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SUPREME COURT OF THE UNITED STATES
MARK J. McBURNEY, et al., PETITIONERS
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
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’
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
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
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,
, 780 F. Supp. 2d 439 (ED Va.
2011), and the Court of Appeals affirmed, 667 F.3d 454 (CA4
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
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).
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
New York Tax Appeals Tribunal
, 522 U.S.
, 296 (1998) (quoting Paul
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.
, 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
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
, 437 U.S.
, 524 (1978); Supreme Court of N. H.
, 470 U.S.
, 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.
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
, 334 U.S.
, 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
(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.
, 539 U.S.
, 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
, 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.
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
, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825);
see also Paul
, 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.
, 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
, 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
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.
, 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
] 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.
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.
Boat Oar Co.
, 257 U.S.
, 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.
, 252 U.S.
, 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
, 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,
, 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
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
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.
, 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.
, 40 (1999) (the Government could decide “not to give
out [this] information at all”); Sorrell
, 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
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
, 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
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
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
, 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”);
, 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
Nor is such a sweeping right “basic to the
maintenance or well-being of the Union.” Baldwin
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.
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
, 519 U.S.
, 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
Oneida-Herkimer Solid Waste Management Authority
, 550 U.S.
, 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,
v. Board of Wardens of Port of Philadelphia
ex rel. Soc. for Relief of Distressed Pilots
How. 299, 318–319 (1852); cf. Gib- bons
, 9 Wheat. 1, 209 (1824) (Marshall, C. J.)
Our dormant Commerce Clause jurisprudence
“significantly limits the ability of States and localities to
regulate or otherwise burden the flow of interstate
, 477 U.S.
, 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.
, 486 U.S.
, 273–274 (1988); see also Philadelphia
, 437 U.S.
, 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.”
v. Alexandria Scrap Corp.
, 426 U.S.
, 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
, 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.”
, 447 U.S.
, 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.
Department of Revenue of Ky.
, 553 U.S.
, 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
It is so ordered.