< New Limitations to Freedom of Information Act Requests


Friday, May 03, 2013

BROOKE GLADSTONE:  This is On the Media, I'm Brooke Gladstone, with news of a crucial Supreme Court decision Monday you probably don't know about. It ruled that states are free to reject Freedom of Information requests from nonresidents. This, as you will hear, is bad news for journalists, but it's also bad for everybody who's not a journalist. Case in point, Mark McBurney. He submitted a FOIA request for documents concerning himself from the State of Virginia. Virginia didn't comply. And the Court decided unanimously that it didn't have to. Mark McBurney:

MARK McBURNEY:  I was trying to get their internal documents which established who committed the negligence in misfiling my child support claim three separate times.

BROOKE GLADSTONE:  Right. You were living in Australia, your child was now living with you, so you no longer had to pay child support. In fact, you were supposed to get it.

MARK McBURNEY:  That’s correct. My son moved to Australia and my ex-wife and I had a deal where I would stop paying her child support and she would begin paying me child support, in conformity with the State of Virginia guidelines. She broke that agreement very quickly and I filed for child support with the child support agency in Virginia. And they misfiled my application three separate times, which caused a year delay in this process, so that was a year I was paying child support. The net cost to me was about 10,000 dollars, and I wanted to get documents which showed who screwed up and why.

BROOKE GLADSTONE: And what happened?

MARK McBURNEY:  They basically [LAUGHS] did everything they could to keep those documents from me. I filed my request by emails, they responded through surface mail, which took about two and half weeks to get to me in Australia. They were nonresponsive to my very direct requests for questions. And, by the way, I should note that I was a civil servant and I am an attorney, so I knew how to file a FOIA request and I knew how to follow up. I was their worst nightmare, I think.

And eventually I moved back to Rhode Island. I filed another FOIA request, and they said because I had filed from Australia that any future FOIA requests had to be sent by me back to Australian child support and then forwarded from them to Virginia, and Virginia would answer back to Australia and Australia would file their response with me.

BROOKE GLADSTONE:  And that's when you sued and this thing wound up at the Supreme Court.

MARK McBURNEY:  Exactly right.



BROOKE GLADSTONE:  Will you ever get restitution?

MARK McBURNEY:  No, I won’t get restitution. That ship has sailed, as they say. I’m marginally hopeful that I can still get the documents. There was a one-sentence statement by Justice Alito in the opinion that says if Virginia has information on a person, that person should be able to get it. I'm looking forward to seeing how Virginia responds to my request.

BROOKE GLADSTONE:  We're interested in this because it seems to pose a danger to journalism, but it seems like you don't have to be a journalist to be concerned about this.

MARK McBURNEY:  Well, I think that’s absolutely true, and the Court oral arguments focused on what they termed “a slight delay,” that journalists and business people who are looking for public records could simply hire a surrogate in Virginia to make the request on their behalf. But I can't hire a surrogate because the information I’m requesting is germane only to me. So someone in Virginia can’t ask for Mark McBurney’s child support records; only I can. So my options are either to file suit or to establish Virginia residency.


MARK McBURNEY:  And that seems very unfair to me.

BROOKE GLADSTONE:  Mark, thank you very much.

MARK McBURNEY:  My pleasure, Brooke.

BROOKE GLADSTONE:  Mark McBurney is a Rhode Island attorney.

So while federal Freedom of Information requests can't be ignored, state FOIA requests can. But reporting, especially investigative reporting, often crosses borders. So many news outlets, including the New York Times, the New Yorker, the Daily Caller and Bloomberg filed an amicus brief against Virginia's Public Records Rule, also among them, the Reporters Committee for Freedom of the Press. The Committee's Mark Caramanica says the rule could hobble a lot of vital work.

MARK CARAMANICA:  Say a reporter in Colorado wants to do some sort of 50-state survey, see how states are stacking up on a particular issue against each other, Virginia would not have to honor his FOIA request.

BROOKE GLADSTONE:  Are these hypothetical examples or actual examples?

MARK CARAMANICA:  Oh no, these are real stories that were reported. For example, USA Today did a story where they compared how the No Child Left Behind initiative was impacting teacher behavior in a variety of jurisdictions and pulled records dealing whether teachers were disciplined for potentially coaching students and, you know, trying to cut corners on the standardized tests, and so forth, to boost up their scores. That was a case where, you know, you need access to Virginia records, obviously, to put Virginia in the mix.

ProPublica did a story where they investigated dialysis centers all across the country, their effectiveness and safety records, and so forth. To get that national perspective, you need Virginia. And, you know, it leaves a hole in the entire story and the complete picture, but it also shortchanges citizens of Virginia because they don't get the benefit of knowing where their state stacks up on certain issues.

BROOKE GLADSTONE:  The Virginia statute does include an exception for out-of-state and foreign news organizations that serve Virginia. Well, every single news organization lives online. They all can serve Virginia. So doesn't that make this moot?

MARK CARAMANICA:  Well, we don't know because the media exception to the law talks about newspapers that circulate within the Commonwealth and broadcasters that broadcast their signals within the Commonwealth. A literal reading of that provision does not incorporate online news.

BROOKE GLADSTONE:  Now, in his decision for a unanimous Court, Judge Samuel Alito wrote, quote, “Requiring noncitizens to conduct a few minutes’ of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden.” I mean, is he right?? Can’t a reporter just do a little clicking to get to this information? I mean, if the stuff is public, it’s public.

MARK CARAMANICA:  A large majority of government records and records that journalists would be interested in aren’t necessarily posted on the internet, particularly if it's a controversial record that the government would otherwise not have made public. So, in many cases, you do have to make that FOIA request.

BROOKE GLADSTONE:  I mean, Alito is right when he says it is relatively cumbersome. It does cost staff time and money.

MARK CARAMANICA:  You know, each state has a FOIA law set up and a system in place already to preserve records. Those costs are fixed in there, no matter what. And in Virginia, you know, if there is a, a request from out of state, they’re allowed to charge additional fees to comply with that request, as they would any other request that came in. So the idea that it's somehow taxing the state in some way is somewhat disingenuous.

MARK CARAMANICA:  Can't journalists make an end run around this decision by using one of these services that help people file FOIA requests? You could just go to one of these services in the state of your choice, say Virginia, and have them file it for you.

MARK CARAMANICA:  Well, this is one of the things that I think it was Chief Justice Roberts pointed out at oral argument. He said, you know, can't you essentially just find a straw man in the state to make the request?


And they acknowledged that and it sort of points out the folly of it. Well then, what’s the point of having this restriction? And there are many records where the government’s gonna fight you on it. And you’re gonna possibly have to take that to court. So the question becomes, well then who pursues that? Is it the straw man's responsibility, as he's the person that really was going to have probably legal standing to pursue that? I'm not sure that's what they're signing up for one when, when they offer to make a request for you, to, to take it to court and litigate it for you.

BROOKE GLADSTONE:  With a handful of states having rules like this, in practical terms, how much will this affect the information that Americans get?

MARK CARAMANICA:  Well, we’re fearful of a Supreme Court announcement that says to all 50 states that, hey, it's okay to discriminate in your FOIA laws. Like I talked about, it does frustrate the free flow of communication when there's something going on in another jurisdiction, and it could be right across the river from your local town, and you as a, a resident of another state can't get access to that information. That hurts journalism.

BROOKE GLADSTONE:  Mark, thank you very much.


BROOKE GLADSTONE: Mark Caramanica is the freedom of information director for the Reporters Committee for Freedom of the Press.



Mark Caramanica and Mark McBurney

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