Justice Antonin Scalia, himself a Virginia resident, said maybe Virginia "didn't want outlanders mucking around in Virginia government. Why isn't that reasonable?" / Jessica Hill, AP
WASHINGTON - The Supreme Court's justices suggested Wednesday that state laws limiting access to government records to their own state residents might be pointless, but the justices seemed not to be persuaded that the laws are also unconstitutional.
Lawyers for two men who had sought government records from Virginia â?? joined by a broad group of media organizations and professional data miners â?? asked the court Wednesday to invalidate those restrictions, arguing that they discriminated against out-of-state residents in ways that violated two separate constitutional limits.
Nearly all of the justices appeared skeptical of that position. During an hour of oral arguments, they peppered the lawyer for the two men challenging the law with questions about what states could reserve for their own residents. Deer hunting? Voting?
"Virginia doesn't allow people from out of state to vote. They're not part of Virginia's political community," Justice Ruth Bader Ginsberg said.
Virginia - like every other state and the federal government - has a law that gives people the right to inspect some government records through the Freedom of Information Act (FOIA). Those laws are widely used by journalists, researchers and a growing industry that mines data from government records that are then used to do everything from selling real estate to setting credit scores. At least seven states restrict that right to residents of the state.
But the justices wondered Wednesday why they go to the trouble.
"I understand your argument. I'm just asking you, why bother?" Chief Justice John Roberts asked Virginia's lawyer, Earle Getchell. He said out-of-state residents could â?? and do â?? hire people who live in Virginia to collect the records for them.
Getchell responded that Virginia's law was designed only to allow the state's residents to examine the workings of their government.
"You don't have, let's say, the most fabulous reason for doing this, but you do have a reason," Justice Stephen Breyer told Getchell.
The lawyer for the men challenging the law, Deepak Gupta, told the justices that "in the modern economy," information is as much a part of the nation's infrastructure as transportation networks, an area where the court has long said states can't discriminate. He said Virginia didn't have a solid basis for excluding non-residents.
Justice Antonin Scalia, himself a Virginia resident, said maybe Virginia "didn't want outlanders mucking around in Virginia government. Why isn't that reasonable?" He said it is hard to imagine that state laws written 50 years ago to ensure "government in the sunshine" gave anyone the kind of fundamental right that the challengers would have to prove was violated in this case.
Part of the disagreement is practical: People who want the records, including the news media, say that in addition to being economically valuable, they could shed light on important national issues. Virginia and other states say they simply can't afford it.
The outcome could have implications for the news media, local governments, and a growing industry that makes its living by gathering up public records on everything from crimes to property transactions. Still, Wednesday's arguments on McBurney v. Young turned less on those practicalities than on questions about whether people have a fundamental right to access government information that Virginia and other states limit to their own residents.
Depending on the outcome, the case could also have implications for a host of other state laws that treat residents differently from non-residents.
The challenge to Virginia's law began when Mark McBurney, a Rhode Island resident who used to live in Virginia, asked state officials for copies of records he hoped would shed light on why they hadn't enforced an order requiring his wife to pay child support. Officials rejected his request because he had moved to Rhode Island. So McBurney and another man, Roger Hurlbert of California, sued, arguing that the residents-only limit violated the Constitution's Privileges and Immunities clause, and amounted to an improper restriction on interstate commerce.
Two lower federal courts sided with Virginia.
Virginia officials have argued in court filings that access to public records isn't the kind of "fundamental right" that the Constitution sought to protect, and that the state has a "substantial interest" in limiting governmental services to the residents who pay for them.
Gannett Co., USA TODAY's parent company, joined an amicus brief asking the Supreme Court to invalidate Virginia's residents-only provision.
The justices will announce their decision sometime later this spring.
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