News editors, blogs ask Supreme Court to rule on state FOIA laws

Note: This story first appeared in the Oct. 5, 2012 print issue of the Westlaw Journal Computer & Internet.  That same day, the U.S. Supreme Court decided to hear the case.  McBurney v. Young, No. 12-17, 2012 WL 2804998 (U.S. Oct. 5, 2012).

Several organizations representing newspapers and Internet news platforms have asked the U.S. Supreme Court to resolve discrepancies between states’ freedom-of-information laws so that out-of-state news organizations can access state-controlled public information.

The Supreme Court should grant the writ of certiorari petition that Mark J. McBurney and Roger W. Hurlbert filed after a federal appeals court ruled that Virginia may grant access to its public records to state citizens only and may deny access to out-of-state applicants, such as journalists and bloggers, the amicus brief says.

In February the 4th U.S. Circuit Court of Appeals said the “citizens only” provision of the Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3704(A), did not violate the U.S. Constitution’s “privilege and immunities” or “dormant commerce” clauses.

McBurney and Hurlbert appealed to the Supreme Court to reverse that decision, and the news advocacy groups, blogging platforms and websites agree.

The amicus curiae brief was filed by the American Society of News Editors, technology news website Ars Technica, left-leaning political blog Daily Kos, and blogging platforms Tumblr and WordPress.

(Click here to read the amicus brief on Westlaw.)

“Journalists rely on state FOIA requests to break news stories of national significance,” the brief explains.  “Yet journalists continue to face substantial legal uncertainty regarding citizens-only provisions in several state FOIA statutes.”

This is true even when the state FOIA request seeks to obtain information to report on interstate issues or news stories of national concern, the brief says.

Adam Bonin, counsel for Daily Kos, commented on the filing.

“Daily Kos is a platform which allows anyone to be a journalist, and our staff members and readers are moved to take action on issues in all 50 states.  In this digital age, when so many state-level decisions have national impact, there is no constitutionally valid reason to place boundaries on our right to review public records,” he said.

Paul Sieminski, in-house counsel for Automattic, which operates WordPress, expressed the same sentiments.

“Virginia’s law and others like it hinder the ability of these journalists to make freedom-of-information requests that help supply the public with newsworthy information,” Sieminski said.

As examples of these types of issues, the brief mentions the importance of accessing the Arkansas records of former governors Bill Clinton and Mike Huckabee when each ran for president.

Arkansas and six other states (Alabama, Missouri, New Hampshire, New Jersey, Tennessee and Virginia) currently have citizens-only provisions in their laws.

The brief also mentions the difficulty in reporting on newsworthy public information such as the domestic use of surveillance drones and state and local law enforcement adoption of license plate readers — technology supported and largely funded by federal grants.

The discrepancy between the recent 4th Circuit decision and Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), which invalidated the citizens-only provision in Delaware’s Freedom of Information Act, Del. Code Ann. tit. 29, § 10003, only furthers the confusion, cost and legal uncertainty, the brief says.

Most importantly, the amici argue, the laws provide certain exemptions that rely on archaic notions of the news media and invite discrimination because they have “no clear logical boundaries.”

The Virginia statute, for example, provides an exemption for “representatives of newspapers and magazines with circulation in the commonwealth, and representatives of radio and television stations broadcasting in or into the commonwealth.”

According to the brief, an official “would have to determine whether Daily Kos, Grist, Ars Technica, or Techdirt qualify as ‘newspapers’ or ‘magazines’ under the statute.”

Therefore, these groups want the U.S. Supreme Court to consider the role of FOIA requests for investigative reporting in tandem with the ever-changing media landscape to decide whether citizens-only provisions, which impose undue burdens on the press, still have a place.

“Americans increasingly get their news from online citizen journalists — many of whom publish important news via WordPress,” Sieminski said.  “Hopefully, this case will help online journalists keep the public informed and fulfill the media’s role as a check on state and local governments.”

McBurney et al. v. Young et al., No. 12-17, amicus brief filed (U.S. Aug. 28, 2012).