Last week, the U.S. Supreme Court unanimously ruled that the state of Virginia can refuse to entertain Freedom of Information Act requests from persons residing outside of Virginia. A New York Times article is here. I heard about the decision just by chance from turning on NPR during On the Media this weekend. But I knew the case was coming, and had paid attention to the arguments when they were heard in February.
The reason is that, as part of my dissertation research, I’m studying local elections in Virginia, and have been requesting that county election offices provide me with election results dating back to the early 1990s. A few counties outright refused to help me, citing the state law that says they don’t have to. The majority just did not respond. The state election office even decided to get in touch with me, apparently after some localities contacted them about my request, reminding me that their offices are under no obligation to help me. (Naturally, I tried to tailor my requests to be as polite as possible, and made clear that I was willing to reimburse local offices for any fees associated with my request.)
Of course I knew about this clause of the state law going into my request — probably I learned about it from the Virginia Coalition for Open Government web site, which was involved with the case and was on the side of the plaintiffs who argued the residency restriction was unconstitutional. All is not lost for me, anyway — I have since been in contact with a researcher in Virginia and we’re planning on completing the requests soon.
I have two comments about the On the Media report about the decision. First, I found it really strange that Justice Alito, writing for the Court, seems to believe that “Requiring noncitizens to conduct a few minutes’ of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden.” Assuming this is not horribly taken out of context, it’s just wrong — if government information was readily available on the Internet, then no one would be doing FOIA requests in the first place. Indeed, in my experience, the results of FOIA requests are often paper records — if you’re lucky, the person processing the request will scan them for you. So they often aren’t even digitized, let alone on a web site.
My second comment relates to a point raised by Mark Caramanica of Reporters Committee for Freedom of the Press. He points out that these type of residency requirements threaten evaluations of government policy — how well are different states doing on certain benchmarks:
For example, USA Today did a story where they compared how the No Child Left Behind initiative was impacting teacher behavior in a variety of jurisdictions and pulled records dealing whether teachers were disciplined for potentially coaching students and, you know, trying to cut corners on the standardized tests, and so forth, to boost up their scores. That was a case where, you know, you need access to Virginia records, obviously, to put Virginia in the mix.
ProPublica did a story where they investigated dialysis centers all across the country, their effectiveness and safety records, and so forth. To get that national perspective, you need Virginia. And, you know, it leaves a hole in the entire story and the complete picture, but it also shortchanges citizens of Virginia because they don’t get the benefit of knowing where their state stacks up on certain issues.
(Of course, this type of cross-state comparison is more commonly done by social scientists, including political scientists who study states but also, maybe even more often, by economists. While a large number of press organizations, including the New York Times, filed an amicus brief on the side of the plaintiffs in this case, did any social science organizations? Apparently not. SCOTUSblog has all the amica briefs for the case, and I don’t see any.)
Maybe it’s not surprising that the most insular branch, not especially friendly to sharing information in its own domain, decided this way. On the other hand, a famous Justice once spoke eloquently of the potential of states as generators of good public policy. With this decision, the Court has made this potential just a little bit harder to realize.
I want to be careful not to exaggerate. For one, already, workarounds are apparently in the works. For another, VA is apparently one of 8 states with such a clause. But I’ve found some states don’t specify residency — as a researcher, I worry that the next time I make a request to a state with an ambiguous law, they might decide to refuse me on residency grounds.
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