Justices miss the point

Ruling on Virginia's public records law weakens the cause of open government

The Supreme Court, in a surprisingly unanimous decision, has ruled that states may refuse to release public records to residents of other states. The ruling affects only three states at the moment, but it allows other states to follow suit should they wish to do so.

The case, McBurney v. Young, involved Virginia's law limiting access to public records to state residents. One of the plaintiffs, Roger Hurlburt, is a Northern California resident who makes his living helping clients obtain hard-to-find real estate records. The other plaintiff, Mark McBurney of Rhode Island, sought records regarding child support payments he was owed by his ex-wife, a Virginia resident.

By itself, this ruling is not a huge blow to the cause of open government because both plaintiffs were able to get the documents they needed through other means, and most states do not restrict records to their own residents. But the justices' cavalier attitude toward the principle of freedom of information is troubling nonetheless.

The plaintiffs argued that Virginia's policy violated their constitutional rights under the Privileges and Immunities Clause of Article IV, which says, "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Justice Samuel Alito said the clause refers to "fundamental" rights, not "incidental" privileges such as access to real estate assessments and other information. The high court also found that the Virginia law was intended to give the state's residents information about how their government functions, not to exclude residents of other states.Therefore, the justices reasoned, the law did not violate anyone's rights because it was not intended to discriminate.

The court also declared that there is no constitutional right to the existence of freedom of information laws.

Regardless of a lack of intent to discriminate against out-of-state residents, the effect of the Virginia law is to do just that. McBurney, who had been a Virginia resident and who obtained his divorce and a child-support decree while living there, ought to be able to obtain records regarding the state's enforcement of that degree no matter where he chose to live.

The most annoying argument Alito made was that the Virginia law had only the "incidental" effect of preventing Hurlburt from "making a profit by trading on information obtained in state records." Because state taxpayers pay for releasing public information, Alito said, it is reasonable to limit the privilege of access to them.

That just means Virginia's law is badly written. Oregon's public records law allows the state to charge fees for retrieving and copying public records to reimburse the taxpayers for the expense. Many other state laws do the same. If Virginia did as well, that argument would be null and void.

Besides, Hurlburt's initiative in making a profit by providing a service to his clients is in the grand tradition of American capitalism — something it seems Alito ought to embrace.

If government records are public for residents of that jurisdiction, they ought to be public for everyone. The high court had the opportunity to make that clear. Instead, it muddied the water.


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