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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–17
_________________
MARK J. McBURNEY, et al., PETITIONERS
v. NA- THANIEL L. YOUNG, DEPUTY COMMISSIONER AND DIRECTOR,
VIRGINIA DIVISION OF CHILD SUPPORT ENFORCEMENT, et al.
on writ of certiorari to the united states
court of appeals for the fourth circuit
[April 29, 2013]
Justice Alito delivered the opinion of the
Court.
In this case, we must decide whether the
Virginia Freedom of Information Act, Va. Code Ann. §2.2–3700
et seq., violates either the Privileges and Immunities
Clause of Article IV of the Constitution or the dormant Commerce
Clause. The Virginia Freedom of Information Act (FOIA), provides
that “all public records shall be open to inspection and copying by
any citizens of the Commonwealth,” but it grants no such right to
non-Virginians. §2.2–3704(A) (Lexis 2011).
Petitioners, who are citizens of other States,
unsuccessfully sought information under the Act and then brought
this constitutional challenge. We hold, however, that petitioners’
constitutional rights were not violated. By means other than the
state FOIA, Virginia made available to petitioners most of the
information that they sought, and the Commonwealth’s refusal to
furnish the additional information did not abridge any
constitutionally protected privilege or immunity. Nor did Virginia
violate the dor- mant Commerce Clause. The state Freedom of
Informa- tion Act does not regulate commerce in any meaningful
sense, but instead provides a service that is related to state
citizenship. For these reasons, we affirm the decision of the Court
of Appeals rejecting petitioners’ constitutional claims.
I
Petitioners Mark J. McBurney and Roger W.
Hurlbert are citizens of Rhode Island and California respectively.
McBurney and Hurlbert each requested documents under the Virginia
FOIA, but their requests were denied because of their
citizenship.
McBurney is a former resident of Virginia whose
ex-wife is a Virginia citizen. After his ex-wife defaulted on her
child support obligations, McBurney asked the Commonwealth’s
Division of Child Support Enforcement to file a petition for child
support on his behalf. The agency complied, but only after a
9-month delay. McBurney attributes that delay to agency error and
says that it cost him nine months of child support. To ascertain
the reason for the agency’s delay, McBurney filed a Virginia FOIA
request seeking “all emails, notes, files, memos, reports, letters,
policies, [and] opinions” pertaining to his family, along with all
documents “regarding [his] application for child support” and all
documents pertaining to the handling of child support claims like
his. App. in No. 11–1099 (CA4), p. 39A. The agency denied
McBurney’s request on the ground that he was not a Virginia
citizen. McBurney later requested the same documents under
Virginia’s Gov- ernment Data Collection and Dissemination Practices
Act, Va. Code Ann. §2.2–3800
et seq., and through that
re- quest he received most of the information he had sought that
pertained specifically to his own case. He did not, however,
receive any general policy information about how the agency handled
claims like his.
Hurlbert is the sole proprietor of Sage
Information Services, a business that requests real estate tax
records on clients’ behalf from state and local governments across
the United States. In 2008, Hurlbert was hired by a land/title
company to obtain real estate tax records for properties in Henrico
County, Virginia. He filed a Virginia FOIA request for the
documents with the Henrico County Real Estate Assessor’s Office,
but his request was denied because he was not a Virginia
citizen.
Petitioners filed suit under 42
U. S. C. §1983, seeking declaratory and injunctive relief
for violations of the Privileges and Immunities Clause and, in
Hurlbert’s case, the dormant Commerce Clause. The District Court
granted Virginia’s motion for summary judgment,
McBurney v.
Cuccinelli, 780 F. Supp. 2d 439 (ED Va. 2011), and the Court
of Appeals affirmed, 667 F.3d 454 (CA4 2012).
Like Virginia, several other States have enacted
freedom of information laws that are available only to their
citizens. See,
e.g., Ala. Code §36–12–40 (2012 Cum. Supp.);
Ark. Code Ann. §25–19–105 (2011 Supp.); Del. Code Ann., Tit. 29,
§10003 (2012 Supp.); Mo. Rev. Stat. §109.180 (2012); N. H.
Rev. Stat. Ann. §91–A:4 (West 2012); N. J. Stat. Ann. §47:1A–1
(West 2003); Tenn. Code Ann. §10–7–503 (2012). In
Lee v.
Minner, 458 F.3d 194 (2006), the Third Circuit held that
this feature of Delaware’s FOIA violated the Privileges and
Immunities Clause. We granted certiorari to resolve this conflict.
568 U. S. ___ (2012).
II
Under the Privileges and Immunities Clause,
“[t]he Citizens of each State [are] entitled to all Privileges and
Immunities of Citizens in the several States.” U. S. Const.,
Art. IV, §2, cl. 1. We have said that “[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,
522 U.S.
287, 296 (1998) (quoting
Paul v.
Virginia, 8
Wall. 168, 180 (1869)). This does not mean, we have cautioned, that
“state citizenship or residency may never be used by a State to
distinguish among persons.”
Baldwin v.
Fish and Game
Comm’n of Mont.,
436 U.S.
371, 383 (1978). “Nor must a State always apply all its laws or
all its services equally to anyone, resident or nonresident, who
may request it so to do.”
Ibid. Rather, we have long held
that the Privileges and Immunities Clause protects only those
privileges and immunities that are “fundamental.” See,
e.g.,
id., at 382, 388.
Petitioners allege that Virginia’s citizens-only
FOIA provision violates four different “fundamental” privileges or
immunities: the opportunity to pursue a common calling, the ability
to own and transfer property, access to the Virginia courts, and
access to public information. The first three items on that list,
however, are not abridged by the Virginia FOIA, and the
fourth—framed broadly—is not protected by the Privileges and
Immunities Clause.
A
Hurlbert argues that Virginia’s citizens-only
FOIA pro- vision abridges his ability to earn a living in his
chosen profession, namely, obtaining property records from state
and local governments on behalf of clients. He is correct that the
Privileges and Immunities Clause protects the right of citizens to
“ply their trade, practice their occupation, or pursue a common
calling.”
Hicklin v.
Orbeck,
437
U.S. 518, 524 (1978);
Supreme Court of N. H. v.
Piper,
470 U.S.
274, 280 (1985) (“ ‘[O]ne of the privileges which the
Clause guarantees to citizens of State A is that of doing business
in State B on terms of substantial equality with the citizens of
that State’ ”). But the Virginia FOIA does not abridge
Hulbert’s ability to engage in a common calling in the sense
prohibited by the Privileges and Immunities Clause. Rather, the
Court has struck laws down as violating the privilege of pursuing a
common calling only when those laws were enacted for the
protectionist purpose of burdening out-of-state citizens. See,
e.g.,
Hicklin,
supra, (striking down as a
violation of noncitizens’ privileges and immunities an “Alaska
Hire” statute containing a resident hiring preference for all
employment related to the development of the State’s oil and gas
resources);
Toomer v.
Witsell,
334 U.S.
385, 395, 397 (1948) (striking down a South Carolina statute
imposing a $2,500 license fee on out-of-state shrimping boats and
only a $25 fee on in-state shrimping boats where petitioners
alleged that the “purpose and effect of this statute . . . [was]
not to conserve shrimp, but to exclude non-residents and thereby
create a commercial monopoly for South Carolina residents,” and the
“record cas[t] some doubt on” the State’s counterassertion that the
statute’s “obvious purpose was to conserve its shrimp supply”);
United Building & Constr. Trades Council of Camden Cty.
v.
Mayor and Council of Camden,
465
U.S. 208 (1984) (New Jersey municipal ordinance requiring that
at least 40% of employees of contractors and subcontractors working
on city construction projects be city residents facially burdened
out-of-state citizens’ ability to pursue a common calling). In each
case, the clear aim of the statute at issue was to advantage
in-state workers and commercial interests at the expense of their
out-of-state counterparts.
Virginia’s FOIA differs sharply from those
statutes. By its own terms, Virginia’s FOIA was enacted to
“ensur[e] the people of the Commonwealth ready access to public
records in the custody of a public body or its officers and
employees, and free entry to meetings of public bodies wherein the
business of the people is being conducted.” Va. Code Ann.
§2.2–3700(B) (Lexis 2011). 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. Cf.
Hillside Dairy Inc. v.
Lyons,
539 U.S.
59, 67 (2003) (piercing a professedly nondiscriminatory statute
to find economic protectionism). Rather, it seems clear that the
distinction that the statute makes between citizens and noncitizens
has a distinctly nonprotectionist aim. The state FOIA essentially
represents a mechanism by which those who ultimately hold sovereign
power (
i.e., the citizens of the Commonwealth) may obtain an
accounting from the public officials to whom they delegate the
exercise of that power. See Va. Const., Art. I, §2; Va. Code Ann.
§2.2–3700(B). In addition, the provision limiting the use of the
state FOIA to Virginia citizens recognizes that Virginia taxpayers
foot the bill for the fixed costs underlying recordkeeping in the
Commonwealth. Tr. of Oral Arg. 53–54. 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 in-
formation 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.
B
Hurlbert next alleges that the challenged
provision of the Virginia FOIA abridges the right to own and
transfer property in the Commonwealth. Like the right to pursue a
common calling, the right to “take, hold and dispose of property,
either real or personal,” has long been seen as one of the
privileges of citizenship. See
Corfield v.
Coryell, 6
F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825); see also
Paul,
supra, at 180 (listing “the acquisition and
enjoyment of property” among the privileges of citizenship). Thus,
if a State prevented out-of-state citizens from accessing
records—like title documents and mortgage records—that are
necessary to the transfer of property, the State might well run
afoul of the Privileges and Immunities Clause. Cf.
State v.
Grimes, 29 Nev. 50, 85, 84 P. 1061, 1073 (1906) (“
Caveat
emptor being the rule with us in the absence of a special
agreement, it is just and essential to the protection of persons
intending to purchase or take incumbrances that they be allowed the
right of inspection”);
Jackson ex dem. Center v.
Campbell, 19 Johns. 281, 283 (N. Y. 1822) (the “plain
intention” of the State’s property records system was “to give
notice, through the medium of the county records, to persons about
to purchase”).
Virginia, however, does not prevent citizens of
other States from obtaining such documents. Under Virginia law,
“any records and papers of every circuit court that are maintained
by the clerk of the circuit court shall be open to inspection by
any person and the clerk shall, when requested, furnish copies
thereof.” Va. Code Ann. §17.1–208 (Lexis 2010). Such records and
papers include records of property transfers, like title documents,
§55–106 (Lexis 2012); notices of federal tax liens and other
federal liens against property, §55–142.1; notices of state tax
liens against property, §58.1–314 (Lexis 2009) (state taxes
generally), §58.1–908 (estate tax liens), §58.1–1805 (state taxes
generally), §58.1–2021(A) (liens filed by agencies other than the
Tax Commission); and notice of mortgages and other encumbrances,
§8.01–241 (Lexis Supp. 2012).
A similar flaw undermines Hurlbert’s claim that
Vir- ginia violates the Privileges and Immunities Clause by pre-
venting citizens of other States from accessing real estate tax
assessment records. It is true that those records, while available
to Virginia citizens under the state FOIA, are not required by
statute to be made available to noncitizens. See
Associated Tax
Service, Inc. v.
Fitzpatrick, 236 Va. 181, 183, 187,
372 S.E.2d 625, 627, 629 (1988).[
1] But in fact Virginia and its subdivisions generally
make even these less essential records readily available to all.
These records are considered nonconfidential under Virginia law
and, accordingly, they may be posted online. §58.1–3122.2 (Lexis
2009). Henrico County, from which Hurlbert sought real estate tax
assessments, follows this practice,[
2] as does almost every other county in the Commonwealth.
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.
C
McBurney alleges that Virginia’s citizens-only
FOIA provision impermissibly burdens his “access to public
proceedings.” Brief for Petitioners 42. McBurney is correct that
the Privileges and Immunities Clause “secures citizens of one State
the right to resort to the courts of another, equally with the
citizens of the latter State.”
Missouri Pacific R. Co.
v.
Clarendon Boat Oar Co.,
257 U.S.
533, 535 (1922). But petitioners do not suggest that the
Virginia FOIA slams the courthouse door on noncitizens; rather, the
most they claim is that the law creates “[a]n information asymmetry
between adversaries based solely on state citizenship.” Brief for
Petitioners 42.
The Privileges and Immunities Clause does not
require States to erase any distinction between citizens and
non-citizens that might conceivably give state citizens some
detectable litigation advantage. Rather, the Court has made clear
that “the constitutional requirement is sat- isfied if the
non-resident is given access to the courts of the State upon terms
which in themselves are reasonable and adequate for the enforcing
of any rights he may have, even though they may not be technically
and precisely the same in extent as those accorded to resident
citizens.”
Canadian Northern R. Co. v.
Eggen,
252 U.S.
553, 562 (1920).
The challenged provision of the Virginia FOIA
clearly does not deprive noncitizens of “reasonable and adequate”
access to the Commonwealth’s courts. Virginia’s rules of civil
procedure provide for both discovery, Va. Sup. Ct. Rule 4:1 (2012),
and subpoenas
duces tecum, Rule 4:9. There is no reason to
think that those mechanisms are insufficient to provide noncitizens
with any relevant, nonprivileged documents needed in
litigation.
Moreover, Virginia law gives citizens and
noncitizens alike access to judicial records. Va. Code Ann.
§17.1–208; see also
Shenandoah Publishing House, Inc. v.
Fanning, 235 Va. 253, 258,
368 S.E.2d 253, 256 (1988). And if Virginia has in its
possession information about any person, whether a citizen of the
Commonwealth or of another State, that person has the right under
the Government Data Collection and Dissemination Practices Act to
inspect that information. §2.2–3806(A)(3) (Lexis 2011).
McBurney’s own case is illustrative. When his
FOIA request was denied, McBurney was told that he should request
the materials he sought pursuant to the Government Data Collection
and Dissemination Practices Act. Upon placing a request under that
Act, he ultimately received much of what he sought. Accordingly,
Virginia’s citizens-only FOIA provision does not impermissibly
burden noncitizens’ ability to access the Commonwealth’s
courts.
D
Finally, we 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.
This Court has repeatedly made clear that there
is no constitutional right to obtain all the information provided
by FOIA laws. See
Houchins v.
KQED, Inc.,
438 U.S.
1, 14 (1978) (plurality opinion) (“ ‘The Constitution
itself is [not] a Freedom of Information Act’ ”); see also
Los Angeles Police Dept. v.
United Reporting Publishing
Corp.,
528 U.S.
32, 40 (1999) (the Government could decide “not to give out
[this] information at all”);
Sorrell v.
IMS Health
Inc., 564 U. S. ___, ___ (2011) (Breyer, J., dissenting)
(slip op., at 8) (“[T]his Court has
never found that the
First Amendment prohibits the government from restricting
the use of information gathered pursuant to a regulatory
mandate”).
It certainly cannot be said that such a broad
right has “at all times, been enjoyed by the citizens of the
several states which compose this Union, from the time of their
becoming free, independent, and sovereign.”
Corfield, 6
F. Cas., at 551. No such right was recognized at common law.
See H. Cross, The People’s Right to Know 25 (1953) (“[T]he courts
declared the primary rule that there was no general common law
right in all persons (as citizens, taxpayers, electors or merely as
persons) to inspect public records or documents”). Most
founding-era English cases provided that only those persons who had
a personal interest in non-judicial records were permitted to
access them. See,
e.g., King v.
Shelley, 3 T. R. 141,
142, 100 Eng. Rep. 498, 499 (K. B. 1789) (Buller, J.) (“[O]ne man
has no right to look into another’s title deeds and records, when
he . . . has no interest in the deeds or rolls himself”);
King v.
Justices of Staffordshire, 6 Ad. & E. 84,
101, 112 Eng. Rep. 33, 39 (K. B. 1837) (“The utmost . . . that can
be said on the ground of interest, is that the applicants have a
rational curiosity to gratify by this inspection, or that they may
thereby ascertain facts useful to them in advancing some ulterior
measures in contemplation as to regulating county expenditure; but
this is merely an interest in obtaining information on the general
subject, and would furnish an equally good reason for permitting
inspection of the records of any other county: there is not that
direct and tangible interest, which is necessary to bring them
within the rule on which the Court acts in granting inspection of
public documents”).
Nineteenth-century American cases, while less
uniform, certainly do not support the proposition that a
broad-based right to access public information was widely
recognized in the early Republic. See,
e.g., Cormack v.
Wolcott, 37 Kan. 391, 394, 15 P. 245, 246 (1887) (denying
mandamus to plaintiff seeking to compile abstracts of title
records; “At common law, parties had no vested rights in the
examination of a record of title, or other public records, save by
some interest in the land or subject of record”);
Brewer v.
Watson, 71 Ala. 299, 305 (1882) (“The individual demanding
access to, and inspection of public writings must not only have an
interest in the matters to which they relate, a direct, tangible
interest, but the inspection must be sought for some specific and
legitimate purpose. The gratification of mere curiosity, or motives
merely speculative will not entitle him to demand an examination of
such writings”); Nadel, What are “Records” of Agency Which Must Be
Made Available Under State Freedom of Information Act, 27 A. L. R.
4th 680, 687, §2[b] (1984) (“[A]t common law, a person requesting
inspection of a public record was required to show an interest
therein which would enable him to maintain or defend an action for
which the document or record sought could furnish evidence or
necessary information”).
Nor is such a sweeping right “basic to the
maintenance or well-being of the Union.”
Baldwin, 436
U. S., at 388. FOIA laws are of relatively recent vintage. The
federal FOIA was enacted in 1966, §1, 80Stat. 383, and Virginia’s
counterpart was adopted two years later, 1968 Va. Acts ch. 479, p.
690. 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.
III
In addition to his Privileges and Immunities
Clause claim, Hurlbert contends that Virginia’s citizens-only FOIA
provision violates the dormant Commerce Clause. The Commerce Clause
empowers Congress “[t]o regulate Commerce . . . among the several
States.” Art. I, §8, cl. 3. The Commerce Clause does not
expressly impose any constraints on “the several States,” and
several Members of the Court have expressed the view that it does
not do so. See
General Motors Corp. v.
Tracy,
519 U.S.
278, 312 (1997) (Scalia, J., concurring) (“[T]he so-called
‘negative’ Commerce Clause is an unjustified judicial intervention,
not to be expanded beyond its existing domain”);
United Haulers
Assn.
Inc. v.
Oneida-Herkimer Solid Waste Management
Authority,
550 U.S.
330, 349 (2007) (Thomas, J., concurring in judgment) (“The
negative Commerce Clause has no basis in the Constitution and has
proved unwork- able in practice”). Nonetheless, the Court has long
inferred that the Commerce Clause itself imposes certain implicit
limitations on state power. See,
e.g., Cooley v.
Board of
Wardens of Port of Philadelphia ex rel. Soc. for Relief
of Distressed Pilots, 12 How. 299, 318–319 (1852); cf.
Gib-
bons v.
Ogden, 9 Wheat. 1, 209 (1824) (Marshall,
C. J.) (dictum).
Our dormant Commerce Clause jurisprudence
“significantly limits the ability of States and localities to
regulate or otherwise burden the flow of interstate commerce.”
Maine v.
Taylor,
477 U.S.
131, 151 (1986). It is driven by a concern about “economic
protectionism—that is, regulatory measures designed to benefit
in-state economic interests by burdening out-of-state competitors.”
New Energy Co. of Ind. v.
Limbach,
486 U.S.
269, 273–274 (1988); see also
Philadelphia v.
New
Jersey,
437 U.S.
617, 624 (1978) (“The crucial inquiry . . . must be directed to
determining whether [the challenged statute] is basically a
protectionist measure, or whether it can fairly be viewed as a law
directed to legitimate local concerns, with effects upon interstate
commerce that are only incidental”).
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. The
“common thread” among those cases in which the Court has found a
dormant Commerce Clause violation is that “the State interfered
with the natural functioning of the interstate market either
through prohibition or through burdensome regulation.”
Hughes v.
Alexandria Scrap Corp.,
426 U.S.
794, 806 (1976). Here, by contrast, Virginia neither prohibits
access to an interstate market nor imposes burdensome regulation on
that market. Rather, it merely creates and provides to its own
citizens copies—which would not otherwise exist—of state records.
As discussed above, the express purpose of Virginia’s FOIA law is
to “ensur[e] the people of the Commonwealth ready access to public
records in the custody of a public body or its officers and
employees, and free entry to meetings of public bodies wherein the
business of the people is being conducted.” Va. Code Ann.
§2.2–3700(B). This case is thus most properly brought under the
Privileges and Immunities Clause: It quite literally poses the
question whether Virginia can deny out-of-state citizens a benefit
that it has conferred on its own citizens. Cf
. Missouri Pacific
R. Co., 257 U. S., at 535 (analyzing whether the
privilege of access to a State’s courts must be made available to
out-of-state citizens equally with the citizens of the relevant
State). Because it does not pose the question of the
constitutionality of a state law that interferes with an interstate
market through prohibition or burdensome regulations, this case is
not governed by the dormant Commerce Clause.
Even shoehorned into our dormant Commerce Clause
framework, however, Hurlbert’s claim would fail. Insofar as there
is a “market” for public documents in Virginia, it is a market for
a product that the Commonwealth has created and of which the
Commonwealth is the sole manufacturer. We have held that a State
does not violate the dormant Commerce Clause when, having created a
market through a state program, it “limits benefits generated by
[that] state program to those who fund the state treasury and whom
the State was created to serve.”
Reeves, Inc. v.
Stake,
447 U.S.
429, 442 (1980). “Such policies, while perhaps ‘protectionist’
in a loose sense, reflect the essential and patently
unobjectionable purpose of state government—to serve the citizens
of the State.”
Ibid.; cf
. Department of Revenue of
Ky. v.
Davis,
553 U.S.
328, 341 (2008) (“[A] government function is not susceptible to
standard dormant Commerce Clause scrutiny owing to its likely
motivation by legitimate objectives distinct from the simple
economic protectionism the Clause abhors”). For these reasons,
Virginia’s citizens-only FOIA provision does not violate the
dormant Commerce Clause.
* * *
Because Virginia’s citizens-only FOIA
provision neither abridges any of petitioners’ fundamental
privileges and immunities nor impermissibly regulates commerce,
petitioners’ constitutional claims fail. The judgment below is
affirmed.
It is so ordered.
