FOIA citizenship case can proceed
A 4th Circuit panel reviewed the part of Virginia’s FOIA that says the law can be used only by Virginia citizens (and media operating in the state). The appeals court 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 appeals 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 Delaware’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.”
A FOIA Council subcommittee studied the possibility of amending Virginia’s citizens-only provision (it is one of only five or six states that have such a bar), but decided to wait until the federal litigation is resolved.
Meanwhile, the Midwest director of the Rev. Al Sharpton’s National Action Network said in August that the organization would challenge a similar restriction in Tennessee’s Open Records Act.
To read the full text of the opinion on the 4th Circuit’s website, click here.