Justice John Roberts wondered aloud whether there was a constitutional question to be decided in the case, suggesting that the claims were not weighty enough to be “something that is essential to hold the country together as a national unit.”

Amicus briefs from coalitions of information brokers, credit reporting agencies, and media and Internet companies argued that a new digital ribbon of data was, in fact, increasingly holding the country together. The briefs detailed the large and growing role played by public records in everything from safety recalls and fraud prevention to investigative journalism and a growing universe of smartphone apps.

More than government transparency, they argued that “the business of collecting, aggregating, indexing, and creating new services from public records” constitutes a “competitive interstate information market that creates important societal benefits.” However, Virginia’s citizen-only provision discriminates against interstate commerce and represent economic risk.

On the issue of transparency, Justice Antonin Scalia contended that, owing to the emergence of state sunshine laws as late as the 1960s, the right to government information could not be fundamental. Virginia’s Solicitor General E. Duncan Getchell agreed about the open records statutes, saying, “They were very much a fad.”

No one expects the Supreme Court to act on Internet time. Heaven knows weightier issues have been allowed to percolate much longer than those central to the modern open government movement. But a misstep here comes with risks -- to the disinfecting effect of sunlight on government (to paraphrase a former Supreme Court justice) and to the spirit of innovation in the still-nascent big data economy. The opportunities are too promising and the stakes are too high to entrench digital balkanization.

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