Round-up of articles on FOIA case at U.S. Supreme Court

The Supreme Court's transcript of the entire argument.

SCOTUS Blog: It may not be enough to win a Supreme Court case to claim to be agnostic about a critical issue in the case, even if Justice Antonin Scalia has essentially teamed up to bolster the rest of that lawyer’s argument.  Virginia’s top advocate in court, state Solicitor General Earle Duncan Getchell, Jr., put his case in considerable jeopardy by pretending not to know something that most of the Justices seemed to treat as obvious. On analysis, what had happened to Getchell was that he had come prepared to make one, and only one, argument, and could not adapt when the hearing moved in a different direction.  The case was McBurney v. Young (12-17), testing whether a state can open its records to public access, but then limit access mainly to state residents.

Times-Dispatch: The U.S. Supreme Court heard arguments Wednesday in a Virginia Freedom of Information Act case with roots in Henrico County and will soon decide whether Virginia can deny out-of-state residents access to public records. Virginia’s law, enacted in 1968, allows state residents to request public records for any reason. It applies only to state residents and members of the media with a Virginia audience, allowing government agencies to deny out-of-state requests. Henrico County denied a 2008 FOIA request by Roger Hurlbert, owner of a California-based information service. Hurlbert then joined with Mark McBurney, a Rhode Island resident who had been similarly denied records from the Virginia Division of Child Support Enforcement’s deputy commissioner and director, Nathaniel L. Young. Together, they filed suit.

USA Today: The Supreme Court's justices suggested Wednesday that state laws limiting access to government records to their own state residents might be pointless, but the justices seemed not to be persuaded that the laws are also unconstitutional. Virginia Bureau: With the highest court in the land as the regal backdrop, the Old Dominion is now center stage in a national drama that will likely determine citizens’ rights to public information in all 50 states for decades to come. The nine U.S. Supreme Court justices fired questions in oral arguments on Wednesday as attorneys debated a case challenging the constitutionality of a “citizens-only” provision in the commonwealth’s Freedom of Information Act.

Josh Gerstein, Politico: My read of the transcript is that Justice Antonin Scalia was eager to defend Virginia's right to limit the access law to its own citizens and Chief Justice Roberts seemed to lean that way. No justice seemed certain to rule for the challengers, though Justice Elena Kagan seemed the most open to it, followed by Justices Sonia Sotomayor and Stephen Breyer. FOI laws didn't always get much respect at Wednesday's session. Virginia Solicitor General Earle Getchell Jr. called such laws a "fad."

Reporters Committee for Freedom of the Press: In oral arguments today, U.S. Supreme Court justices questioned whether access to public records is a fundamental right in a case that will determine whether a state can prohibit non-citizens from obtaining its records. However, the justices expressed skepticism over whether the purported administrative burdens states face when responding to records requests by non-citizens actually exist.

Washington Post: Virginia is virtually alone among the states in blocking those from beyond its borders from using its Freedom of Information Act to get state documents and records. The question before the Supreme Court on Wednesday was: So what?  The court spent a spirited hour debating whether Virginia had a good reason for making a distinction between its residents and out-of-staters, or whether the state even needed one.

New York Times: The Supreme Court heard arguments on Wednesday about whether Virginia may permit only its own citizens to make requests under the state’s freedom of information act. The justices appeared to differ about whether such a restriction was sensible, but they seemed largely united that it did not run afoul of the Constitution.

Salon: The Supreme Court seems unsure of whether it’s legal for a state to block out-of-staters from getting public documents through its Freedom of Information Act law. Justices noted that states can legally block out-of-staters from doing things like voting and hunting big game. But they also noted that state records can be used in commerce, which is supposed to move freely across state lines.

Huffington Post: Justices seemed to come down on all sides during arguments over whether Rhode Island resident Mark J. McBurney and California resident Roger W. Hurlbert were illegally blocked from getting public documents in Virginia that in-state citizens could have easily gotten. Virginia's FOIA law limits access to state citizens and some media outlets.

Daily Progress: The court is weighing two streams of constitutional theory. » States already are permitted to limit some services to state residents — such as voting. » States’ public records can be critical to commerce, and commerce is supposed to move freely across state lines. There’s a third precedent that might be relevant here. States accept out-of-state students to their colleges and universities, but typically charge more tuition. If information is public, then it’s public. There should be no blackout just because someone happens to live on the other side of the state line.

Times-Dispatch: Not every question in public policy qualifies as a constitutional matter, and the Supreme Court might rule that Virginia’s law does not violate the nation’s founding federal document. But that does not mean the law is good or wise. If the high court leaves it intact, then the General Assembly should strike it from the books at the next available opportunity.