U.S. Supreme Court

SCOTUS rejects 'sweeping' privileges claim by out-of-staters denied FOIA records in Virginia


Virginia does not violate the U.S. Constitution when it bars out-of-state residents from accessing state records through its Freedom of Information Act, the U.S. Supreme Court has ruled.

In a unanimous opinion (PDF), the court said it was rejecting the “sweeping claim” that the statute violates the privileges and immunities clause by denying out-of-state residents the same right to access public information as Virginia citizens.

Justice Samuel A. Alito Jr. wrote for the opinion for the court. There is no constitutional right to obtain all the information provided by FOIA laws, he said. Nor are the laws long-entrenched, he added. The federal FOIA statute was enacted in 1966 and the Virginia law in 1968. “There is no contention that the nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted,” he wrote.

The court also found no commerce clause violation, saying that the law neither regulates nor burdens interstate commerce.

One of the plaintiffs was California citizen Roger Hurlbert, owner of a company that searches property assessment records for its clients. The second plaintiff was Mark McBurney, a former state resident who sought records related to his child support application.

Both Hurlbert and McBurney could obtain much of the information they sought through other means, according to Alito’s opinion. Hurlbert’s clients, for example, could still obtain property and tax records. McBurney could access information through a different records law or court discovery.

Hurlbert had claimed Virginia’s citizens-only FOIA provision hindered his ability to make a living in violation of the privileges and immunities clause. But “Hurlbert does not allege—and has offered no proof—that the challenged provision of the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens,” Alito wrote. Instead, the statute was enacted to allow Virginia citizens a means to obtain an accounting from public officials, Alito said.

“While the clause forbids a state from intentionally giving its own citizens a competitive advantage in business or employment, the clause does not require that a state tailor its every action to avoid any incidental effect on out-of-state tradesmen,” Alito said.

McBurney had claimed the Virginia-only FOIA provision had put him at a litigation disadvantage. But Alito said all that the Constitution requires is reasonable and adequate access to the court. “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,” Alito said.

The case is McBurney v. Young. Hat tip to SCOTUSblog.

Prior coverage:

ABAJournal.com: “May Va. deny records to noncitizens? Scalia suggests state can bar outsiders from ‘mucking around ’”

ABA Journal: “Supreme Court weighs whether Virginia can deny public records to noncitizens”

ABAJournal.com: “Supreme Court’s Recent Cert Grants Include Rare Privileges and Immunities Case”

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