My public record: I'm mad as heck at McBurney opinion

Dear justices of the United States Supreme Court -

Your ruling Monday did not surprise me. You said that it's OK for Virginia's FOIA to reject FOIA requests made by residents from other states. Virginia is for lovers, you said, but not for out-of-state FOIA requesters.

Your ruling did not surprise me because there was already some precedent that you do not believe access to government records is a right of the people. The constitutional arguments about common callings and having access to Virginia courts were not particularly compelling, so, yes, I kind of expected a ruling against the two plaintiffs whose FOIA requests were turned down because one was from Rhode Island and one was from California.

I was surprised that your decision was unanimous, though.

Were we at the same oral arguments? I know, oral arguments are notorious for having little to nothing to do with the final outcome of a case, but do you remember some of the questions you asked, some of the things that were said?

Mr. Chief Justice, I thought you got it. You skeptically asked Virginia's solicitor general what real benefit there was to having such a provisions. (A provision only a few other states have. Said the other way around, a provision nearly 45 other states have had no use for.) "I'm just asking you why bother," you said, Mr. Chief Justice. "What cost is there to you, other than overhead? You don't want to keep how Virginia government operates quiet from outsiders when you let its citizens get the access, do you?"

I thought most of you were as dismayed as I was when the state's attorney called FOIA a "fad" of the 1960s. Instead, Justice Alito, you seemed to agree. In the opinion you wrote for the court, you referred derisively to FOIA as merely a "service" being provided to the citizens (note to self: FOIA is just a "service," where provision of road maintenance, schools, fire protection are . . . are . . . ? Help me fill in the blank here.). And I apparently was naive in thinking these are our records since, you know, government exists because of the people and it is to serve the people.

"There is no contention that the Nation's unity foundered in their [FOIA laws] absence," you said, Justice Alito. "Or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted."

I wish all nine of you could all step into my world and hear from the people I hear from.

- A New Jersey contractor who lost a bid for a Virginia job was denied his request to view the winning bid even though the contractor could use the bid to prepare a better bid in the future that could save the government money.

- The non-custodial parent of a child was refused information from a police department about her child because she lived in Colorado.

- A graduate student from an Alabama university was unable to get election records from Virginia to complete a nationwide research project on voting patterns.

- An academic in Massachusetts was denied records from Virginia that he was able to obtain from other states simply because he was from out of state.

Those are real examples. But what about these possibilities?

- The Navy captain who has been stationed in Norfolk and is going to retire here but who is doing a final stint on a project in Florida would like information about the school his kids will be attending when they return.

- The lady who grew up in Richmond but got married and moved to Indiana. Her ailing mother is in Richmond and needs to go into nursing care, and the woman would like nursing home inspection records to inform her choice.

- The family relocating from California to Roanoke would like to see the city's comprehensive plan to determine the potential land use around the neighborhood where he'll be living.

- The citizen of Bristol, Tenn., has concerns about the bridge he travels over every day to work in Bristol, Va., and he'd like to view bridge inspection records.

I don't think the opinion the lot of you embraced on Monday gives any thought to just how public records are used day in and day out by everyday citizens who are just trying to make sense of their world and how government is impacting it.

Justices Alito and company, I am disappointed that the two points that seemed to resonate the most with you -- as to why this really wasn't such a big deal -- was that (a) some of the information was available through other sources, and (b) Virginia taxpayers pay to maintain the fixed costs of maintaining the records.

On the first point, I'd ask you what would have happened if the information hadn't been available through those other sources? Providing online access is a service. Providing the records itself is a function -- statutorily mandated -- of every state and local government body in the Commonwealth.

And did you really describe real estate assessment records as "less essential" than property transfer records, while also noting that "Virginia and its subdivisions generally make [them] readily available to all."?

It's funny because the records are "readily available to all" because everyday taxpaying citizens have told their governments that they think these records are incredibly important, not "less essential." Meanwhile, the clerks of court have set up a system that makes "more essential" land records available online only to subscribers who have to pay handsomely and agree to multiple conditions before they can access them. Subscriptions are priced for the deep-pocketed title industry, not everyday citizens.

But you made up for your dismissiveness of Virginia taxpayer interest in real estate assessment records by championing the taxpayers who "foot the bill" for the fixed costs of maintaining the records. Though Mr. Chief Justice pointed out in oral arguments that the databases the plaintiffs asked for would be maintained even if the plaintiffs never asked for them, in the opinion all nine of you instead agreed with the state's attorney's response to the Chief Justice: that this was a "taxpayer-subsidized system." (I'm curious, though: Why is it that Virginians have a right to access, say, Arizona's records even though Virginians haven't footed the bill there?)

Virginia officials were quick to trumpet your opinion as a victory. The Attorney General's office framed the ruling as a win for taxpayers. "Virginia taxpayers should not be required to subsidize FOIA requests from nonresidents," it said in a statement.

Wait a second. Open records laws are for the taxpayers! You cannot, Virginia AG and justices of the Supreme Court, say that restricting FOIA is somehow good for taxpayers, no matter where they live.

Are y'all prepared to take your argument that Virginians should not be required to subsidize the cost of maintaining records for the sake of people from out-of-state to its logical extreme? Are you ready to ignore the fact that these nefarious Nebraskans, Nevadans, New Yorkers, etc., pay taxes into state and local coffers when they eat, drink, shop and rent hotel rooms in Virginia; support local schools with the taxes they pay on property they own in Virginia; pay business and franchise taxes for Virginia companies they are partners in; and whose employee payroll taxes go to Virginia where they work even though they live in Tennessee, Maryland, North Carolina, Kentucky or West Virginia? Are you ready to tell residents from the other 49 states they can't use our roads or get police and fire help if they wreck on those roads because they haven't paid into any of these services that Virginia is providing them?

Oh justices on high, your ruling also has officials declaring that the restriction protects the workload of the government employee who is taken away from other duties to fill an out-of-state request. The government can charge for the time and resources it takes to fill the request, of course, just like it can for in-state requests, so it's not saving money. It won't save time, either, because guess what those out-of-staters are going to do when they are rebuffed for the color of their state skin? They're going to find someone in Virginia to make the very same request that the government will have to fill. (Hmmmm. Maybe that's what my new job will be: president and CEO of "I'll File Your FOIA For You.")

Messrs. Alito, Breyer, Kennedy, Scalia and Thomas, Mmes. Ginsberg, Kagan and Sotomayer and Mr. Chief Justice Roberts, it is easy to brush off my comments here as a rant or as sour grapes. The opinion is constitutionally sound, you'll say, and that's the end of it.

But Virginia's FOIA and open records laws all across the country have been marginalized by this opinion, by this provision. It is a cynical opinion, reducing the exchange of information to mere commercial transactions instead of recognizing it as the currency of democracy.

The nine of you did no one proud. Instead your unanimous opinion cynically affirmed a sarcastic remark Justice Scalia made during oral arguments: "Is it the law that the State of Virginia cannot do anything that's pointless?"

Pointless indeed.

Read the full text of the oral arguments and the court's opinion.

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