Does FOIA Apply to Out-of-Towners?

Should states be responsive to FOIA requests from nonresidents, or should transparency advocates be kept in their own backyards?

The Supreme Court is evaluating whether Virginia should be forced to turn over state documents requested by men from Rhode Island and California. The Associated Press reports that the justices seem far from a consensus:

Justices Anthony Kennedy and Sonia Sotomayor both called Virginia’s actions discriminatory during the arguments.

The 4th U.S. Circuit Court of Appeals in Richmond threw this case out, but the 3rd Circuit Court of Appeals in Philadelphia struck down a similar citizens-only FOIA act in Delaware. Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey also have some form of law limiting access to public records for noncitizens, according to court briefs.

Chief Justice John Roberts noted that it wouldn’t cost Virginia that much money to allow out-of-staters to get documents instead of blocking them, saying “It doesn’t seem like that big a deal.”

But Justice Elena Kagan noted that the original purpose of the laws has been overtaken by e-commerce. “It does affect out-of-state data collectors,” she said.

Getchell said it was an added burden for Virginia to service out-of-staters. “We want to have a very simple system that allows our citizens to make inquiries without a demonstrated need or cause, because we want there to be sunshine,” he said.

Roberts shot back: “It’s going to be the same system whether you win or lose. “

A ruling is expected by the end of the summer.