CMD Joins Amicus Brief Asking U.S. Supreme Court to Allow All Americans to Access Public Records

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The Center for Media and Democracy (CMD) has joined an amicus brief filed with the U.S. Supreme Court supporting the right of all Americans to access public records, regardless of which state they call home.

Plaintiffs in the case, McBurney v. Young, are challenging a Virginia law prohibiting non-residents of that state from invoking Virginia's Freedom of Information Act. They allege that state law violates the U.S. Constitution's Privileges and Immunities Clause, which prevents a state from treating residents of other states in a discriminatory manner, and the Commerce Clause, which restricts states from impeding interstate commerce.

CMD and several other public interest groups are asking the court to find in favor of the McBurney plaintiffs.

The ACLU spearheaded the brief with the pro bono help of Samir Jain of the law firm WilmerHale. Other organizations joining the ACLU and CMD on the brief are the American Library Association, Citizens for Responsibility and Ethics in Washington, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the National Freedom of Information Coalition,, the Project on Government Accountability, the Sunlight Foundation, and the Washington Coalition for Open Government, Virginia Coalition for Open Government, and Tennessee Coalition for Open Government.

In the course of its investigative work CMD has demonstrated that what happens in one state's government often matters to Americans across the country. CMD has filed open records requests in multiple states, and it is largely through these requests that CMD has identified how the American Legislative Exchange Council (ALEC) facilitates corporate efforts to change the law in multiple states (despite publicly denying it lobbies), and by acting as a conduit for corporate-funded gifts that fund legislators' travel to these meetings. These gifts may violate some state ethics laws.

For example, CMD contributing reporter Beau Hodai filed open records requests in Ohio (where he is not a resident), which revealed how legislators were not only receiving free meals, trips, and other benefits from ALEC's member corporations, but that state employees arranged those perks while being paid by taxpayers. The evidence uncovered through those open records requests served as the basis for a complaint filed with the Internal Revenue Service by a former IRS official, Marcus Owens, alleging that ALEC has violated its nonprofit status by serving primarily to benefit its corporate and legislative members rather than the public interest. A request made to Florida legislators released information about legislators in multiple states receiving corporate-funded gifts, which helped inform the CMD/DBA Press/Common Cause report Buying Influence, authored by CMD's Executive Director Lisa Graves. The information released through these requests are of national importance, but would have never come to light if Ohio and Florida had an open records law like Virginia's.

The McBurney case arose after two non-Virginia residents were denied access to public records in that state. The first, a former Virginian who moved to Rhode Island, was seeking records about delinquent child support payments he was due, and the second, a California businessman, was seeking records for his data brokerage firm. The parties filed suit after their records requests were denied, but the Fourth Circuit held in 2010 that Virginia's residency requirement did not violate the Constitution. That ruling was in conflict with an opinion arising from similar facts by the Third Circuit, which in 2006 voided a Delaware statute that barred non-Delaware residents from filing public record requests on grounds it limited the rights of non-residents to "engage in the political process with regard to matters of national political and economic importance."

The Supreme Court will likely resolve the split between these two federal court decisions.

"CMD, as a national investigative reporting and watchdog group located in Madison, Wisconsin, believes that it is important for all people to have complete access to the public's information about the functioning of government, regardless of state residency," said Lisa Graves, CMD's Executive Director. "Americans do indeed have a right to access information in a state about matters of both national and local importance."

In addition to Virginia and Delaware, states that prohibit or have prohibited non-residents from accessing certain public records include Arkansas, Georgia, New Jersey, New Hampshire, Pennsylvania and Tennessee.

Oral argument in the case is scheduled for February 20, 2013.


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Federalism on trial

I hope the court decides non-residents do not have rights to information in a state they don't live in. We need to preserve the concept of the United "States" as well as the "United States."