ASNE joins amicus opposing restriction in Virginia FOI law

The clause in question prevents non-citizens from filing FOI requests. No matter how important the record or issue involved, out-of-state journalists cannot access Virginia records, even if they affect residents of other states. ASNE joined more than twenty media companies and organizations in challenging the unconstitutional restriction.

The world of First Amendment law isn't all glitz and glamour. There's hard, important work to be done at every level of government, from the White House to the local council, from state trial courts to the U.S. Supreme Court. So, while we were proud to report a recent string of victories in First Amendment and FOIA cases at the Supreme Court, we are equally pleased by the brief that was filed in the federal Court of Appeals for the Fourth Circuit earlier this week by ASNE and more than twenty media companies and organizations challenging an unconstitutional restriction in Virginia's FOI law. OK, admittedly, the Fourth Circuit is a pretty big deal in the legal world; but even if our brief was filed before the lowest-level state court in Virginia, we'd be touting this effort because it affects all reporters, nationwide.

At issue in McBurney v. Young is a provision in the Virginia Freedom of Information Act that limits requests to “citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth.” No matter how important the record or issue involved, out-of-state publications cannot access Virginia records, even if they affect residents of other states.

Our brief (PDF), written by the Reporters Committee for Freedom of the Press, notes that this restriction -- which exists in no more than three states after the U.S. Court of Appeals for the Third Circuit in 2004 struck down a similar clause in Delaware's FOI law -- damages the public interest. For instance, it interferes with comparative and “macro-analysis” reporting designed to uncover trends or make comparisons between states. It also hampers efforts by out-of-state journalists to report on major national events occurring in Virginia. Among the most prominent recent examples of important records that would be denied to non-citizens are those relating to:

  • Official actions taken in the wake of the 2007 shootings at Virginia Tech University and the earlier “DC Snipers” shooting rampage;
  • The background of former Virginia Governor Tim Kaine, who is now the Chair of the Democratic National Committee and rumored to be running for the U.S. Senate;
  • Oversight of the more than 20 Fortune 500 companies currently located in Virginia, including organizations like Freddie Mac, defense contractor General Dynamics, and tobacco and food manufacturer Altria Group.

Although this case focuses on a single provision of a state law, a positive result will benefit journalists throughout the country. Meanwhile, a negative result might embolden other states (and maybe even the federal government) to enact their own citizens-only FOI requirement as a means of reducing backlogs and cutting costs. We hope you agree this is a must-win.