Tuesday, September 4, 2012

Allied Educational Foundation File Amicus Curiae Brief with U.S. Supreme Court Supporting the Right of All Persons to Obtain Public Records from All State and Local Governments

Judicial Watch announced today that 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.

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