U.S. Supreme Court

Chemerinsky: Court unanimously wrong on Virginia's public records law

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Erwin Chemerinsky.

Several different constitutional provisions and principles prevent states from discriminating against out-of-state residents. In light of this, it was surprising and troubling that the U.S. Supreme Court ruled unanimously in McBurney v. Young (PDF) that it is constitutional for a state to allow only its own citizens to use its freedom of information act.

McBurney, issued April 29, involved a challenge to Virginia’s Freedom of Information Act (FOIA), which provides that “all public records shall be open to inspection and copying by any citizens of the Commonwealth.” But the Virginia law grants no such right to information to those who are not citizens of Virginia. Several other states have similar laws, limiting access to information under public records laws to in-state residents, including Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee.

McBurney had filed a freedom of information request to Virginia’s Division of Child Support Enforcement for documents concerning its processing of a matter in which he had been involved and where there had been a nine-month delay. Also part of the case before the Supreme Court was a freedom of information request by an individual who sought real estate tax records for properties located in Virginia. Both of these requests were denied because the requesters were not citizens of Virginia.

The Supreme Court upheld the Virginia law, concluding that it violated neither the Privileges and Immunities Clause of Article IV nor the dormant commerce clause. Justice Samuel A. Alito Jr. wrote the opinion for a unanimous court, with a short concurring opinion by Justice Clarence Thomas.

The Privileges and Immunities Clause states that “[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States.” The Supreme Court long has held that the Privileges and Immunities Clause applies to prevent a state from discriminating against out-of-staters with regard to civil liberties or their ability to earn a livelihood.

The Supreme Court held that the Virginia law does not violate the Privileges and Immunities Clause because it does not keep anyone from earning a living in Virginia and it does not discriminate with regard to a fundamental right. As to the former, Justice Alito wrote: “The challenged provision of the state FOIA does 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. 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.”

The court also rejected the claim that there was discrimination with regard to a constitutional right. The court noted that the Constitution does not require that a government open its papers to the press and the public or mandate that a state have a public records law. The court said that such laws are of recent vintage and had no analog at common law or through the 19th century. In light of this, the court concluded: “[W]e reject petitioners’ sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right.”

Additionally, the court rejected the claim that the Virginia law violated the dormant commerce clause. The dormant commerce clause is the principle that a state law is unconstitutional if it places an undue burden on interstate commerce. Justice Alito wrote that “Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all.” Justice Thomas wrote a one paragraph concurrence repeating his position that there should not be a dormant commerce clause.

Thus, the court upheld the ability of a state to give its own citizens a right to government records while denying this to out-of-staters. This is troubling on many levels. First, it is a very cramped reading of the Privileges and Immunities Clause. In the past, the Supreme Court has stressed that this provision has the broad goal of keeping a state doing exactly what is involved in this case: creating a right for its residents that it denies to those from other states. The court has declared: “[t]he object of the Privileges and Immunities Clause is to ‘strongly … constitute the citizens of the United States [as] one people,’ by ‘plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.’” Lunding v. New York Tax Appeals Tribunal (1998) (quoting Paul v. Virginia, (1869)).

It makes no sense to limit the Privileges and Immunities Clause to those rights that are protected by the Constitution. If a state denies out-of-staters a constitutional right, that would be struck down without any need to use the Privileges and Immunities Clause. If Virginia had a law that made it a crime for non-Virginia residents to criticize the governor of Virginia, that would violate the Privileges and Immunities Clause, but it would be invalidated as infringing the First Amendment. The Privileges and Immunities Clause is important in exactly the situation of McBurney, where a state creates a right for its own citizens but denies that right to out-of-staters.

Second, the court significantly underestimates the importance of allowing all to have access to a state’s records. The fact that freedom of information laws are only several decades old–Virginia’s was adopted in 1968–is not dispositive, or even relevant, to assessing their importance. Freedom of information laws provide a key way for people to learn of a government’s activities. All affected by a government entity should be able to have access to its information.

The court’s ruling means that journalists from other states who are engaged in investigative reporting, even of corruption or misconduct, would not have access to records. Researchers who could learn a great deal from a state’s records will not have access if they are from other states. In fact, the court’s reasoning would mean that a state or local government could limit access to its public meetings, under its open meetings laws, to in-staters.

Finally, the court offers no justification for allowing a state to discriminate against those from other states in this way. Because the court said that the Privileges and Immunities Clause and the dormant commerce clause did not apply it went no further to assess whether there is any reason for this discrimination. The only conceivable reason is saving money: avoiding the expense of processing requests from out-of-staters. But the number of requests from out-of-staters is likely not so large as to impose a significant cost, and in the context of the dormant commerce clause and the Privileges and Immunities Clause the Supreme Court often has said that a state cannot help its economy at the expense of out-of-staters.

The Supreme Court is correct, of course, that no state is required to have a freedom of information act. But every state does. And the constitutional principles preventing states from discriminating against out-of-staters are clear and broad enough that the court should have held that a state may not discriminate in an area that is so important to government accountability and the free flow of information.

Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

Related articles:

ABAJournal.com: “SCOTUS rejects ‘sweeping’ privileges claim by out-of-staters denied FOIA records in Virginia”

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

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