McBurney v. Young
569 U.S. ___ (2013)

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Justia Opinion Summary
Virginia’s Freedom of Information Act grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Citizens of other states, including the owner of a business that obtains real estate tax records on behalf of clients, filed requests under the Act. After each was denied, they filed a 42 U. S. C. 1983 suit, alleging violations of the Privileges and Immunities Clause and the dormant Commerce Clause. The district court granted Virginia summary judgment. The Fourth Circuit and the Supreme Court affirmed. The Constitution does not guarantee the existence of FOIA laws. The Privileges and Immunities Clause protects only privileges and immunities that are “fundamental.” The Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling,” only with respect to laws enacted for the protectionist purpose of burdening out-of-state citizens. Virginia’s FOIA exists to allow Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. The distinction between citizens and noncitizens recognizes that citizens pay fixed costs underlying record-keeping. The law does not prevent noncitizens from obtaining documents necessary to the transfer of property or deprive noncitizens of “reasonable and adequate” access to Commonwealth courts. It gives noncitizens access to non-privileged litigation documents, to judicial records, and to records pertaining directly to them. Virginia’s FOIA does not violate the dormant Commerce Clause. It neither prohibits access to an interstate market nor imposes burdensome regulation on that market; if there is a “market” for Virginia’s public documents, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

McBURNEY et al. v. YOUNG, DEPUTY COMMISSIONER AND DIRECTOR, VIRGINIA DIVISION OF CHILD SUPPORT ENFORCEMENT, et al.

certiorari to the united states court of appeals for the fourth circuit

No. 12–17. Argued February 20, 2013—Decided April 29, 2013

Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Petitioners McBurney and Hurlbert, citizens of States other than Virginia, filed records requests under the Act. After each petitioner’s request was denied, they filed a 42 U. S. C. §1983 suit 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, and the Fourth Circuit affirmed.

Held:

     1. Virginia’s FOIA does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are “fundamental.” See Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371 . Pp. 3–12.

          (a) Hurlbert alleges that Virginia’s FOIA abridges his fundamental right to earn a living in his chosen profession—obtaining property records on behalf of his clients. While 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 , the Court has struck down laws as violating this privilege only when they were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Toomer v. Witsell, 334 U. S. 385 . The Virginia FOIA’s citizen/noncitizen distinction has a nonprotectionist aim. Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Any effect the Act has of preventing citizens of other States from making a profit by trading on information contained in state records is incidental. Pp. 4–6.

          (b) Hurlbert also alleges that Virginia’s FOIA abridges the right to own and transfer property in the Commonwealth. The right to take, hold, and dispose of property has long been seen as one of the privileges of citizenship. See, e.g., Paul v. Virginia, 8 Wall. 168, 180. However, Virginia law does not prevent noncitizens from obtaining documents necessary to the transfer of property. Records—like title and mortgage documents—maintained by the clerk of each circuit court are available to inspection by any person. Real estate tax assessment records are considered nonconfidential and are often posted online, a practice followed by the county from which Hurlbert sought records. Requiring a noncitizen to obtain records through the clerk’s office or on the Internet, instead of through a burdensome FOIA process, cannot be said to impose a significant burden on the ability to own or transfer property in Virginia. Pp. 6–8.

          (c) McBurney alleges that Virginia’s FOIA impermissibly burdens his access to public proceedings. 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 , but that “requirement is satisfied if the nonresident is given access . . . upon terms which . . . are reasonable and adequate for the enforcing of any rights he may have, even though they may not be . . . the same in extent as those accorded to resident citizens,” Canadian Northern R. Co. v. Eggen, 252 U. S. 553 . Virginia’s FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to Commonwealth courts. Virginia’s court rules provide noncitizens access to nonpriviledged documents needed in litigation, and Virginia law gives citizens and noncitizens alike access to judicial records and to records pertaining directly to them. For example, McBurney utilized Virginia’s Government Data Collection and Dissemination Practices Act to receive much of the information he had sought in his FOIA request. Pp. 8–10.

          (d) Petitioners’ sweeping claim that the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with Commonwealth citizens is rejected because the right to access public information is not a “fundamental” privilege or immunity of citizenship. The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws. See, e.g., Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 . Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right “basic to the maintenance or well-being of the Union.” Baldwin, supra, at 388. Pp. 10–12.

     2. Virginia’s FOIA does not violate the dormant Commerce Clause. The “common thread” among this Court’s dormant Commerce Clause cases is that “the State interfered with the natural functioning of the interstate market either through prohibition or thorough burdensome regulation.” Hughes v. Alexandria Scrap Corp., 426 U. S. 794 . Virginia’s FOIA, by contrast, neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Accordingly, this is not properly viewed as a dormant Commerce Clause case. Even shoehorned into the Court’s 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. 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 . Pp. 12–14.

667 F. 3d 454, affirmed.

     Alito, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

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