Supreme Court Rejects Constitutional Challenge to Virginia Public Records Law

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act.  As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution.  The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Citizens of other states therefore do not have a general statutory right under the Act to access public records in Virginia.

The case was brought by citizens of Rhode Island and California.  One sought documents relating to a state agency's delay in filing a child support petition on his behalf.  His request was denied because he was not a Virginia citizen, though he later obtained most of the information he wanted from another agency.  The other petitioner operates a business that collects real estate tax records. His request for tax records from a particular county in Virginia was likewise denied because of his location.

The petitioners filed suit under Section 1983, contending that the residency requirement of the Virginia FOIA statute was unconstitutional.  The Court ultimately rejected those challenges.  With respect to the Privileges and Immunities Clause, the Court emphasized that its protection extends only to privileges and immunities that are "fundamental."  It went on to hold that the opportunity to pursue a business, the ability to own and transfer property, and the ability to access courts, while fundamental, were not abridged by the FOIA provision at issue.  As the Court held,

the [Privileges and Immunities] Clause does not require that a State tailor its every action to avoid any incidental effect on an out-of-state tradesman.

With respect to access to courts, the Court noted that all persons have access to judicial records in Virginia, as they do to information about himself or herself compiled by a Virginia agency. 

In addition, the Court held that access to public information, as a general matter, is not a fundamental matter protected by the Privileges and Immunities Clause.  The Court observed that it

has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.

In the absence of a long-standing right to access government documents writ large--a statutory right the Court pointed out is of fairly recent vintage--states are not required place citizens and non-citizens on equal footing under their public records laws.

Finally, with respect to the petitioners' dormant Commerce Clause argument, the Court found that nothing about the residency requirement in the Virginia FOIA statute was driven by a desire for economic protectionism.  Thus, the act did not regulate or burden interstate commerce in violation of the dormant Commerce Clause.

The upshot of this ruling is that the agencies of government in Virginia may continue to deny public records requests made by out-of-state persons or companies.  This result may lead to businesses in Virginia that specialize in making requests for non-Virginians.  Such a service may be of particular importance to out-of-state media organizations.

Supreme Court Agrees to Review Virginia Records Law

Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law.  The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added).  In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his divorce and child custody case litigated in Virginia.  When McBurney's ex-wife defaulted on her child support obligations, McBurney submitted a public records request to the state Division of Child Support Enforcement for certain documents relating to his family's case.  The department denied his request, citing, among other things, that he was not a Virginia citizen.

McBurney challenged this basis in federal court, asserting that limiting the scope of the law to Virginia citizens violated the Privileges and Immunities Clause of the U.S. Constitution. 

Meanwhile, a second plaintiff -- a California resident operating a tax assessment records business that relied on access to Virgina records -- had brought a separate case challenging the same provisions. This plaintiff also asserted a P & I claim, but added a "dormant" Commerce Clause claim, asserting that the law improperly burdened interstate commerce.

As to the P & I claims, the district court held that no fundamental right was at issue, and therefore the P & I Clause was not violated. As to the Commerce Clause, the district court denied the claim, holding that the statute does not "implicate principles of economic protectionism" and therefore is constitutional.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the plaintiffs sought Supreme Court review.

Seeking Supreme Court review is not without risk for media organizations.  After all, a ruling from the Supreme Court affirming the validity of Virginia's law might open the door to states across the country adding similar provisions to their public records laws, in hopes of limiting access.  Such a development would require out of state media organizations to ask a resident "proxy" to make a request on the organization's behalf.

We will keep you posted as the Supreme Court considers this case.

Newsroom Legal Fights Go On, Even in Bad Economy

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues.  The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues.  According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing.  Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

Pyrrhic Victory in Convertino Case?

We have closely followed the twists and turns in Detroit Free Press reporter David Ashenfelter's efforts to avoid being forced to reveal his sources in the civil action against the Department of Justice brought by former federal prosecutor Richard ConvertinoThis spring, a federal judge in Michigan allowed Ashenfelter to invoke his rights under the 5th Amendment in order to avoid testifying under oath about his sources.

Last week, the collateral damage from Convertino's legal crusade continued to spread.  This time, Convertino was seeking some 736 DOJ documents that he claimed would provide him information as to the identity of the DOJ employee who presumably leaked to Ashenfelter information about the investigation into Convertino.

In a loss for Convertino that, ironically, also constitutes a loss for media interests, D.C. federal district court judge Royce Lamberth ruled last week that all 736 documents were protected from disclosure by a variety of privileges, including the deliberative process privilege.  In addition, in the same opinion, Judge Lamberth held that private emails sent by federal prosecutor Jonathan Tukel from his DOJ account were covered by the attorney-client privilege and need not be produced.

As to the first part of the opinion, the deliberative process privilege is, all too often, the exception to the Freedom of Information Act that swallows the rule.  It covers “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”  The privilege is easily used as a shield by government agencies to protect from disclosure all variety of internal documents that might otherwise be subject to public disclosure.  While Judge Lamberth's opinion did not appear to break any new ground here, it certainly confirmed the many ways that government employees can make disclosure of records more complicated.

The second part of the opinion was more interesting, as it discussed an area of some interest to open government advocates across the country -- the status of private emails sent from a government account.  In this case, Convertino argued that Tukel should not be able to invoke the attorney-client privilege for these 36 emails -- which were sent to or from his personal attorney -- because, by being sent through the government's server, they were, per se, revealed to a third party.  Convertino asserted that because DOJ email policy explicitly gave the Department the right to read any DOJ email, Tuker had no reasonable expectation of privacy in these emails.

Judge Lamberth disagreed, holding that "[o]n the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account."

The ruling clearly rolls back the widely held view that what is done on government computers is presumptively the property of the government, and therefore the people.  Journalists in states with public records acts may now find themselves fighting in court for what was once assumed to be clearly public -- emails sent from government accounts by government employees.

Obama Administration Denies Access to White House Visitor Logs

The Obama Administration has denied and the Citizens for Responsibility and Ethics in Washington ("CREW") access to the names of White House visitors. The Obama Administration’s position on visitor logs is consistent with that of the Bush Administration—but appears to be inconsistent with President Obama’s promise of transparency and openness declared earlier this year. has the complete story, including its own FOIA request for the visitor logs, CREW’s related FOIA request, and a copy of the complaint filed by CREW on June 15, 2009, in the District Court for the District of Columbia seeking, among other things, an order compelling the government to release the records requested by CREW.


CREW has been litigating the visitor log issue for some time. As reported on, CREW previously locked horns with the Bush Administration over access to the names of visitors to the White House and Vice President Dick Cheney’s residence. In its lawsuit against the Department of Homeland Security (the agency under which the Secret Service, the keeper of the visitor records, falls), a federal judge ruled that visitor logs are records subject to FOIA, not privileged presidential communications, and ordered DHS to process CREW’s FOIA request and release all responsive and nonexempt records.  


Here’s an excerpt of the district court’s January opinion concerning the presidential communications privilege:

The presidential communications privilege, as its name and the [D.C.] Circuit [Court]’s opinions suggest, extends only to communications. The visit records sought by plaintiff need only consist of the visitor’s name, date and time of visit, and in some cases the name of the person requesting access for the visitor and in some cases the name of the person visited. Such information sheds no light on the content of communications between the visitor and the President or his advisors, whether the communications related to presidential deliberation or decisionmaking, or whether any substantive communications even occurred. “The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.” links to the full district court opinion here.


DHS filed an appeal of the district court’s January 2009 ruling to the D.C. Circuit on January 14, 2009—just a few days before President Obama’s inauguration. In April, the D.C. Circuit gave the new administration an opportunity to let the appeal go by issuing an order to show cause why the appeal should not be dismissed for lack of appellate jurisdiction.  Rather than backing away, the Obama Administration filed a brief in May 2009 requesting that the D.C. Circuit take jurisdiction to review the district court’s order. 


Stay tuned to see how the Obama Administration responds to CREW's FOIA lawsuit filed on June 15. is reporting that the White House is now, as of June 16, "reviewing" its policy on access to visitor logs.

Office of Science and Technology Policy Invites Comment on Transparency and Open Government

Today the Office of Science and Technology Policy published a notice in the Federal Register requesting public comment on issues related to transparency and open government. The Federal Register notice is published here.

We reported earlier this year about President Obama’s transparency and open government memorandum signed on January 21, 2009—President Obama’s first full day in office. Among other things, this memorandum directed the Chief Technology Officer, along with the Office of Management and Budget and the General Services Administration, to develop recommendations for an “Open Government Directive.” The notice published today now invites the public to contribute to the recommendations that will become part of the Open Government Directive. 

Here is an excerpt from the notice:

The purpose of this Federal Register notice is to solicit public participation in the development of those recommendations. There is a great deal of dispersed information among the nation’s citizens. With twenty-first century tools, the United States is in a unique position to take advantage of that dispersed information to inform the policymaking process. Our goal is to use the principles of open government to obtain fresh ideas about open government itself.

The notice seeks comment on “government-wide or agency-specific policy, project ideas, and relevant examples.” Some possible areas of comment include identifying what government information should be readily available and searchable online and how government operations may be made more transparent and accountable.

According to the notice, the Open Government Directive will be issued by OMB and used to “instruct executive departments and agencies on specific actions to implement the principles set forth in the President’s transparency and open government memorandum.” Click here for more information on these broad principles of openness.

Comments from the public are due June 19, 2009. The Federal Register notice includes more information on suggested areas for comment and filing procedures.

President Obama's Budget Funds FOIA "Ombudsman"

In a recent post, we reported that President Obama issued a Freedom of Information Act memorandum directing executive departments and agencies to administer FOIA with a presumption in favor of openness and a memorandum calling for transparency in government. President Obama recently took an additional step that appears to provide evidence of the administration’s continued commitment to open government: On February 26, 2009, President Obama submitted a budget for fiscal year 2010 that includes $1 million for the new Office of Government Information Services that would serve as an “ombudsman” for FOIA requests.

OGIS dates back to December 31, 2007, when President Bush signed the OPEN Government Act that created this new office. The OPEN Government Act expressly provides that OGIS is to be located within the National Archives and Records Administration (see Section 10). The statutory purpose of OGIS is to review the FOIA policies and procedures of government agencies, review the agencies' FOIA compliance, recommend policy changes to Congress and the President, and offer mediation services to resolve disputes between persons making FOIA requests and agencies (mediation under the act is a nonexclusive alternative to litigation). According to Sen. Patrick Leahy, who sponsored the act, Congress “placed OGIS in the apolitical National Archives to enhance this office’s independence, so that all Americans can be confident that their FOIA requests would be addressed openly and fairly.”

Only weeks after President Bush signed the OPEN Government Act, the Bush administration submitted a budget for fiscal year 2009 that attempted to locate OGIS to the Department of Justice and that provided no funding for the office. Some criticized the Bush plan as an untenable conflict of interest—how could Justice impartially police FOIA compliance when it is the agency responsible for defending lawsuits brought against the government under the act? Others accused the Bush administration of trying to circumvent the OPEN Government Act and to render the newly created OGIS powerless.

Now, under the Obama budget plan, OGIS would be housed in the National Archives and Records Administration, as required by the OPEN Government Act, and it would be funded with $1 million. The establishment and funding of OGIS is not yet final as Congress has not yet completed the budget process, but President Obama’s proposed funding for and location of the office is a step in the right direction for advocates of openness.  For additional commentary and critique of President Obama's performance in the area of government openness, see this recent article from the New York Times.

President Obama Calls for FOIA Improvements and Open Government

On his first full day in office, President Barack Obama issued two memoranda to the heads of executive departments and agencies plainly declaring that government departments and agencies must be open for public scrutiny.

In the Freedom of Information Act (“FOIA”) memorandum, President Obama directs executive departments and agencies to administer FOIA with a presumption in favor of openness. 

In the face of doubt, openness prevails.  The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.  Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.  In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

The FOIA memorandum further directs agencies to adopt policies in favor of open disclosure and to apply those policies to all decisions involving FOIA.  Agencies should not merely react to FOIA requests but, rather, should proactively make information available to the public, including through use of modern technologies.  Furthermore, "disclosure should be timely."

The FOIA memorandum also directs the U.S. Attorney General to issue new guidelines governing FOIA to heads of executive departments and agencies and directs the Director of the Office of Management and Budget (“OMB”) “to update guidance to agencies to increase and improve dissemination to the public, including through the use of new technologies. . . .”  Both the Attorney General’s and OMB’s guidelines are to be published in the Federal Register.

The full text of the FOIA memorandum is linked here.

In addition to the FOIA memorandum, President Obama also issued a memorandum entitled, “Transparency and Open Government.”  The transparency memorandum broadly declares the following:

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, strengthen our democracy and promote efficiency and effectiveness in Government.

The transparency memorandum goes on to set out three principles concerning the manner in which government "should" operate, and it states the actions executive departments and agencies should take to further those principles.

  1. "Government should be transparent."  The administration will "take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use."  The memorandum states that executive departments and agencies should use new technologies to make information available to the public online and should also ask for public feedback to target the information that is "of the greatest use to the public."
  2. "Government should be participatory."  Because "public engagement enhances the Government's effectiveness and improves the quality of its decisions," executive departments and agencies should offer (and ask for public feedback on how to offer) the public more opportunities to participate in policy decisions.
  3. "Government should be collaborative."  The memorandum states that collaboration engages the public in government.  To that end, executive departments and agencies should "use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.  Executive departments and agencies should also ask for public feedback on how to better collaborate and how to identify new opportunities for collaboration.

The transparency memorandum directs the Chief Technology Officer, along with the Director of the OMB, within 120 days to coordinate the development of an "Open Government Directive" that "instructs executive departments and agencies to take specific actions implementing the principles" laid out in the transparency memorandum.

The full text of the transparency memorandum is linked here.

It is important to recognize that the principles and guidelines set forth in the FOIA and transparency memoranda are not, in themselves, laws that create new rights of access.  Indeed, the memoranda are careful to point this out.  However, the memoranda set the tone for the executive branch at the outset of the new Obama Administration.  If followed, the memoranda suggest a pointed contrast to prior administrations.  For example, some have accused the Bush administration of secrecy and of frustrating FOIA by denying or dragging out requests.  Time will tell if FOIA access and openness will improve in the Obama Administration, but the memoranda appear to be a promising first step.  A number of prominent newspapers have penned editorials applauding the memoranda, including the New York Times, Los Angeles Times, Seattle Times, and Baltimore Sun.

The memoranda direct specific actions to be taken by certain executive branch officials (e.g., the Director of OMB, the Attorney General, and the Chief Technology Officer), so we should see new agency guidelines concerning FOIA and an Open Government Directive in the future.