By Rebecca Glenberg, Legal Director

This Wednesday, the Supreme Court will hear arguments in McBurney v. Young, a case that addresses an important question about the transparency of Virginia’s state and local government:  Can Virginia restrict access to its public records to Virginia citizens?  Or must it make those records available to everyone?
Like every other state, Virginia has an open records law.  Subject to a variety of exceptions, the Virginia Freedom of Information Act (FOIA) requires every public body to provide copies of public records to any citizen of Virginia who requests it, regardless of the identity of the requester or the reason for the request.  For anyone who wants to identify possible wrongdoing by government officials, find out about the government policies that affect their lives, or simply learn more about how the government works, FOIA is an essential tool.
Unlike most other states, Virginia only allows Virginia citizens (and media with a Virginia audience) to obtain public records.  But the actions of Virginia government officials affect non-Virginia residents too, and they have a right to know how and why Virginia government is affecting their lives.
For example, in this week’s Supreme Court case, one of the plaintiffs, Rhode Island resident Mark McBurney, used to live in Virginia, and his divorce, child custody, and child support decrees were adjudicated here.  When his former wife defaulted on her child support obligations, he petitioned the Virginia Division of Child Support Enforcement (DCSE) to enforce the child support order.  To find out why DCSE was taking so long to process his case, he requested that the agency provide all policies and records pertaining to his case.  DCSE refused to provide them because McBurney did not live in Virginia.  It is simply outrageous that McBurney was unable to see public records that directly pertained to his own situation.
Many other non-Virginia residents have good reasons for seeking Virginia public records. Genealogists use birth and death records to trace family lineages.  Epidemiologists use those same records to track communicable diseases.  Land developers need access to documents such as title records, zoning plans, crime statistics, and school-performance data when selecting the best sites for their projects – as do individuals hoping to move to Virginia.
Some Virginia officials claim that it would be too costly to provide public records to out-of-state residents.  But FOIA allows agencies to charge the requester for any costs associated with the request – not only the cost of copying and mailing, but the cost of staff time to locate and copy the records.  There is no reason to believe that state and local agencies would be unable to recoup any extra costs through these charges.  Indeed, the vast majority of states that allow out-of-state residents to request public records have not suffered any apparent financial hardship.
In the case to be heard Wednesday, the Supreme Court will decide whether the Virginia FOIA’s “citizen’s only” provision is constitutional.  But regardless of how the Court rules, the General Assembly should amend FOIA to ensure that Virginia public records are open to everyone.  In addition to making sure that out-of-state residents are able to receive public records, the legislature should make two other changes:
First, instead of allowing only “citizens” to request records, Virginia should follow the lead of most states and make records available to “any person.”  The family seeking asylum, the young man in the country on a student visa, or the mother supporting her children on a green card are all affected by Virginia government just like the rest of us, and have the same right to find out what the government is up to.
Second, the General Assembly should eliminate the FOIA provision denying prisoners the right to request public records.  Every aspect of an inmate’s life – his meals, his medical care, his religious practice, his reading material -- is governed by prison or jail policies.  Yet prison and jail officials are free to refuse inmates the right to see those policies.
If we want a truly open society in which individuals know what their government is doing and can make intelligent decisions about it, we need to make government records available to everyone.