On Appeal from the United States District Court For the District of Delaware (D.C. Civ. Action No. 03-1063) District Judge: The Honorable Joseph J. Farnan, Jr.
The opinion of the court was delivered by: Smith, Circuit Judge.
BEFORE: BARRY and SMITH, Circuit Judges, and DITTER, District Judge*fn1
The question presented in this appeal is whether Delaware's Freedom of Information Act ("FOIA"), 29 Del. Code Ann. § 10003, violates the Privileges and Immunities Clause of the United States Constitution by restricting noncitizens' rights to access, inspect, and copy public documents. We conclude that it does. Accordingly, we will affirm the District Court's orders granting summary judgment in favor of Matthew Lee and enjoining the State of Delaware from limiting FOIA benefits to its own citizens.
Plaintiff-Appellee Matthew Lee is a citizen of New York. He serves as the Executive Director of Inner City Press/Community on the Move, a community and consumer organization based in New York City. He is also a lawyer and author. Much of Lee's published work focuses on alleged predatory practices of banks and other financial service companies and the regulation of these entities by state and federal authorities. Lee regularly publishes articles on these issues in print media and online sources. In addition to these activities, Lee submits testimony and public comments on behalf of Inner City Press/Community on the Move to banking and other regulatory agencies on related topics.
On January 12, 2003, Lee requested records from Delaware's Attorney General regarding Delaware's decision to join a nationwide settlement with Household International, Inc., resolving an investigation into Household's deceptive lending practices. The request was made pursuant to Delaware's FOIA. Ten days later, State Solicitor Malcolm Cobin sent Lee a letter denying his request. In relevant part, the letter stated:
You request records of this office relating to the recent settlement with Household International Inc. and "for actions by your office on Household's continuing predatory lending and insurance in connection therewith." Your request is hereby denied. Pursuant to 29 Del. C. § 10003, "All public records shall be open to inspection and copying by any citizen of the State during regular business hours . . ." Your address indicates that you are not a citizen and therefore would not be entitled to inspect and copy public records under FOIA. App. at 167.*fn2
On September 3, 2003, Lee again requested information pursuant to § 10003 regarding the Household settlement, including any records related to a potential conflict of interest. State Solicitor Cobin denied Lee's request, citing the reasons set forth in his previous letter.
On November 24, 2003, Lee filed a complaint in the United States District Court for the District of Delaware against Governor Ruth Ann Minner and Attorney General M. Jane Brady,*fn3 alleging that the citizenship requirement in Delaware's FOIA violates the Privileges and Immunities Clause of the United States Constitution. Delaware filed an answer and, on January 14, 2004, Lee moved for summary judgment. Delaware objected, indicating that it would need to take discovery to determine whether the citizenship requirement interfered with Lee's fundamental right to engage in his trade as a journalist. The Court deferred consideration of Lee's summary judgment motion and set a discovery schedule. Lee and Cobin were the only two witnesses deposed. After the close of discovery, Lee renewed his motion for summary judgment and Delaware filed a cross-motion for summary judgment.
On May 13, 2004, the District Court issued an order granting summary judgment in favor of Lee and denying Delaware's cross-motion. In its accompanying opinion, the Court explained that Delaware's citizen-only provision violated Lee's fundamental right to "practice his common calling as a journalist and consumer activist on the same terms and conditions" as Delaware citizens who share his profession and to "engage in the political process with regard to matters of both national political and economic importance." App. at 18, 21. The Court also considered Delaware's argument that the citizenship requirement is substantially related to the State's interest in "defin[ing] the political community and strengthen[ing] the bond between citizens and their government officials." Id. at 22 (citation omitted). Although the Court acknowledged that the State's asserted interest might be valid in other contexts, it concluded that, in this case, Delaware had failed to "demonstrate how allowing noncitizens access to the same public information available to the State's citizens impedes or thwarts those interests." Id. at 22. It further explained:
If, as Defendants contend, one of the goals of the FOIA is to strengthen the bond between citizens and their government by ensuring transparency and accountability in government, then nonresidents are no more a threat to this goal than residents. Indeed, consumer advocates and journalists like [Lee] are particularly suited to advancing the goals of transparency and accountability, whether they are Delaware citizens or not, and it is ...