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If the Supreme Court doesn’t open Virginia’s FOIA, lawmakers should.
Wednesday, March 13, 2013
Virginia was on trial before the Supreme Court last month. The question in the case is whether the commonwealth may limit its Freedom of Information Act to Virginians only. In other words, may it deny public records to requesters who live outside the state?
During the hearing, Justice Antonin Scalia wondered, “Is it the law that the state of Virginia cannot do anything that’s pointless? Only the federal government can do stuff that’s pointless?”
No, Justice Scalia, that is not the law. The General Assembly has demonstrated repeatedly that it is able and willing to pursue the pointless, including this limitation written into state transparency laws.
Trying to predict how the Supreme Court will rule is a fool’s game, and no one should take Scalia’s question as support for sunshine. Indeed, based on his reaction during oral arguments, he seemed likely to uphold the in-state requirement.
Virginia, Tennessee and Arkansas are the only three states that do not extend access to public records to non-residents.
Even if the court does not overturn Virginia’s law, lawmakers should. This was hardly a good year for openness in the General Assembly, but there is always next year to do something positive.
Non-residents have legitimate reasons to access local or state public records. Child custody and criminal proceedings can involve people outside the commonwealth. City council activities and property records might be of crucial interest to businesses outside Virginia thinking of expanding here.
Like most FOIA exemptions, the in-state rule is optional, an excuse for governments that want to deny access. Some governments and agencies — Blacksburg and Virginia Tech, for example — usually ignore it.
The most depressing statement at the Supreme Court came courtesy of Virginia Solicitor General E. Duncan Getchell Jr., who said of FOI laws, “They were very much the fad.”
No official of the commonwealth should so trivialize government transparency as mere fad. Virginia’s open government laws empower residents to find out what their government does and to hold their elected officials accountable.
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