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Variably Sunny: SCOTUS Allows Local FOIA Restrictions 86

Posted by timothy
from the like-a-slapp-in-reverse dept.
v3rgEz writes "The Supreme Court ruled Monday morning that states have the right to restrict public records access to locals, meaning one more hurdle to would-be muckrakers everywhere. Even in-state requesters are harmed: It means one more bureaucratic hurdle and another excuse for agencies to respond in paper rather than electronically. MuckRock has helped file requests in all 50 states — important for projects like the Drone Census — and we're looking for more volunteers to help ensure transparency from sea to shining sea. States impacted: Alabama; Arkansas; Delaware; Georgia; New Hampshire; New Jersey; Tennessee; and Virginia. If you live in one of the above, fill out a simple form and we can help ensure that sunshine isn't restricted depending on where you live."
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Variably Sunny: SCOTUS Allows Local FOIA Restrictions

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  • by Anonymous Coward

    The obvious workaround is hire a citizen to make the request for you.

    This is so obvious, I'm not sure why they think limiting it to citizens is reasonable.

    • by Anonymous Coward

      Another problem with this is that it disallows anonymous requests.

      You could be made to prove you're a citizen and in so doing reveal your identity.

    • by number17 (952777)
      Until the government stonewalls.

      I used to follow the site illegalsigns.ca until its demise a year or two ago. They quite frequently crowdsourced FOIA requests until somebody in the City department decided they were frivolous. A decent article on what took place: http://torontoist.com/2008/04/no_stonewalling/ [torontoist.com].
    • <quote><p>The obvious workaround is hire a citizen to make the request for you.</p><p>This is so obvious, I'm not sure why they think limiting it to citizens is reasonable.</p></quote>

      Well if a person has to pay to get info they will not be snooping into any and all they can for one, or they have to have a lot of money to spend. It will stop sites like Spokeo.com from exploiting anything they can. At least I hope it would. It creates jobs. ;-)
    • Re: (Score:2, Informative)

      by Anonymous Coward
      I had to read both TFS and your post multiple times before I understood that "restrict public records access to locals" meant that they are restricting everyone else from accessing those public records.
    • It's meant to be an impediment. Being reasonable has nothing to do with it.

  • by Albanach (527650) on Tuesday April 30, 2013 @10:53AM (#43591413) Homepage

    While it took much longer for the UK to get a freedom of information act., it does seem much more powerful than that available in the US.

    There's no cost for most inquiries (where the cost to the government body to respond is less than £600. It covers the bulk of public bodies. Anyone, anywhere on the world can use it. Replies are expected within 20 business days.

    Combined with the Data Protection Act, and it seems UK citizens have far greater rights and protections when it comes to personal and public data than who live in the United States.

    That's not to say the UK FOIA is perfect, far from it. Exceptions are too wide, and some government bodies can be obstructive. Still it has delivered useful information that would likely not have been discovered otherwise.

    • There's no cost for most inquiries (where the cost to the government body to respond is less than £600. It covers the bulk of public bodies. Anyone, anywhere on the world can use it. Replies are expected within 20 business days.

      Are you sure you'e not comparing it to Sunshine laws? What you're describing sounds like the already existing set of laws that demand most government bodies operate transparently and have openly available records (often requiring they be available online for instant viewing for free, in more recent updates). The FOIA allows citizens to request sealed and classified information: it is reviewed against a set of very limited criteria, and if it doesn't fit any, it is released. If only portions fit, those p

    • One other, rather major, difference: the UK is governed by the crown, full stop. The crown might choose to limit some of its powers (e.g., the Magna Carta), or delegate them to Parliament, but as a legal entity it can more or less do whatever the hell it wants, and when it makes a rule, it will apply to every level of government below it. The federal government of the US is powerful, but it can't actually force state governments to do a lot of things if they don't want to. (They can, of course, make that re
      • I would guess that the only reason the crown still has that power is that they never use it. As soon as a monarch tries to overrule Parliament, I suspect that the power would be taken away, and not necessarily politely.
        • The power is being exercised through Parliament, but it is still the crown's power even if the possessor of the crown no longer controls all of it. The UK is a divine right monarchy that has had various limitations placed on the monarch, some of which have essentially divested the monarch of more than a ceremonial role, but the government still has those powers unless it has signed them away. The US government is fundamentally limited by what the Constitution says it can do. And in an awful lot of circumsta
          • it is still the crown's power

            In case the crown ever gets uppity, here are two predecessors to mention: Charles I and James II.

            • The crown is that uppity all the time. The monarch, not so much.

              The basis of UK law is divine right monarchism with limitations thrown on. The basis of US law is a written constitution that carefully circumscribes the powers of government. Even though both countries have common law systems, their fundamental structures are radically different.
  • One person (Score:5, Interesting)

    by Spazmania (174582) on Tuesday April 30, 2013 @10:53AM (#43591427) Homepage

    If with all the Internet at your disposal you can't find one single person in the state willing to submit the FOIA request and pass you back the results, it's a good sign you're wasting everybody's time and *shouldn't* have access to the information you seek.

    • by Anonymous Coward

      True. It makes much more sense to err on the side of not wasting the government's time than on the side of government transparency.

      • Re:One person (Score:5, Insightful)

        by Spazmania (174582) on Tuesday April 30, 2013 @12:11PM (#43592295) Homepage

        It's not the government's time. As a citizen of Virginia, it's my time. *I* paid for it.

        • by Spazmania (174582)

          And in case it wasn't clear, I don't want some dope from California wasting my Virginia tax dollars on some paranoid quest to find out what Virginia knows about alien abductions. If you can't at least find a like-minded Virginian to sign his name to the request, something is seriously wrong with the request.

        • You're not a "citizen" of Virginia, you're a resident (as am I). You're correct about funding issue, though. however, these states should allow out of state residents to pay for these requests rather than just denying them outright.
          • by Spazmania (174582)

            Check your civics boss. According to the 14th Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

          • by cayenne8 (626475)
            Actually, you are a citizen of your state first, and THEN a citizen of the United States.
    • by Anarchy24 (964386)
      A Congressional audit has found extreme waste in the document security system... classified documents are very burdensome to track and secure. I believe it was something like 30% of all documents contain no sensitive information whatsoever. The government opposes releasing information because it can make them look bad by exposing wasteful spending, secret investigations where prosecution was declined, or the government intentionally poisoning its soldiers to test chemical weapons and "cures". A very small
      • by Spazmania (174582)

        The overwhelming majority of classified documents are classified because they were derived in part from some other document that was classified and were written by a government contractor who is not authorized to declassify any portion the prior document marked classified.

        Even if that weren't true, it has no bearing on a state government's response to FOIA requests. Classification is purely a Federal government thing where Federal FOIA rules apply.

        • by Anarchy24 (964386)
          My point stands: the majority of information is unjustifiably secret and should be released without issue, and a lot of what remains makes people look bad. Also, the government intentionally drags its feet, "loses" documents (yeah... but they can find an original income tax receipt from 40 years ago), and redacts entire pages of everything except the "the"s and the "is"s There is a reason that the government fights so hard against releasing this information, and it definitely isn't for our own good.
  • The SCOTUS loves to ignore the 9th amendment. They seem to find all these restrictions on civil liberties all over the place, because things aren't explicitly enumerated. Oh wait. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
    • How does this ignore the 9th amendment? The constitution restricts the federal goverement not state goverment. Some things restrict state goverment because of the 14th amendment. But FOIA requests are not an equal protection issue unless states try to withould information about a protected group.
      • Re:9th amendment (Score:5, Insightful)

        by Hatta (162192) on Tuesday April 30, 2013 @11:13AM (#43591633) Journal

        The constitution restricts nothing. It grants powers to the government. Anything not explicitly granted is prohibited.

        • Re:9th amendment (Score:4, Insightful)

          by Zak3056 (69287) on Tuesday April 30, 2013 @11:28AM (#43591813) Journal

          The constitution restricts nothing. It grants powers to the government. Anything not explicitly granted is prohibited.

          "Congress shall make no law," "shall not be infringed," "excessive bail shall not be required," etc, sure sound like restrictions to me.

          • by kimvette (919543)

            The bill of rights is a group of amendments which further clarify that we are endowed inalienable natural rights by our creator (be that creator YHWH, FSM, zeus, or random chance)

          • by _xeno_ (155264)

            "Congress shall make no law," "shall not be infringed," "excessive bail shall not be required," etc, sure sound like restrictions to me.

            Congratulations on demonstrating why the founding fathers didn't want to create the Bill of Rights in the first place.

            Those aren't restrictions - they're clarifications. The government never had those powers in the first place, because they were never granted to them. All the Bill of Rights does is spell it out in plain language that these are things that the government cannot do.

            (Which it does anyway: see gun control, health care laws, obscenity laws, and most recently, the refusal to allow the Boston mara

            • by Zak3056 (69287)

              I agree with you 100%, and am also disheartened by the lack of attention paid to the 9th and 10th amendments. I was merely being pedantic.

        • by fwice (841569)

          replying to remove incorrect mod!

        • It grants powers to the federal goverement. Anything not explicity granted is prohibited by the federal goverment. State constitutions grant powers to state goverment.
      • Don't interrupt a good rant with facts and logic.

    • by Anonymous Coward

      The non-enumerated (and most of the enumerated) rights are generally seen as restrictions on what the State may no, rather than mandates of what the state must do. People have more or less the same rights as before. But it seems a State only has an obligation to act when one of its residents or citizens makes the request.

    • Re:9th amendment (Score:5, Informative)

      by Baloroth (2370816) on Tuesday April 30, 2013 @11:13AM (#43591637)

      How does the ninth amendment even apply, in any way? The FOIA isn't in the constitution at all. Anyways, the SCOTUS found a long (long) time ago that the 9th amendment only applies to the federal government and isn't enforceable against the states, so even if it was in some way relevant, it still wouldn't apply, as this is a state-level FOIAs that the ruling was on.

    • 10th amendment (Score:5, Informative)

      by jklovanc (1603149) on Tuesday April 30, 2013 @11:54AM (#43592111)

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      It seems that State held information is a State matter and not a federal one.
      It is interesting that people look upon the US as a monolithic country when it was formed more as a confederation of independent States. The states guard their sovereignty very strongly. The SCOTUS appears to see FOI requests from different states the same as FOI requests from different countries and, as it is the way the US is set up, it should. If a State does not want to respond to FOI requests from different States or countries there is no Federal power that requires them to.

      Here is a quote from the decision;

      The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power.

  • Or if they do, the Supreme Court will fix them so they don't. Too many chances of real corruption being exposed if people can get information on what the state does.
    • The people of Virgina can access their information that way. Most of the rest these out-of-state people wanted they got through other means. One guy wanted his own records related to his kids...and got it. Another wanted info already on the Internet by Virginia, and ruling he had to spend a few minutes surfing to get it rather than the cumbersome FOIA process was hardly "burdensome".

      Also, there is no constitutional right to records -- it has never been considered so historically, and is something elected

    • by jklovanc (1603149)

      Which law do you see as being broken by the Virginia? People who reside in Virginia can get the information. It is just people out of Virginia who can not file FOI requests.

  • ever more legitimized wikileaks.
  • by Notabadguy (961343) on Tuesday April 30, 2013 @11:51AM (#43592071)

    FTFA.....

    Summing up what the court had to say:

    1. The government of a state works for the citizens of that state - who pay their salary. Not for non-state residents.
    2. Information that is freely available online or at a clerk's office does not need to be provided through a FOIA request.
    3. You do not have the right to treat the government of another state like a slave.

  • by oneiros27 (46144) on Tuesday April 30, 2013 @11:52AM (#43592091) Homepage

    I admit, I haven't read the full thing, but as soon as I made it 1/2 a page in, I had to respond ...

    First off, this doesn't seem to be about the federal FOIA, it's about a state's act. And the limit here is that states don't have to respond to people who aren't citizens of their states. The 2006 Lee v. Minner decision (458 F.3d 194) found that Delaware wasn't allowed to have such a clause in their FOIA, so this isn't even going to affect all states.

    That being said, I'm an elected municipal official in Maryland (which falls under the Lee vs. Minner ruling, as I understand it) ... and it's possible that we'd get sued under the equivalent Maryland law, as someone recently tried to demand from us *EVERY* *LAST* business transaction that we made for the last 7 years. (I can't remember the exact wording; it's possible that we claim that the report requested was a 'new record' and thus something that didn't exist) Mind you, we have 8 employees, 3 of whom are police officers, and 3 of whom are public works. So that'd mean that we'd have to tie up our accountant or town clerk for weeks to go through all of the records, properly sanitize everything to keep from leaking restricted information (like PII, as we're so small that we have a single system that also handles payroll), which would mean that we couldn't actually serve our citizens in the process.

    Why did the person want this it? Because they were starting a website to charge businesses for access to this information.

    If a person has a legitimate need for the information, they should be able to get a citizen of the state to file the request on their behalf. How much time has been wasted in Hawaii by responding to birth certificate requests over the last few years?

    (note; I have a full time job and don't participate in the day-to-day operations of our town; I have no idea how the request ended up playing out (or if it's finished playing out yet); I believe it was sent to our attorney to deal with)

    • by jklovanc (1603149)

      The 2006 Lee v. Minner decision (458 F.3d 194) found that Delaware wasn't allowed to have such a clause in their FOIA, so this isn't even going to affect all states.

      Lee v. Minner is a ruling from the 3rd Circuit Court of Appeals. The SCOTUS is a higher court and therefore its opinion would supersede the lower court's opinion.

    • by TubeSteak (669689)

      http://sunshinereview.org/index.php/Maryland_FOIA_procedures [sunshinereview.org]

      The Maryland law allows departments to charge a reasonable fee which includes both the cost of duplication as well as any staff time in excess of 2 hours involved in the search, compilation, or reproduction of materials. Waivers are permitted considering the person requesting the documents financial status and the public interest in the release of the information.

      Make a reasoned guess at how many hours it'd take someone to compile and sanitize the records,
      multiply by the hourly wage of a temp, then add in a fudge factor because stuff always take longer,
      then add in another fudge factor because everything the temp does will need to be reviewed.
      You send that dollar number to the FOIA requester and ask if they still want the documents.

      Why did the person want this it? Because they were starting a website to charge businesses for access to this information.

      Good for him, but without a compelling public interest, there's no reason he

  • "And in a rare double-whammy decision, the right wing of the court declared the Confederate States of America legal and instructed the Northern Aggressors to cough up war reparations. Most reporters present agreed Justice Thomas hadn't quite thought his vote completely through."
  • by Anonymous Coward

    It was a UNANIMOUS decision. Whatever you may think of Sarah Palin's politics, she was forced to step down as the governor of Alaska because of the cost of out-of-state FOIA requests to such a small state. If this has a cost so prohibitive that the corporations without any employees in a state can actually undermine the will of the voters of the state, then stopping such a practice is a Good Thing(TM).

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