Tax Analysts recently requested, under the Arkansas Freedom of Information Act, “copies of all field audit manuals and audit training manuals.” The Arkansas Department of Finance and Administration sent back a misguided response. Revenue Legal Counsel Joel DiPippa, who wrote the letter denying Tax Analysts’ request, said Arkansas law limits the inspection and copying of public records to “any citizen of the State of Arkansas.” Neither the reporter who requested the audit manuals nor Tax Analysts is an Arkansas citizen.
The denial is a reminder of a limitation in a few states’ public records acts. Several other states, including Alabama, Missouri, New Hampshire, New Jersey, and Tennessee, also impose a similar “citizen” limitation. Unfortunately for journalists and researchers, the right to impose such a limitation was upheld by the U.S. Supreme Court in 2013. In that case, McBurney v. Young, the Court upheld Virginia’s right to limit the application of its public records act to Virginia citizens.
Justice Samuel Alito, writing for a unanimous Court, said, “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.” The opinion went on to conclude that Virginia’s law does not run afoul of the dormant commerce clause or the privileges and immunities clause. All in all a disappointing opinion that failed to take into account the importance of providing access to public records. Continue>>>