There’s a court case being heard Tuesday in the 4th U.S. Circuit Court of Appeals in Richmond.
Anyone who’s followed the Virginia Coalition for Open Government over the years has heard me talk about McBurney v. Young: the case challenging Virginia law that says Virginia FOIA is for Virginians. It’s not for Tennesseeans or North Carolinians, or, mon dieu, for Californians.
Virginia is one of only 4 or 5 states that has such a limitation. Delaware used to have such a provision, but the 3rd U.S. Circuit wisely called the provision unconstitutional in 2006.
And anyone who’s followed VCOG has heard me make the same arguments of why I hope the 4th Circuit reverses the lower court in the case and strikes the provision.
My belief is that a person’s interest in a state or local government does not cease just because he or she no longer lives within its borders.
• Mr. Smith lived in Williamsburg working for Anheuser-Busch until he was transferred to St. Louis. Because of the down market, he couldn’t sell his house, and now he’s heard the city is considering rezoning the area near his house to light commercial use.
• Mr. Jones lives in Bristol, Tenn., but works in Bristol, Va. He is concerned about the safety of the bridge he has to travel over on the Virginia side.
• Mrs. Danforth’s mother retired to Irvington. Her mother’s health is in decline, and she’ll need to go into assisted living soon. Mrs. Danforth needs information about the inspection records of facilities in the area.
• Miss Rivers grew up in Arlington, then enlisted in the Marines. She’s stationed at Camp Lejeune but intends to return to Virginia to start a business providing computer technology support for local governments. In preparation, she would like information about existing contracts for service.
Well, you get the picture. All of these individuals would have a keen interest in state and local government records in Virginia, but all could be denied those records in a FOIA request because they live out of state.
The last hypothetical above isn’t too far from a real case I heard about recently. About a month ago, someone from a Northern Virginia authority wrote to ask me about this Virginia-only limitation. He said he was asked for records from a New Jersey company that had lost out on an RFP sent out by the authority. The New Jersey company wanted to see the winning bid.
According to the writer, the government attorney advised him he could wtihhold records because the requester didn’t live in Virginia. The writer said that just didn’t seem right to me.
(Note, I love hearing things like this from government employees!)
We talked about how the New Jersey company could always ask someone in Virginia -- family, friend, colleague, attorney -- to ask for the records (which actually shows how ineffective the limitation is). And we talked about what the locality had to gain by NOT giving over the records.
The writer eventually decided to “play nice” with the requester. “We didn’t want to get into a battle with a bidder who may be awarded a contract in the future,” he said.
Exactly! The bidder could use the information in the winning bid to help prepare a bid that offered a lower price, better terms, better support, or what have you. That would be GOOD for the government, for the taxpayers.
Virginia doesn’t need to be so protective of her records, and I hope to be there Tuesday, sending good open-records vibes to the justices hearing the case.
Cross your fingers, will you?