The Supreme Court heard a case this week, McBurney v. Young, that deals with the question of whether a state can restrict access to open records or freedom of information requests to citizens of that state. Unfortunately, I don’t think the plaintiff in this case is the right one to make the argument that they can’t. As Lyle Denniston points out, the plaintiff is the owner of a commercial information broker and his argument seems pretty weak.
Gupta’s two clients, non-Virginians, were denied access to records held by Virginia state agencies, because of the residents-only limitation that regulates access to many (though not all) records of those agencies. That, their attorney contended, violated their rights under the Constitution’s “privileges and immunities” clause and the Commerce Clause.
Scalia made it clear, from the very outset, that he was having none of either argument, because he had apparently bought the state’s argument that it had opened up its records only in a civic gesture to help Virginians monitor how their government was working. Scalia said he was around when the modern freedom-of-information movement began, and he was sure it was limited to putting government on display to its own constituency.In fact, Scalia went so far to suggest that Virginia was entitled to keep “outlanders” from “mucking around” in that state’s government. So, it was easy to put Scalia’s points aside. Even doing that, however, was no great help to Gupta, since Justices of all philosophical bents seemed to belittle the significance of his constitutional claims. It was suggested that he was not arguing in favor of any “fundamental” right protected by the privileges clause, and that Virginia had not really put a burden of any consequence on out-of-state data-gatherers, so that there was no Commerce Clause violation.
I think there’s a much stronger argument to be made by a news organization from out of state that is gathering information for a story. That allows the use of the First Amendment guarantee of a free press, coupled with the 14th Amendment equal protection clause.