On April 29, 2013, the Supreme Court of the United States decided McBurney v. Young, No. 11-10362, holding that Virginia's citizens-only Freedom of Information Act provision does not abridge fundamental privileges and immunities and does not impermissibly regulate commerce.
Mark McBurney and Roger Hurlbert separately requested documents under Virginia's Freedom of Information Act. Virginia agencies denied each request because they were not Virginia citizens. McBurney was a former Virginia resident whose ex-wife was still a Virginia citizen. He sought records after his wife defaulted on her child support obligations and the Division of Child Support Enforcement delayed filing a petition for child support on his behalf. Although he was able to obtain many documents about his own case under Virginia's separate Data Collection and Dissemination Practices Act, the Commonwealth denied his request under the Freedom of Information Act for general policy information about how the agency handled claims like his. Hurlert was the sole proprietor of a business that requests real estate tax records on clients' behalf from state and local governments across the country. A county real estate assessor's office denied his request for tax records. Both sued under 41 U.S.C. §1983 for declaratory and injunctive relief under the Privileges and Immunities Clause and (in Hurlbert's case) the dormant Commerce Clause. The district court granted Virginia's motion for summary judgment, 780 F. Supp.2d 439 (E.D. Va. 2011), and the Court of Appeals affirmed, 667 F.3d 454 (4th Cir. 2012). The Supreme Court granted certiorari to resolve a conflict with Lee v. Miner, 458 F.3d 194 (3d Cir. 2006) (holding that a citizens-only feature of Delaware's FOIA violated the Privileges and Immunities Clause). Other states whose freedom of information laws make records available only to their citizens include Alabama, Arkansas, Missouri, New Hampshire, New Jersey and Tennessee.
The Supreme Court affirmed the Fourth Circuit, holding that the citizens-only FOIA provision did not violate any of the asserted fundamental privileges or immunities: (1) the opportunity to pursue a common calling; (2) the ability to own and transfer property; (3) access to Virginia courts; and (4) access to public information.
First, the Court held that the FOIA gave citizens a mechanism by which "those who ultimately hold sovereign power" may obtain an accounting from the public officials to whom they delegate the exercise of that power, and its citizens-only provision recognized that "Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping." The provision did not violate the Privileges and Immunities Clause "simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on information contained in state records."
Second, Virginia allowed non-citizens to obtain or inspect real estate title, lien and mortgage records under other statutory provisions and from courts, and additional records as a matter of practice (though not statutory right) were "readily available to all" and often posted online. "Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens' ability to own or transfer property in Virginia."
Third, the Privileges and Immunities Clause "does not require States to erase any distinction between citizens and noncitizens that might conceivably give state citizens some detectable litigation advantage." Noncitizens still had "reasonable and adequate" access to Virginia's courts through discovery of "any relevant, nonprivileged documents needed in litigation, and a separate statute provided access to "any person" to inspect judicial records.
While the Court rejected the petitioners' first three arguments based on the application of recognized fundamental rights, it rejected the fourth argument on a broader basis, holding that the asserted "right to access public information on equal terms with citizens" was not a fundamental constitutional right, because "there is no constitutional right to obtain all the information provided by FOIA laws." A First Amendment constitutional right to some government information (including most judicial records) exists based upon tradition and the recognition that public access plays a significant positive role in the functioning of government. Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982). However, federal and state FOI laws are of more recent vintage and extend to broader categories of information, and the Court here rejected "a sweeping right" of access by noncitizens to all government information within a particular FOI law.
Finally, the Court rejected Hurlbert's argument that the citizens-only provision violated the dormant Commerce Clause. It held that the provision "neither ‘regulates' nor ‘burdens' interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all."
Justice Alito delivered the opinion for a unanimous Court. Justice Thomas joined the Court's opinion and filed a concurring opinion.