Judicial Watch • Brief Supporting the Right of All Persons to Obtain Public Records from All State and Local Governments

Brief Supporting the Right of All Persons to Obtain Public Records from All State and Local Governments

Brief Supporting the Right of All Persons to Obtain Public Records from All State and Local Governments

AUGUST 29, 2012

Judicial Watch on August 29, 2012 it filed an amicus curiae brief with the United States Supreme Court in conjunction with the Allied Educational Foundation (AEF) asking the High Court to take the case to resolve a Virginia lawsuit involving the constitutional right of American citizens to obtain records from state governments(Mark J. McBurney, et al., Petitioners, v. Nathaniel L. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al., Respondents (No. 12-17)). The lower court ruling at issue in the amicus brief, if allowed to remain in force, would prevent non-Virginians from gaining access to public records from Virginia state and local governments.

As Judicial Watch and AEF note in their brief, the Supreme Court must resolve the case as “there is a split between the U.S. Courts of Appeal for the Third and Fourth Circuits as to whether the right of access to public records is a ‘privilege and immunity’ under the U.S. Constitution.” (The Privileges and Immunity Clause states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”) The Third Circuit held that the right of access to public records is a “common law right.” However, the Fourth Circuit disagreed, ruling that the denial of records did not violate any constitutional right.

In their brief, Judicial Watch and the AEF maintain that state and local government records have bearing on issues of national interest and should therefore be subject to open records requests even if the requester is not a resident of the state receiving the open records request:

The right of access to public records pre-exists the formation of the Nation. In fact, the right of access to public records predates the development of the states. Individuals have always sought public records from city, county, and state governments to ensure that the people’s representatives are properly and positively maintaining democracies and adhering to good government principles.

If not overturned, the Fourth Circuit’s ruling will hinder, if not abolish, the people’s ability to monitor the workings of all governments. Because many policy decisions and activities of local governments are being debated or implemented in other localities across the Nation or effect the United States as a whole, the right of access to a public record not only sheds light on local government, but it also bears upon the vitality of the Nation as a single entity. For the foregoing reasons, Amici respectfully request that the petition for a writ of certiorari be granted.

The lawsuit in question involves Mark J. McBurney, a former resident of Virginia, who sought access to Virginia government records that relate to McBurney’s pursuit of child support payments from his ex-wife. Mr. McBurney’s ex-wife allegedly defaulted on her child support obligations. McBurney filed a Virginia FOIA request with the Division of Child Support Enforcement seeking “all emails, notes, files, memos, reports, policies, [and] opinions” pertaining to McBurney, his son, and his ex-wife, as well as “all documents regarding his application for child support” and information regarding the handling of child support claims. His intent was to determine the cause for the delay in child support payments.

The DCSE denied McBurney’s FOIA request on the grounds that the information was confidential and protected under Virginia law, and because McBurney was not a citizen of the Commonwealth of Virginia. (Mr. McBurney at the time of the filing resided in Rhode Island.) A second substantively identical request was also denied by DCSE solely on the grounds that McBurney was not a citizen of the Commonwealth, precipitating McBurney’s appeal to the U.S. Supreme Court.




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