U.S. Supreme Court

May Va. deny records to noncitizens? Scalia suggests state can bar outsiders from 'mucking around'

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File photo of U.S. Supreme Court Justice Antonin
Scalia courtesy of ABA Media Services.

Justice Antonin Scalia rose to Virginia’s defense on Wednesday when the U.S. Supreme Court considered whether Virginia can bar out-of-state residents from accessing state records through its Freedom of Information Act.

One of the plaintiffs is California citizen Roger Hurlbert, owner of a company that searches property assessment records for its clients. The second plaintiff is Mark McBurney, a former state resident who sought records related to his child support application. At issue is whether the Virginia ban on out-of-staters’ access violates the privileges and immunities clause and the commerce clause.

Scalia appeared to agree with Virginia’s argument that its law was intended to help state residents monitor how their government is working, according to stories by SCOTUSblog, the New York Times and the Washington Post.

“They don’t want outlanders mucking around in Virginia government,” Scalia said. “It’s perfectly OK for good old Virginians to do that, but they don’t want outlanders to do it. Why—why is that unreasonable?”

Justice Elena Kagan suggested there was another reason for Virginia’s law: to contribute to the free flow of information. She noted that “these statutes have been taken over, to a large extent, across the country by economic enterprises doing economic things.”

The lawyer for Virginia, Solicitor General Earle Duncan Getchell Jr., said he was “agnostic” about any commercial impact, according to the SCOTUSblog account. “There is no regulation of commercial; this is a governmental statute,” he said.

Virginia is apparently one of only three states that discriminate against noncitizens seeking access to FOIA records, the Times says. The Virginia law does make exceptions for news media that publish or broadcast in the state.

Prior coverage:

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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