Under the Commonwealth of Virginia's freedom of information law, only Virginia residents and journalists for certain media entities can request public records from the state:
Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied 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.
The United States Court of Appeals for the Fourth Circuit
found this discrimination against out-of-state residents to be constitutional; the Third Circuit
found a similar Delaware law unconstitutional in 2006, relying upon the the Privileges and Immunities Clause of the United States Constitution. (Art IV, sec 2: "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.")
The unsuccessful Virginia litigants petitioned the Supreme Court to review this matter and resolve the circuit conflict. DailyKos joined with the American Society of News Editors and a number of online media sites such as Ars Technica, Grist, Techdirt and Tumblr in filing an amicus brief encouraging the Court to hear this case, and lead attorney Marvin Ammori and his team did a great job explaining our concerns:
Journalists often rely on multiple state FOIA requests to break national investigative stories, to ensure the factual accuracy of national reporting, and to provide deeper analysis of national data trends for readers across the country. Yet up to eight state FOIA statutes have “citizens-only provisions” that limit access only to the state’s own residents. Whether these citizens-only provisions are constitutional is an important question only this Court can resolve.
...Only Virginia’s citizens-only provision offers an exemption for some media organizations. But the partial exemption merely increases the confusion faced by other journalists--including those who do not represent traditional newspapers, print magazines, or FCC licensed broadcast stations. Therefore, Virginia’s exemption increases the risk of discrimination against the many journalists not covered by it.
Because this legal uncertainty hangs over journalists seeking records in many different states, it will continue to burden investigative reporting until this Court resolves it. The Court should take this opportunity to clarify the state of the law and find citizens-only provisions unconstitutional.
Last Friday, the Court agreed to hear this case on the merits, which will be briefed over the next few months, followed by oral argument and a ruling sometime before the end of this Term. We'll keep you posted.
Case materials are here.