Supreme Court Says Out Of State Residents Have No Constitutional Right To Virginia's FOIA Law

from the really-now? dept

A few months back, I mentioned that we had joined in an amicus brief in a challenge to Virginia's freedom of information act (FOIA) law, which limited the ability of non-Virginia residents to make use of the law. In particular, we were extra concerned about how the law seemed to treat different types of requests in different ways -- such as allowing out of state newspapers to file FOIA requests, but not allowing other publications like blogs to file. We ended up joining with a large number of publications and other interested parties in asking the Supreme Court to declare the limitations in Virginia's law unconstitutional.

On Monday, the Supreme Court went the other way, saying that the law and its restrictions are legal, and that the Constitution does not guarantee a right to FOIA requests. It also basically said that these restrictions weren't that big of a deal. That seems unfortunate, given how important transparency is to good governance, and how key FOIA requests have been in increasing transparency. Just because you don't live in a state, it doesn't mean that you can't help investigate and report on happenings in that state.

As someone who has filed regional and federal FOIA requests for quite some time now, such restrictions are somewhat worrisome. Of course, where the state of Virginia and the Supreme Court seek to hoard such information from out of state requests, others are already working on ways to tackle the problem. Muckrock, the platform for filing FOIA requests (who was a part of the coalition on the amicus brief) has already started building a list of volunteers in each state (especially in Virginia and the six other states with similar laws) to file requests locally in that state standing in for those out of state. They're looking for more volunteers, so if you're interested, click that link and sign up.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    horse with no name, Apr 30th, 2013 @ 2:51am

    bloggers versus journalists

    The Surpreme Court got it right. Another loss for Techdirt, I guess. You can go back to being 'just a blogger' instead of pretending to be a journalist from time to time.

     

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  2.  
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    gnudist, Apr 30th, 2013 @ 2:59am

    Re: bloggers versus journalists

    Mike never claimed to be a journalist jackass with no name.


    He does do a degree of journalism to back up his opinion(which any opinion writer worth reading does) but that's not the same thing as being a journalist.

    I've explained this many times but you refuse to understand it just so you can push your own agenda

     

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  3.  
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    gnudist, Apr 30th, 2013 @ 3:02am

    Re: Re: bloggers versus journalists

    If for some reason you honestly didn't read or remember the explaination: a journalist deals ONLY in the facts what keeping his own views out of it as much as possible while an opinion writer will use the facts to back up an arguement(as mike does)

     

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  4.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:03am

    Re: bloggers versus journalists

    Got it right??!?!?

    Re-read the article, in particular the bit at the end where Mike talks about how they're by-passing this ruling using a simple method (in-state volunteers). If it's that simple to get round and people feel the need to get round it. I'd suggest that the judge made the wrong call and is simply making more work for his local government ie wasting taxpayer money for no benefit.

     

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    Anonymous Coward, Apr 30th, 2013 @ 3:11am

    So Mike thought constitutional rights were being violated, and a UNANIMOUS Supreme Court thought not. Shocking.

     

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  6.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:19am

    The U.S. Supreme Court finally got something right. I hate to admit it, in this era where the news media has always used the "first amendment" as a battering ram rather than using it to get to the truth of a story.

    I don't know about you guys, but I wouldn't want someone who isn't a resident of my state, getting hold of any of my documents because I consider it an invasion of my privacy.

    I simply blame the media for abusing FOIA requests simply because they have this sense of "entitlement". While FOIA requests shouldn't be impeded where it concerns public officials, since they are elected into office, I think the media tends to abuse the FOIA simply because they feel it is their right.

    Personally, I think Congress and States need to put more limits regarding FOIA requests because it simply has become more of a problem then a solution.

     

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  7.  
    identicon
    Anonymous Coward, Apr 30th, 2013 @ 3:23am

    Re:

    I think constitutional rights is a bit far however the ruling is clearly wrong.

    The logic goes if you don't live in Virginia you can't possibly care about what goes on or be able to make a product based on that information. That is pants-on-head retarded.

     

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    Anonymous Coward, Apr 30th, 2013 @ 3:32am

    Re: Re: bloggers versus journalists

    yes, journalists are professional, have a code of conduct, and an ethical standard.

    Mike does not.

     

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    Anonymous Coward, Apr 30th, 2013 @ 3:37am

    Re:

    the two takeaway's from this are

    1) masnick is not a journalist
    2) masnick has no idea about the constitution or the law in general.

    2a) no one cares about Masnicks Amicus briefs, or if they even look at it will go the opposite to what he says.

     

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  10.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:37am

    Re:

    The point is they can if they have help from someone within the state.

    This doesn't make you any safer it just makes (a little) more work for those investigating stories. For a company of reasonable size opening a branch in a handful of states isn't going to be an issue.

    The only people who are really going to be hindered by this are blogs who don't have the support and contacts that techdirt does. I don't think they are a problem.

     

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    identicon
    Anonymous Coward, Apr 30th, 2013 @ 3:38am

    Re:

    funny right !!! Masnick being TOTALLY wrong once again, nice call 'the nick'.

     

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  12.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:38am

    Re: Re: Re: bloggers versus journalists

    How about you stop being a rabid ideologue and discuss the real mike and not the literally hitler you've cooked up in your head?

     

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  13.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:40am

    Re: Re:

    The logic goes if you don't live in Virginia you can't possibly care about what goes on or be able to make a product based on that information. That is pants-on-head retarded.

    You clearly did not read the opinion. That's not what the Court said.

     

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  14.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:41am

    Re:

    There is no such thing as a consensus on facts.

    Even though we have all those judges to ensure that constitutional violations do not slip by the courts it does not failure proof the process.

    It's always a possiblity that the court is wrong in the interpretation

     

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  15.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:43am

    Re: Re: Re:

    Paraphrasing but yes it is.

     

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  16.  
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    Anonymous, Apr 30th, 2013 @ 3:55am

    Re:

    But it would be okay if someone who IS a resident of your state gets hold of your documents? Wouldn't you consider that an invasion of your privacy too?

     

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  17.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:55am

    Re:

    I agree 100%.

     

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  18.  
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    Bengie, Apr 30th, 2013 @ 4:08am

    Re: Re: Re: bloggers versus journalists

    "journalists are professional, have a code of conduct, and an ethical standard."

    Quite the sense of humor you got there.

     

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  19.  
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    Ninja (profile), Apr 30th, 2013 @ 4:30am

    Muckrock, the platform for filing FOIA requests (who was a part of the coalition on the amicus brief) has already started building a list of volunteers in each state (especially in Virginia and the six other states with similar laws) to file requests locally in that state standing in for those out of state.

    The Net interprets censorship as damage and routes around it. John Gilmore

    So basically this Supreme Court decision achieves nothing really except making it a tad more annoying to file for State FOIA requests making it mandatory for people to organize in networks focused on scrutinizing the Govt.

    I say it's actually a huge win for awareness. And the trollie trolls that posted before me are left looking like clowns ;)

     

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  20.  
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    Ninja (profile), Apr 30th, 2013 @ 4:30am

    Re: Re: Re: bloggers versus journalists

    *looks at Fox News*

    Hmmm. No.

     

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  21.  
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    Ninja (profile), Apr 30th, 2013 @ 4:35am

    Re: Re:

    1) he never even pretended to be one. The fact that you confuse an opinion blog with journalistic nuances with some jornalistic outfit is hilarious.

    2) and he often admits he isn't sure about some law issues and takes his conclusions and form his opinions after consulting with some of his contacts that are into the subject. Your point?

    3) If no one cared you wouldn't be paid by those who feel annoyed by this blog to troll here (assuming you aren't doing it personally).

     

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  22.  
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    Ninja (profile), Apr 30th, 2013 @ 4:37am

    Re:

    Yes, because they hold the absolute truth and never make any mistake. Still, since there's a very easy way to route around it it seems useless. Are they gonna start persecuting those who file FOIA requests on behalf of people in other states?

     

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  23. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 30th, 2013 @ 4:39am

    Re: Re:

    He certainly not a scholar of the privileges and immunities clause and the dormant commerce clause. That doesn't stop him from stating opinions about it, of course, despite his self-professed evidence-based reality meme.

     

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  24.  
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    Anonymous Coward, Apr 30th, 2013 @ 4:44am

    Re: Re: Re: bloggers versus journalists

    Well, you'd think that, wouldn't you?

    But then there's been blatant corruption of that within the British media, and I have little reason to doubt that the rot goes much further (see, for example, Fox "News").

     

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  25. This comment has been flagged by the community. Click here to show it
     
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    horse with no name, Apr 30th, 2013 @ 4:48am

    Re: Re: bloggers versus journalists

    Their bypass method is unlikely to work in the long run, the state is likely to take action against people who attempt to deceive them.

     

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  26.  
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    horse with no name, Apr 30th, 2013 @ 4:52am

    Re:

    The state needs only to make a very slightly amendment and this little exception goes out the window as well. The court ruling making it clear that the state can limit the information to those in the state only. The Muckrock system is an attempt to bypass the law, and will likely fail. I could see people requesting information for out of state bloggers being hit with violating privacy and filing false FOIA requests.

     

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  27.  
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    JarHead (profile), Apr 30th, 2013 @ 5:00am

    Re: Re:

    What I don't get is why you guys keep attacking the writer rather than the writing. If you think you got it right then it should be a breeze to demolish the writings rather than going for the writer's throat. Doing that only shows that you're:

    1. Know that you're standing on a shaky ground but refuse to acknowledge it (the "la la la can't hear you" syndrome)
    2. Fear the writer for the message (s)he brings, cos you know his/her writings/message will obliterate your worldview (primal survival instinct)

    Given that, I'm so close to use the "T" word as comparison to you.

     

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  28.  
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    Anonymous Coward, Apr 30th, 2013 @ 5:03am

    Re: Re: Re: bloggers versus journalists

    Only if FOIA requests come with a gag order.

    If request the information I've got to be allowed to publish my analysis of it for which I'd need to show my data. You can hardly prevent people from writing quick reports to cover themselves whilst sharing.

    tl:dr you can't stop the signal.

     

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  29.  
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    Anonymous Coward, Apr 30th, 2013 @ 5:10am

    Funny how the information of little people is free, but the information of those in positions of power is not. Land of the fee, home of the knave.

     

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  30.  
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    Anonymous Coward, Apr 30th, 2013 @ 6:04am

    A minor victory for the Tenth Amendment.
    To bad the bastards pick and choose what to support regarding it.
    I see nothing bad about locals doing the bidding of out of staters, a few of the places. I have lived doing the bidding of out of staters would at best get you shunned. But I see no problem with it.

     

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  31.  
    identicon
    AC Unknown, Apr 30th, 2013 @ 6:49am

    Re: Re:

    Hey. Why do you just shut up and get off of Mike's blog? We know you hate it here and just come here to harass Mike.

     

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  32.  
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    Josh in CharlotteNC (profile), Apr 30th, 2013 @ 7:05am

    Re: Re:

    The Muckrock system is an attempt to bypass the law, and will likely fail.

    Of course its an attempt to bypass the stupid law. But how will it fail? Once the information is obtained from a FOIA by a resident of that state, they can publish or share it with others. Any attempt to stop the dissemination of information by that resident would quickly be struck down.

    being hit with violating privacy

    The government is not entitled to privacy.

     

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  33.  
    identicon
    Anonymous Coward, Apr 30th, 2013 @ 8:07am

    Bear in mind there is a federal FOIA law and state FOIA laws. This case involved the latter, and was decided by a unanimous court.

     

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  34.  
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    Gwiz (profile), Apr 30th, 2013 @ 8:23am

    Re: Re: bloggers versus journalists

    He does do a degree of journalism to back up his opinion(which any opinion writer worth reading does) but that's not the same thing as being a journalist.


    Right. And that in and of itself makes me give more weight to what I read at Techdirt over MSM.

    MSM gives me selected "facts" (usually only from one side of an issue) and expects me to believe it's the whole truth.

    With Techdirt I get an opinion, backed up with facts to explain how the opinion was reached without trying to hide the fact that there is always another side to every issue.

    Personally, I prefer to be treated as someone who can make up their own mind, instead of a mindless dolt that needs to be told how to think by MSM.

     

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  35.  
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    Gwiz (profile), Apr 30th, 2013 @ 8:26am

    Re: Re: Re: bloggers versus journalists

    ...the state is likely to take action against people who attempt to deceive them.


    How would anyone be deceived? If the volunteer lives in the state, how is that deceitful in any way, shape or form?

     

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  36.  
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    Anonymous Coward, Apr 30th, 2013 @ 8:38am

    Re: Re: Re: bloggers versus journalists

    "yes, journalists are professional, have a code of conduct, and an ethical standard.
    Mike does not."

    And you do, girl?

     

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  37.  
    identicon
    Anonymous Coward, Apr 30th, 2013 @ 8:40am

    Re: Re: Re:

    "That doesn't stop him from stating opinions about it, of course, despite his self-professed evidence-based reality meme."

    Doesn't seem to stop you, girl.

     

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  38.  
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    RonKaminsky (profile), Apr 30th, 2013 @ 9:28am

    These kinds of judgments seem to be the new rage

    > If it's that simple to get round

    This judgment reminds me of this other recent one. Both of them are trivial to tracelessly workaround.

    In the first-sale rights ruling, the judge ruled that it's perfectly OK to sell your digital download along with the storage media to which you originally saved. Unfortunately, it is trivial, when you decide to resell your content, to copy the file or files you want to sell to any sufficiently old flash drive or card, in such a way that the resulting media is indistinguishable from the result of having downloaded those files directly to the media.

    Hey, suddenly all those old, relatively-tiny-capacity flash drives will become useful again!

     

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  39.  
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    Ninja (profile), Apr 30th, 2013 @ 9:40am

    Re: Re:

    I'd love to see such Amendments put in place. I'm interested in how they are planning to prevent people from sharing any FOIA request granted with, I don't know, THE ENTIRE FREAKING INTERNET. Murckrock? No need. Just embed the document in a blog post discussing and giving opinions about it and voilá, it's shared. Or are you honestly telling me that this will be some sort of violation against some dictatorial law?

    And seriously, there's no false FOIA request. There's just FOIA requests. If I submitted one then I want some info. It's not up to ANYBODY arbitrarily evaluate if it's "false". That's a quite sick concept you have there.

     

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  40.  
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    chris, Apr 30th, 2013 @ 1:22pm

    fyi...

    Virginia is a commonwealth and tends to make up their own law in a different way than a typical 'state'. Seems they make up a lot of rules as they go and as they see fit. It's a pain sometimes.

     

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  41.  
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    random virginian, Apr 30th, 2013 @ 3:20pm

    You all might want to read the story in todays richmond paper. It seems a real journalist (or two) covered the story. Some marketing creep wanted the county of henrico to mail him stuff so he could spam homeowners, and the county said "no". I could get the same info by wandering by the county courthouse and simply paying the copy charges or taking notes. Please feel free to email me and explain why I should pay higher taxes to help out of state (and out of country) spammers.

    It was a good decision by the court. Mike should stick to writing fiction.

     

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  42.  
    identicon
    random virginian, Apr 30th, 2013 @ 3:23pm

    You all might want to read the story in todays richmond paper. It seems a real journalist (or two) covered the story. Some marketing creep wanted the county of henrico to mail him stuff so he could spam homeowners, and the county said "no". I could get the same info by wandering by the county courthouse and simply paying the copy charges or taking notes. Please feel free to email me and explain why I should pay higher taxes to help out of state (and out of country) spammers.

    It was a good decision by the court. Mike should stick to writing fiction.

     

    reply to this | link to this | view in thread ]

  43.  
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    Kenito Blakewood, Apr 30th, 2013 @ 4:15pm

    Here's another idea: Gather the names of everyone involved with making this law, every Virginia state congressperson who wrote the law, and gather FOIA dirt on them. Do everything *legally possible* to make their lives miserable. Even better: Put pressure on the Virginia congress until it passes a law nullifying this one. Shame them, shame them ALL.

     

    reply to this | link to this | view in thread ]

  44.  
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    btr1701 (profile), Apr 30th, 2013 @ 4:18pm

    Re: Re: Re: bloggers versus journalists

    > Their bypass method is unlikely to work in
    > the long run, the state is likely to take
    > action against people who attempt to deceive them.

    How is it an attempt to deceive? They're declaring themselves in-state residents (true) and they're making a legitimate request (true).

    What 'action' can the state take against anyone who shares information gleaned from a FOIA response? That's the whole *purpose* of the FOIA law in the first place-- for citizens to be able to access their government's documents and share that information.

    And while the Supreme Court may have upheld restrictions on who may *file* a state FOIA request, any attempt to procecute someone for sharing that information with an out of state resident or simply putting it on the internet would be bright-line violation of the 1st Amendment.

     

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  45.  
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    btr1701 (profile), Apr 30th, 2013 @ 4:22pm

    Re: Re:

    > For a company of reasonable size opening a branch
    > in a handful of states isn't going to be an issue.

    They don't even have to open a branch. All they have to do is find an employee or someone they know who has friends or relatives in that state and have them file the request. Give them a Best Buy gift certificate for their time or something.

     

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  46.  
    identicon
    Umre, May 17th, 2013 @ 5:37pm

    FOIA’s

    The Virginia FOIA’s citizen/noncitizen distinction has a non-protectionist aim. Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Any effect the Act has of preventing citizens of other States from making a profit by trading on information contained in state records is incidental.

     

    reply to this | link to this | view in thread ]


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