Access in the Courts

It was a busy week in the courts last week for access to government records, and I'm not even talking about the release on Wikileaks of tens of thousands of classified documents related to the war in Afganistan.

Right here in Virginia, three cases in varying stages of litigation were bright on the access horizon.

At the highest level, a unanimous 3-judge panel of the 4th U.S. Circuit Court of Appeals, a federal appeals court governing Virginia, North Carolina, South Carolina, West Virginia and Maryland, ruled that privacy advocate BJ Ostergren could not be punished under a law prohibiting the publication of Social Security numbers legally obtained from public records.

Ostergren wants the government to stop putting SSNs on public records. To grab the attention of the public and the policymakers, Ostergren goes to clerks of court and subscribes to their land-records access service. She hunts for records of prominent people, and if she finds that person's SSN, she posts a copy of the whole land record on her website.

Ostergren's practice ran afoul of §59.1-443.2, which prohibits the intentional communication of another person's SSN to the general public, so she sued to block enforcement of the law against her.

The 4th Circuit agreed with the lower court that the prohibition infringed on Ostergren's right of free speech to protest the Commonwealth's policy of allowing full SSNs to be made available online. The appeals court went one step further than the lower court, though, and said Ostergren’s free speech rights were affected both when she published records of famous people and private citizens.

The appeals court also blamed Virginia for creating the problem in the first place. When it created the subscription service for land records, and in subsequent amendments, it mandated that SSNs be redacted from all land records in the future, but did not make activation of the new subscription services dependent on prior redaction (nor did it appropriate any money to accomplish the task).

The case is still not over. The appeals court remanded to the lower court for further development of proper injunctive relief.

A different 4th Circuit panel reviewed the citizens-only ban found in Virginia's FOIA, and determined that two out of three plaintiffs challenging the provision could continue their suit.

A lower court threw out the case brought by Mark McBurney of Rhode Island, Roger Hurlbert of California, and Bonnie Stewart of West Virginia, saying McBurney and Hurlbert lacked standing, and that Stewart improperly named the Attorney General as the defendant in her case.

The divided panel agreed that the AG was not a proper party to the case because the AG has no special duty to enforce FOIA, so Stewart's claim was barred.

On the other hand, McBurney did have standing because, though he received some of the records he asked for, he was still being denied some policy records because he was not a Virginia citizen.

The court also ruled that Hurlbert had standing because he suffered an ongoing injury to his ability to pursue his "common calling" by not being able to access Virginia's records. One judge disagreed with this holding.

The court did not reach the merits of the case, that is, whether the restriction is unconstitutional, but a concurring opinion encouragingly cited a 3rd Circuit case striking down a similar provision in Delaward's FOI law, and also had this to say:

The ability to quickly and efficiently gather and disseminate information is central to a great deal of economic activity in our aptly-named Information Age. The individual or business that can access relevant information quickest and most efficiently has a distinct advantage when competing in the advertising, technology, entertainment, and business arenas. A statute that discriminates against a nonresident’s ability to access information therefore implicates the right to pursue a common calling in the Twenty-First century in much the same way that it would if it burdened an angler’s ability to catch fish.

Things are just starting out in Pittsylvania County, where a Chatham man has filed a lawsuit against the board of supervisors, saying they wrongly withheld invoices related to legal fees the county has paid to its attorney in a previous FOIA case.

The county gave George Stanhope a list of expenses, rather than the invoices, which did not show which cases were being billed for how much.

Stanhope is asking the circuit court to order the county to produce the invoices, and to find the county in contempt for not abiding by a May 7 writ mandating that the county abide by FOIA. He is being represented by Chatham lawyer Barbara Hudson.