Journalists’ Brief re State Government Records in Supreme Court

This week, Luke and I filed an amicus brief with the U.S. Supreme Court on behalf of several clients that have an interest in investigative reporting, citizen journalism, and shining a light on government actions. These clients are the American Society of News Editors, the Center for Investigative ReportingArs TechnicaDaily KosTechdirtGristAutomattic (the company behind WordPress.com), Tumblr, Matthew Lee of Inner City Press, and MuckRock.

You can read the amicus brief here.

We filed this brief in a case concerning state freedom of information (FOI) laws that discriminate against the citizens of other states.

Most of our readers are probably familiar with the federal equivalent of these state laws: the Freedom of Information Act, known more popularly as the FOIA, gives us the right to request and receive federal government records. These “records” range from emails to memos to calendar schedules for federal officials. Each state has passed FOI laws at the state level providing similar rights to access state government records. 

Government records often underlie good investigative journalism. Journalists may file requests, analyze (state and federal) records, track down sources, and write up breaking stories for their readers. Because of journalists using state FOI laws, the rest of us better understand why state governments take certain actions and their spending taxpayer money. Consider a few exaxmples. Ars Technica recently published a series of articles on the use of license plate readers by state and local law enforcement—and how that use impacts our privacy. The series makes use of information in government records—obtained from state and local law enforcement agencies all over the country. Another organization, Dronewatch, filed state FOI requests to learn about law enforcement use of unmanned aerial vehicles—known as “drones.”

But a handful of states deny out-of-state residents the same access to records that is enjoyed by their own in-state citizens. Take Virginia. It will provide records to its own citizens, but will not process the requests of non-citizens.  If you’re not from Virginia, and you file a request for information about the purchase of drone technology, Virginia might not furnish the information, even though it would provide that information to in-state residents. These restrictions of non-citizens harm the ability of investigative reporters and citizen journalists—as well as their readers—to understand their governments’ actions.

The parties to the brief all have an interest in having the Supreme Court review these state FOI laws and declare unconstitutional their discrimination against out-of-states.

The American Society of News Editors (ASNE) consists of deans of journalism schools and heads of news organizations. ASNE has an interest in ensuring that journalists in any state can access records in other states.

Popular online news organizations like Ars Technica, Techdirt, Grist, and the Center of Investigative Reporting (whose projects include the Bay Citizen) investigate national stories for national audiences. But for practical reasons, they don’t have employees in every state to satisfy the residency requirements in the half-dozen states that discriminate against out-of-staters.

Moreover, today, you don’t need to work for the local newspaper—or Ars Technica—to be an investigative reporter. You might have a WordPress.com blog or a Tumblr account. You might also have an account on Daily Kos and post stories there. Only Virginia’s law even has an exception for out-of-state media organizations—but that exception is unclear, and doesn’t seem to cover online reporters and citizen journalists with a WordPress.com blog or Tumblr account.

If you don’t have the time, know-how, or resources to file requests for state records, you can turn to the online tool MuckRock for assistance.

While this case arises out of the Virginia law, the impact of this case extends to several other state laws and would benefit both traditional and online journalists.

 

We filed this brief at the “cert” stage: we are asking the Supreme Court to take the case, called McBurney v Young. The Fourth Circuit, the appellate court that covers Virginia, upheld the Virginia restriction. We believe that decision was wrong and are asking the Supreme Court to take the case to consider reversing the lower court’s decision. The main parties to the case have Deepak Gupta as counsel. There were two other amici briefs filed on our side, one by the transparency community (including the Sunlight Foundation) and one by the Big Data industry.

We are all asking the Court to take the case not only because of the impact on journalism (and data innovation and open government), but also because of confusion about the current state of the law. Generally, the Supreme Court is more likely to take a case when there is a “circuit split,” meaning disagreement among different circuit courts. The Fourth Circuit court, in upholding the Virginia restriction, disagreed with another court, the Third Circuit in Philadelphia. The Third Circuit had struck down a very similar provision in Delaware’s FOI law in a case called Lee v. Minner. We want the Supreme Court to eventually agree with the Third Circuit case. The Lee in Lee v. Minner is Matthew Lee, another of the parties to our amicus brief and the editor of Inner City Press.

The organizations behind this brief recognize the crucial role for access to government records in a democratic nation with a free and independent press. We believe that reversing this case will benefit journalists and all citizens. We hope the Supreme Court agrees to take the case.

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