Virginia law for Virginians

Virginia’s FOI Act is for Virginians only, at least for now

The Virginia Freedom of Information Act residency restriction still stands as valid law after a federal judge in May dismissed a lawsuit challenging the requirement on procedural grounds.

Section 2.2-3704 of the Virginia Code requires a FOIA requester be a Virginia citizen. Three plaintiffs — Mark McBurney, Roger Hulbert, and Bonnie Stewart — were all denied records because they were not Virginia residents at the time of their request. Believing they had rights equal to those of Virginia residents, they sued to overturn the citizenship provision on constitutional grounds.

James R. Spencer, chief judge of Virginia’s eastern district federal court, said the plaintiffs improperly sued the attorney general over FOIA violations because there is no “special relation” between the office and the FOI law. Because Stewart sued the AG only, her case was dismissed entirely.

Counsel for the plaintiffs, Kathryn Sabbeth, formerly of the Institute for Public Representation at the Georgetown Law Center, finds this aspect of the opinion particularly troubling for future challenges to FOIA laws.

“What it suggests is that there is no one to sue to challenge the uniform application of this statute,” she says. Indeed, she continues, if the attorney general cannot be sued on FOIA laws, the next logical step would be suing each agency that denied a request, making it almost impossible to overturn any constitutionally challenged provisions of Virginia FOIA law.”

Sabbeth was part of the team that successfully defeated a similar residency requirement in Deleware’s FOI law in 2007.

You’re Not From ’Round Here

As a West Virginia University journalism professor, Bonnie Stewart gave her students an assignment to gather contracts of various university presidents around the country. Requests from public universities in other states were filled without incident, but when it came to two Virginia universities, the requests were denied because Stewart did not live in Virginia.

“It is sad that a public university would use this provision for public information,” says Stewart, who believes the denial harmed both her students and her teaching ability.

McBurney, once a Virginia resident but now living in Rhode Island, made his FOIA request to the Division of Child Support Enforcement (DCSE) to determine why the division delayed processing his claim to recover child support payments owed by his ex-wife. Instead, he received a flat denial of his request, citing the Virginia citizenship provision.

Though DCSE eventually gave him some records under a different law, he never received the records he requested under FOIA.

McBurney says he believes DCSE is hiding its negligence in his case by not complying with FOIA. “And they’re able to do it because of the citizenship provision,” he said.

Hulbert, owner of a California business that deals in land records, received a similarly disappointing response when he requested records from the Henrico County Assessor’s Office. He, too, was denied the records because he was not a Virginia citizen, and like McBurney, he eventually got the records he wanted, but only after he filed his lawsuit.

Judge Spencer dismissed McBurney’s claims against DCSE and Hulbert’s case against Henrico for lack of standing because, having ultimately received the records they wanted, they had no ongoing injury.

“Getting knocked out for standing was a surprise,” says McBurney.

Says Sabbeth, the specific injuries suffered by the plaintiffs from denied requests prove the greater ongoing injury to all other non-residents who need information that is publicly available to Virginia citizens.

“We believe that a denied request is not necessary to make a case,” she says.

 

Appealing

After the district court setback, the plaintiffs nonetheless remain committed to their cause.

Brian Wolfman of the Institute for Public Representation is preparing materials for an appeal in the coming months.

Sabbeth is focusing on the larger constitutional issues at stake: “A key goal of the U.S. Constitution, and in particular of Article IV, was to knit together the separate states into one cohesive whole.  For one state to bar citizens of neighboring states from access to its public records is to pretend that the state functions as an independent island.  If all states behaved like isolated entities, the unity of the nation would unravel.  We are troubled that the district court did not seem to take this case very seriously, and we are hopeful that the Fourth Circuit will take a different approach.”

by Gardner Rordam