Virginia's citizens-only FOIA limitation

The law is the law is the law.

We can have heartfelt and earnest discussions about whether certain laws should exist. We can also reasonably debate the letter of the law versus the spirit of the law.

Under the Virginia Freedom of Information Act, we should also add to the mix the role common sense plays in the law’s application.

Maybe the fact that the law is weighted in favor of the citizen leads some individuals who fill FOIA requests to relay on the strict interpretation of the law when requests are made of them.

To me, the most prominent among these saying-no-because-we-can issues is the one dealing with Virginia’s citizens-only restriction on who can use the state’s FOIA.

Virginia is one of only a handful of states that imposes a citizens-only restriction: Arkansas, Georgia, New Jersey, Tennessee and maybe New Hampshire. It should be noted that the remaining 44 or 45 states have had the opportunity to amend their public records law to impose a citizens-only provision, but none have. (Though I can’t say for sure that such legislation has never been proposed, I haven’t seen anything like it in the past few years of reading state-by-state legislative round-ups.)

Delaware used to restrict use of its FOIA to Delaware citizens only, but that limitation was struck down by a federal court. The 3rd U.S. Circuit Court of Appeals, which covers Delaware, New Jersey and Pennsylvania, agreed with the lower court that the restriction violated the Privileges & Immunities Clause of the U.S. Constitution.

Delaware’s public records law discriminates on its face between citizens and noncitizens. Although the State has a substantial interest in "defining its political community," the citizens-only provision of its public records law does not bear a substantial relationship to that interest.

The Virginia restriction is currently pending before the 4th U.S. Circuit Court of Appeals in Richmond. A lower court threw the case out on procedural grounds, so the appeal is on those issues; the merits of the case have not yet been reached.

The issue is also to be taken up on July 22 by the Rights & Remedies Subcommittee of the Freedom of Information Advisory Council, prompted by the introduction in the 2010 legislative session by a bill to change the law.

Me? I don’t quite see the point of keeping non-Virginians from using Virginia’s FOIA. It’s not as if a person’s interest in a state, any state, vanishes simply because they no longer live within its borders.

Consider these people who would be denied records under the provision:

• A soldier gets involved in Newport News politics while stationed at Ft. Eustis. He plans to live in Newport News when he retires. The Army sends him on one last posting to Wilmington, Del. While there, he wants to keep tabs on e-mail exchanged between two council members on a proposed development.

• A Connecticut woman’s parents have retired to Williamsburg. The couple is contemplating selling their home and moving into an assisted living facility. The woman would like to see the various health and safety inspection reports for that facility.

• A South Carolina company would like to increase its government contracting business by submitting bids on various projects in Northern Virginia. The company is pretty sure it has the lowest prices, but in order to get a better sense of the going rate, the company wants to see the winning bids from similar projects around the region.

• A man lives in Bristol, Tenn., but works in Bristol, Va., and would like to view the building plans for the reports of the bridge he traverses every day to get to his job.

Much of the resistance to opening up Virginia’s FOIA to non-Virginians seems to be a fear of an increased workload, and a distaste for having commercial entities use Virginia records to make money, especially if that money is made in another state and not put back into Virginia.

The workload issue is one that has been raised in various attempts at amending FOIA, but it is usually rejected: under FOIA, the government can ask for an additional seven working days to complete the request, or the government can ask a court for still more time; plus, the government can recoup its actual costs of filling the request by charging the requester. (There may be a cross-border debt-collection problem to contend with, but there’s nothing preventing the government from requiring up-front payment.)

The commercial-profit issue is also somewhat dubious since FOIA does not concern itself with why the requester wants a record or what he will do with it after he gets it.  Further, commercial entities already use state resources to make a profit (coal mining, for example). And for all our fondness for capitalism, why should we begrudge someone for being innovative enough to develop a product that may be based on records that fills some sort of demand?

The citizens-only provision does not stop people from out-of-state from accessing “our” records, even if it should. The soldier mentioned above can call up his buddy in Newport News and ask him to make the request; the Connecticut woman’s parents can, themselves, get the records; the South Carolina company can hire an in-state lawyer to make the request; and the Bristol, Tenn., man may ask his Bristol, Va., co-worker.

Denying a request because a requester lives in another state seem, then, seems to be saying no just for the sake of saying no. FOIA is based on the exercise of discretion. There is no penalty to impose on the government clerk who fills the request of an outlier.

We should open our records up to everyone, if for no other reason than to remind everyone else why Virginia is a special place.