Commentary: FOIA won't go out of style

The U.S. Supreme Court on April 29 upheld a Virginia law that says that a state does not have to respond to Freedom of Information requests from someone who lives out of state. The Old Dominion is one of eight states in America to have a residents-only FOI law (The others are Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee). Michigan does not have such a restriction ... yet. The high court's reasoning in McBurney v. Young apparently hinged on economics. Virginia can draw a distinction between residents and nonresidents because the people in Virginia are the ones who pay the fixed costs required for agency recordkeeping. A nonresident does not foot that bill, so the law is a valid exercise of state power. You can bet a big wad of cash that some wise guy or gal in the Legislature will get the bright idea that Michigan should adopt a similar law as a means to save money. And you can bet further that this individual probably won't have the research or the numbers to back the proposal when that bill is filed: Out-of-state FOIA requests likely do not take up huge amounts of resources at Michigan's agencies. There is general undercurrent of disdain for the Freedom of Information Act in the high court's opinion, written by Justice Samuel A. Alito Jr. The FOIA and other good-government laws were passed to provide transparency for the public and to keep government accountable. They were designed to provide a relatively easy process for citizens to learn what their government is up to without having to slog through a byzantine system. Alito misses the point. In the McBurney opinion, he reduces the function of FOIA laws to providing a "service." Writing for a unanimous court, he said, "Virginia's FOIA law neither 'regulates' nor 'burdens' interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all." Really? A nonresident of Virginia may have a valid reason for seeking governmental information. The plaintiffs in McBurney were a guy in Rhode Island seeking state child support info and a man in California looking for data on property assessments in Henrico County. These requests are typical of the FOIA inquiries sought by out-of-staters. Megan Rhyne, executive director at the Virginia Coalition for Open Government, the state's FOIA watchdog group, reported that she had dealt with the following actual requests: A woman in Indiana trying to get nursing home data for placement of her elderly mother. A grad student in Alabama seeking election data for a school project. A man in Bristol, Tenn., worried about the condition of a bridge across the border in Bristol, Va., seeking inspection data. Here's the thing about the Virginia FOIA statute that spurns out-of-state requests. It's awfully easy to circumvent. All a nonresident has to do is to ask someone within Virginia to make the FOIA request. You might even see some entrepreneurial type start offering to handle that service for a fee. (FOIA 'R' US, anyone?) Or you may see informal arrangements between businesses or companies to make FOIA requests, similar to the way that a law firm near a state border will work with another firm on the other side of the state line. All it takes is a resident's signature, and the lawsuit--or FOIA request--is ready for filing, all nice and legal. So if anyone in Legislature still thinks a nonresident FOIA is a good idea, think twice. The Supreme Court has allowed a law that sets up an easily avoided hoop that renders the law pretty meaningless. And does Michigan really need a meaningless law on the books? Rhyne said that the lawyer representing Virginia, when making his argument to the Supreme Court in the McBurney case, referred to FOIA laws as a "fad" of the 1960s. A fad? No, that's wrong. A fad is something that goes out of style. Published: Thu, May 16, 2013

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