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Clay Rossi
Clay Rossi
Attorney • (800) 574-4332

Managing New Hurdles in Freedom of Information Act Requests

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In many instances it is beneficial to your case to get documents and information outside of the parameters of formal discovery. One popular vehicle is a Freedom of Information Act (FOIA) request. FOIA requests allow for the full or partial disclosure of government documents and are generally available on the federal and state level. However, last month’s 9-0 decision by the Untied States Supreme Court in McBurney v. Young made it a little tougher to access state documents if you are not a resident.

McBurney addressed Virginia’s version of FOIA which granted access rights only to citizens of Virginia. Virginia argued that the policy was reasonable because FOIA’s purpose as a sunshine law is to give citizens the opportunity to monitor the performance of government agencies – therefore non-resident had not interest. SCOTUS agreed.

Opposing the Virginia law were Mark J. McBurney and Roger W. Hurlbert, residents of Rhode Island and California respectively. The petitioners raised both the privileges and immunities clause as well as the dormant commerce clause in an attempt to overturn Virginia’s preferential treatment of its state version of FOIA. The effort failed.

The merits and legal reasoning of the case aside, the ruling means that to utilize FOIA in Virginia (as well as in Alabama, Arkansas, Delaware, Montana, New Hampshire, New Jersey, and Tennessee) you need to have a citizen of the state make the request. However, there is an easy way around the McBurney ruling thanks to organizations like Muckrock, a website dedicated to making FOIA requests primarily on behalf of journalists and activists.

FOIA is a powerful tool for finding information outside of formal discovery and while it has just gotten slightly harder, it is oftentimes worth the effort.