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U.S. Supreme Court will decide if states can close their borders to flow of information

By Steven Brown,  executive director of the ACLU’s Rhode Island affiliate

PROVIDENCE, R.I. — By late June, we should know whether, in an age of the World Wide Web, states can constitutionally get away with closing their borders to the release of information.

More than a dozen organizations promoting open government filed a brief this month in the U.S. Supreme Court in a case that may decide, at some level, whether access to government information is a fundamental right.

Oral arguments are to be heard Feb. 20.

The dispute involves Virginia’s Freedom of Information Act which, along with those of at least two other states, guarantees access to public records to in-state residents only.

The lead appellant is Rhode Island resident Mark McBurney, a Pawtucket lawyer who was denied records from Virginia’s Division of Child Support Enforcement solely because of his out-of-state status. Last October, the Supreme Court agreed to review a federal appeals court ruling that Virginia’s discriminatory treatment of McBurney was constitutional.

The organizations signing on to the SCOTUS “friend of the court” brief include the ACLU, the American Library Association and the National Freedom of Information Coalition.

The brief notes that “state and local records bear on a variety of issues of national importance, including oversight of political leaders, campaign finance, crime, health trends, and education,” and that many of the brief’s signers have used state open records laws to that end.

The critical significance of access to state public records by non-resident journalists is self-apparent. But the brief points out that it is crucial to a wide range of other professions, including academics and researchers, historians, sociologists, and epidemiologists.

As the brief argues, Virginia’s law has “a concrete, detrimental impact on non-citizens’ fundamental rights, including the right to participate in political advocacy,” an impact “felt more acutely in today’s highly mobile society.”