Amicus Brief: Stovall v. Jefferson County Board of Education

Miranda Stovall wanted to know what questions her child was being asked on a survey given by the public school. She was concerned that the questions were invasive, particularly regarding gender and sexual orientation. She used Kentucky's freedom of information act to request a copy of the survey. But the survey was created by a third party, so there is a question about whether her access could be blocked by copyright law. 

There is a jurisdictional “shell game” that some public schools are playing with parents by asserting third-party federal-law objections to state open-records requests for such documents. The schools claim that the records can't be copied because they are copyrighted by a third party. When challenging this, litigants don't know which court to file their case in. The question is whether federal courts or state courts may decide whether it is a fair use, under the Copyright Act, to request and obtain a copyrighted document under state open-records law. 

Now on petition for Supreme Court review, Mrs. Stovall is asking the Court to clarify which court can decide the issue. The Manhattan Institute has filed a brief in support. We argue this is an important issue for transparent government, and it applies to many state-government issues where states increasingly use third-party vendors to create studies, surveys, and other documents. The problem is pervasive and needs to be resolved by the Supreme Court, which only needs to clarify which court has jurisdiction. Otherwise, many important state-government documents will be shielded from public view.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Addison Gills