On “fundamental” rights

During a local SPJ discussion about legislation affecting Arkansas’ Freedom of Information Act in March, state Sen. Eddie Joe Williams (R-Cabot) told the gathered journalists that FOI is not a right but a privilege.

Members of the audience objected to Williams’ characterization of FOI laws as a privilege. One young journalist said it disturbed her to hear freedom of information described as a privilege, “when it’s a tool that protects a variety of rights.”

But it seems Williams may have just been presaging the retrograde thinking evident in Monday’s U.S. Supreme Court ruling in McBurney v. Young, a case that challenged a provision of Virginia’s open-records law that limits access to citizens of that state.

Justice Samuel Alito, writing for a unanimous court, declared Virginia’s citizens-only restriction constitutional. Much of the opinion unfortunately focused on the commercial uses of public data, but it’s the section on the history of public records that offends open-government sensibilities.

Justice Alito and the court show skilled reasoning in noting that, although Virginia’s public-records law denies access to nonresidents, it does allow nonresidents access to its courts and other data in a way that provided most of the documents that had been sought by the two non-Virginian petitioners, Mark McBurney and Roger Hurlbert.

But when Justice Alito’s opinion veers into a peevish recounting of the blighted history of public-records jurisprudence, he and the court show how out of touch with Americans they are.

Does it really matter that “[m]ost founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them,” as Justice Alito wrote? Or that 19th century American cases tracked a similar philosophy?

He could just as easily have noted that American law once considered only white male property owners eligible to vote, and been just as relevant.

It’s alarming that Justice Alito asserts repeatedly that access to public records is not a “fundamental” right and that the country was just fine without FOI laws before the 1960s and will be fine without them in the future

Yes, Justice Alito and friends, the federal FOI law is only 47 years old and similar state laws about as recent. Open-government advocates fought hard-won battles to make local, state and federal governments more transparent to the citizens they serve.

Maybe “the Constitution itself is [not] a Freedom of Information Act,” as you wrote, but your opinion in McBurney gives regressive legislators safe cover to start closing access doors that are now open.

Only a half dozen states, including Arkansas, have public records laws that allow agencies to deny out-of-staters access to state and local documents. Let’s hope the number of states limiting access to residents remains at six after this ruling because the ability of Americans to figure out what is going on in their country – not just their state – will be severely diminished..

Without access to public records from many states, the Columbus Dispatch in 2009 could not have demonstrated that excessive secrecy exists at public universities nationwide because of abuse of the Family Education Rights and Privacy Act.

Without access to multiple jurisdictions, the Kansas City Star in 1997 might not have revealed lax safety measures nationwide that allowed college athletes to die.

Without access to a broad range of data, ProPublica’s Robin Fields in 2010 would have been hampered in showing wide disparities nationally in dialysis care.

That is scary, particularly at a time when the world is becoming more open. Americans don’t need more bunkering and secrecy. We are one nation, extremely mobile, and information is more portable and important than ever.

If we want to remain a beacon of freedom and justice, of progressive modernism, of advanced thinking, then we need to stand up against thinking that it’s OK to restrict or inhibit access to our governments, no matter where we live.

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