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October Term, 2012

April 29, 2013

Today the Supreme Court issued one decision, described below, of interest to the business community.

Access to State Records—Privileges and Immunities Clause—Commerce Clause

McBurney v. Young, No. 12-17 (previously discussed in the October 8, 2012, Docket Report)

The Virginia Freedom of Information Act provides that “all public records shall be open to inspection and copying by any citizens of the Commonwealth,” but grants no such right to non-Virginians. Va. Code Ann. § 2.2-3704(A). Today, the Supreme Court, in a unanimous opinion by Justice Alito, held that states do not violate the U.S. Constitution by providing only their own citizens with access to public records under FOIA statutes.

Petitioners were a Californian (Hurlbert) and a Rhode Islander (McBurney) who sought public records under Virginia’s FOIA, but their requests were denied because they were not Virginia citizens. Hurlbert ran a service that obtains real-estate-tax records for clients from state and local governments nationwide; McBurney sought records from a Virginia child-welfare agency to help with his petition for child support from his ex-wife, who lived in Virginia. Petitioners filed suit challenging Virginia’s refusal to extend FOIA rights to non-Virginians. They claimed that the Act violates the U.S. Constitution’s Privileges and Immunities Clause by depriving them of “the opportunity to pursue a common calling, the ability to own and transfer property, access to Virginia courts, and access to public information.” They also claimed that the Act violated the Constitution’s Commerce Clause by placing burdens on Hurlbert’s business that would not have applied to Virginia companies offering the same service.

The district court granted Virginia’s motion for summary judgment, and the Fourth Circuit affirmed, creating a split of authority with the Third Circuit (which had previously invalidated the citizens-only limitation in Delaware’s FOIA under the Privileges and Immunities Clause).

The Supreme Court agreed with the Fourth Circuit and affirmed. It held that Virginia’s FOIA did not violate Hurlbert’s right earn a living running a service that obtains property-tax records because the Act is not a protectionist measure designed to burden nonresidents, but rather is simply a means for Virginians to “obtain an accounting” from their public officials. The Court next held that the Act did not violate petitioners’ rights to own and transfer property or their right of access to Virginia courts, in part because the state provided other means to obtain most of the documents that petitioners sought. The Court then broadly held that “there is no constitutional right to obtain all the information provided by FOIA laws,” so the Act does not generally violate a right of public access to government documents. Finally, the Court held that the Act does not violate the dormant Commerce Clause because it “neither ‘regulates’ nor ‘burdens’ interstate commerce.” (The Court also suggested that even if the Commerce Clause did apply, the Act would still be permissible because it is designed to provide information “to those who fund the state treasury and whom the State was created to serve” about the programs that their tax dollars are used to fund.)

This case is of interest to the business community because state FOIA laws are often an important source of information for commercial entities, which may use materials retrieved under these statutes to challenge state and local regulations, to learn about state licensing and contracting decisions, and to obtain public information about competitors. Allowing states to enforce restrictions on nonresidents’ access to certain public records may inhibit businesses’ ability to perform those functions, or may increase the cost of doing so (by requiring businesses to hire local agents to file FOIA requests).

Any questions about the case should be directed to Richard Katskee (+1 202 263 3222) in our Washington office.

Mayer Brown's Supreme Court & Appellate practice ordinarily distributes a Docket Report when the Supreme Court grants certiorari in a case of interest to the business community and a Docket Report-Decision Alert when the Court decides such a case. We hope that you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Richard B. Katskee, their general editor, at rkatskee@mayerbrown.com or +1 202 263 3222).

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