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VOL. 128 | NO. 91 | Thursday, May 09, 2013

Ruling Affects Tennessee Open Records Law

By Bill Dries

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The Tennessee Open Records Law is one of several state laws upheld in a recent U.S. Supreme Court ruling for its limitations on requests for public records by those who live outside of the state in question.

In an unanimous opinion April 29, the high court ruled it is legal for a state to limit the use of its open records or Freedom of Information Act law to its own residents.

Tennessee state law sets out what is considered public record and in another part of the Tennessee code specifies that it applies to requests by “any citizen of this state.”

The McBurney v. Young case that the court ruled on involved Virginia’s state law on public records.

Mark J. McBurney of Rhode Island and Roger W. Hurlbert of California sought public records from the state and were blocked by state officials citing Virginia’s law.

Hurlbert owns a real estate information and assessment company. McBurney was seeking a child support petition from a Virginia child welfare agency in his divorce case.

Data and media companies joined in the legal challenge.

Their case cited the “privileges and immunities” clause of the U.S. Constitution, which bars states from discriminating against out-of-state citizens in favor of its own citizens. They also cited the commerce clause that bars discrimination against interstate commerce.

A federal appeals court in Richmond, Va., rejected the case by McBurney and Hurlbert and the others. But a federal appeals court in Philadelphia had struck down a law similar to Virginia’s in Delaware.

Supreme Court Justice Samuel Alito, however, wrote, “By means other than the state FOIA, Virginia made available to petitioners most of the information they sought and the Commonwealth’s refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause.”

The Associated Press contributed to this story.

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