How Some States Put the Lie to the Public’s ‘Right to Know’

For the past few months, I’ve been working on an investigative story that requires filing public records requests in several states. I tend to file more federal than state requests, which means I’m used to waiting, and waiting, to get my hands on documents. Sometimes they’re never produced.

So I was pleasantly surprised when several states produced the information I asked for within days or a week of my request. But then I ran up against the laws of Arkansas and Tennessee.

I knew a handful of states prohibit out-of-staters from obtaining records. But it wasn’t until this past week that I had to personally contend with laws that limit freedom of information requests to state residents only — even if the consequences of those actions cross state lines.

An attorney with an Arkansas state agency told me that he had the records I wanted, but was denying my request because I don’t live there. (I checked with a lawyer at the Reporters Committee for Freedom of the Press to make sure the residency requirement was still in effect. He confirmed that it is.)

I filed two public records requests in Tennessee, one to a university and another to a state agency. Jason Miller, an agency attorney, emailed me this message: “The Department denies your request pursuant to Tenn. Code Ann. §10-7-503(a)(2) on the basis that state records are open for personal inspection by any citizen of Tennessee, and your request does not appear to be submitted by a Tennessee citizen.” A university administrator told me she would deny my request unless I produced a valid Tennessee driver’s license or current utility bill.

Enterprising reporters can find proxies to file requests on their behalf. I found someone in Arkansas willing to help me through the Arkansas Press Association. I’m still working on finding a proxy in Tennessee. (For more tips on how to access public records from state and federal agencies, check out “The Science Writers’ Investigative Reporting Handbook.”)

Virginia also has a residency requirement, though it does allow exemptions for journalists whose outlets publish in the state.

Residency requirements impede journalists’ ability to do our jobs by blocking access to public documents that may be critical to investigations that cross state lines. They interfere with our ability to inform citizens about issues that affect them. 

States have defended their residency requirements by saying out-of-state requests strain resources that should be reserved for their citizens. That’s what Virginia Solicitor General Earle Duncan Getchell argued in 2013 before the Supreme Court in McBurney v. Young.

The case was brought by two out-of-state residents, Mark McBurney of Rhode Island and Roger Hurlbert of California, who challenged Virginia’s denial of their request on constitutional grounds. Getchell argued that handling out-of-state requests creates a financial burden because the state has to hire people to do the work but can’t charge for overhead. “As one who is subject to FOIA requests,” Getchell argued, “we have a finite number of officials and employees who have to address these things.”

Several justices questioned whether fulfilling out-of-state requests really constitutes an added burden, since the state has to maintain the databases for Virginia citizens anyway. But in the end, they ruled in a unanimous decision that denying out-of-state residents access to government records does not violate the U.S. Constitution. “The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws,” Justice Samuel Alioto wrote.

Supreme Court decisions notwithstanding, there’s no doubt that states routinely make decisions that affect citizens beyond their borders. Consider the ongoing efforts by New York, Pennsylvania and other Northeastern states to curb air pollution from coal-fired plants in several states in the South and Midwest — including Virginia and Tennessee. Reporters and citizens in upwind states have every right to know why Tennessee, Virginia and neighboring states have failed to implement pollution controls.

Access to information may not be a constitutional right, but it’s essential for journalists to monitor government and serve the public interest. “Events that occur within Virginia are newsworthy beyond its borders, and non-citizen journalists across the country require access to state records in every jurisdiction,” a coalition of journalism groups argued in an amicus brief in support of McBurney and Hurlbert. “Access to state public records by non-citizens aids comparative and macro-analysis reporting thereby allowing the press to fulfill its watchdog role.”

Residency requirements make a mockery of the transparency that open government laws are meant to embrace. State officials who enforce these restrictions in effect say, we have the documents you want, but you don’t meet our arbitrary requirement, so we’re just not going to give them to you. That attitude undermines the public’s right to know what our government is up to.

The vast majority of states respect that right, with no residency restriction. We can continue to find people to file requests on our behalf in the few outlier states that don’t. Or maybe it’s time to push for an end to hollow talk by elected officials, and make state governments embrace both the spirit and intent of open records laws.