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Bar News - June 21, 2013


Municipal & Governmental Law: Who Has the Right to Know?

By:

US Supreme Court Rules Citizenship Provisions Are Constitutional

New Hampshire has a citizens-only provision in its government records statute, but unlike other states, New Hampshire also enshrined the public’s right to know in its Constitution.

Changes in technology and citizens’ expectations of government in general mean that, to be successful, municipal government must function much differently than it did only a generation ago.

Today, municipal governments are expected to be increasingly transparent, whether by televising and streaming city council meetings and land use hearings online, disseminating public works information via Twitter, or posting budget information for all to review on a municipal website. This all makes it much easier for a citizen to be informed and engaged without ever stepping foot in city hall. However, due to the amount and speed of information available via the Internet, municipalities in New Hampshire are increasingly finding themselves responding to, and being held accountable by, people who do not reside in the municipality, state, or even the country.

Because municipal resources are limited and responding to requests for information undoubtedly consumes resources, this situation begs an interesting question: To whom should a municipality’s limited resources be directed?

While not directly answering the foregoing question, the US Supreme Court on April 29 held in McBurney v. Young that a citizens-only provision in Virginia’s Freedom of Information Act (VFOIA) does not violate the US Constitution. The controversy arose when Mark McBurney, a resident of Rhode Island, and Roger Hurlbert, a resident of California, filed government records requests in Virginia, pursuant to the VFOIA. McBurney requested records related to his child support case, while Hurlbert requested real estate records in furtherance of his business, which requests and obtains real estate records from government entities across the country.

Enacted in 1968, the VFOIA provides Virginians with access to governmental records, while generally denying out-of-staters access to the same records. Specifically, the VFOIA states that “[e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by citizens of the Commonwealth…” That being the case, both requests were denied, together with many others also made by out-of-state requestors.

Ultimately, both McBurney and Hurlbert were able to obtain most, but not all, of the information they sought via alternative avenues. Nevertheless, the pair filed suit, alleging that the citizens-only provision of the VFOIA violated the Privileges and Immunities Clause of Article IV, and in Hurlbert’s case, the dormant Commerce Clause, of the US Constitution.

The US District Court for the Eastern District of Virginia granted summary judgment to the respondents, holding that the citizens-only provision violated neither the Privileges and Immunities Clause nor the dormant Commerce Clause. On appeal to the United States Court of Appeals for the Fourth Circuit, that decision was affirmed, creating a split in the circuits, as the Court of Appeals for the Third Circuit held in Lee v. Minner (2006), that a citizens-only provision in Delaware’s Freedom of Information Act was unconstitutional. Hence, the issue was ripe for the United States Supreme Court, and certiorari was granted.

In McBurney, the Privileges and Immunities challenge was based on the VFOIA’s curtailing of four identified privileges and immunities: the right to earn a living obtaining property records from state and local governments, the right to own and transfer property in Virginia, the right to access Virginia courts on the same basis as citizens of Virginia, and the right to access public information on the same terms as citizens of Virginia.

In a unanimous decision written by Justice Alito, the Supreme Court rejected each argument. The Court found no evidence to support the contention that the VFOIA “was enacted in order to provide a competitive economic advantage for Virginia citizens,” nor did it “prevent citizens of other States from obtaining such documents” necessary to own or transfer real property. The Court further reasoned that “the challenged provision of the Virginia FOIA clearly does not deprive non-citizens of ‘reasonable and adequate’ access to the Commonwealth’s courts.”

Finally, and perhaps most significantly, the Court found that the right to access public information on equal terms with citizens is not a fundamental constitutional right, holding that “there is no constitutional right to obtain all the information provided by FOIA laws.”

The Court also dismissed the challenge under the dormant Commerce Clause, ruling that the VFOIA “neither ‘regulates’ nor ‘burdens’ interstate commerce; rather it merely provides a service to local citizens that would not otherwise be available at all.” According to the Court, “[i]nsofar as there is a ‘market’ for public documents in Virginia, it is a market for a product that [Virginia] has created and of which [Virginia] is the sole manufacturer…” Therefore, the VFOIA was not found to be susceptible to dormant Commerce Clause scrutiny.

While this decision drew great interest from state and local government groups across the country, it should be of particular interest to New Hampshire municipalities. Notably, New Hampshire was identified in the decision as being one of a handful of states that has a citizens-only provision in its government records statute. That being said, the Court failed to recognize a fact that distinguishes New Hampshire’s open records framework from those of other states, which is that the public’s right to access government records is also embodied in the New Hampshire Constitution.

Article 8 of the NH Bill of Rights was amended in 1976 to declare that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” In addition, the New Hampshire Attorney General’s Office notes that although there is a reference to “citizens” in RSA 91-A:4, I, the term is not defined anywhere in the Right-to-Know Law.

As a result, the Attorney General’s Memorandum on New Hampshire’s Right-to-Know Law (2009) advises that requestors should not be required to demonstrate that they are citizens of either New Hampshire or the United States. However, given the decision in McBurney, and considering the impact on municipal resources cited above, it may be prudent to examine the question of who exactly is a “citizen” for purposes of RSA 91-A.


Leon I. Goodwin III is assistant city attorney for the City of Keene. He provides general legal counsel to the mayor and city council, city boards and commissions, and all city departments.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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