Supreme Court: States can prohibit non-residents from using public records laws to gather information

Aaron Mackey | Freedom of Information | News | April 29, 2013

States do not violate the U.S. Constitution when their public records laws prevent out-of-state residents from accessing government records, a unanimous Supreme Court ruled on Monday.

The court in McBurney v. Young dismissed a challenge to Virginia’s Freedom of Information Act brought by two plaintiffs who argued in part that the ability of individuals to access state public records, regardless of whether they are citizens of that particular state, is a fundamental right protected by the Privileges and Immunities Clause of the Constitution.

“We cannot agree that the Privileges and Immunities Clause covers this broad right,” Justice Samuel Alito wrote for the Court. “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”

Although the Supreme Court’s decision was limited to affirming Virginia’s citizens-only restriction in its public records law, the impact of the ruling extends to a handful of other states across the country that similarly restrict public records access to in-state residents, including Alabama, Arkansas, New Hampshire, New Jersey and Tennessee.

Key to the high court’s ruling was its belief that the two out-of-state residents were able to access most, though not all, of the information they were seeking through other means. For example, several Virginia statutes allow anyone, regardless of where they reside, to access property records, judicial records, or state records about themselves.

Deepak Gupta, the attorney for plaintiffs Mark J. McBurney and Roger W. Hurlbert, said he was stunned and disappointed by the ruling.

“From the tone of the oral argument it seemed like a much closer and much more complicated case,” he said in an interview. “I am mystified that it’s a unanimous opinion.”

The case originated when McBurney and Hurlbert made two different records requests under Virginia’s FOIA. McBurney, a former Virginia resident who resided in Rhode Island at the time of his request, sought records from Virginia’s Division of Child Support Enforcement related to its collection of child support payments from his ex-wife. Hurlbert, a California businessman, sought real estate tax records from a Virginia county as part of his data collection business.

When Virginia denied both requests on the grounds that neither McBurney nor Hurlbert were Virginia citizens, the pair filed suit arguing that the restriction violated the Privileges and Immunities and Dormant Commerce Clauses of the U.S. Constitution. Generally, the clauses have been interpreted to prevent states from discriminating against out-of-state residents conducting business in their state.

Both a Virginia federal district court and the U.S. Court of Appeals in Richmond, Va. (4th Cir.) ruled that Virginia’s citizenship requirement was constitutional. At the same time, the U.S. Court of Appeals in Philadelphia (3rd Cir.) had previously struck down the citizenship requirement in Delaware’s public records law on the ground that it violated the Privileges and Immunities Clause.

Gupta said that his clients will now turn to the Virginia legislature and ask it to repeal the citizenship requirement in the public records law.

A bill repealing Virginia’s citizenship requirement was introduced during the legislative session this year and was sent to a subcommittee for further study, said Megan Rhyne, executive director of the Virginia Coalition for Open Government.

Any change in Virginia’s law, however, would not be possible until 2014 at the earliest because lawmakers already adjourned their 2013 legislative session.

Rhyne said that it is too early to tell whether lawmakers will move to repeal the citizens-only provision in the wake of the Supreme Court’s ruling but added that it was a good sign that lawmakers wanted to study the issue even before the court handed down its ruling in McBurney.

Despite the setback for his clients, Gupta said he remains optimistic that Virginia will drop the restriction on out-of-state residents because such laws are out of step with the interconnected nature of the modern United States.

“These laws are hard to justify and most states have abandoned citizens-only policies because they are out of step with the modern information economy,” Gupta said.

The Reporters Committee, along with 53 other media organizations, filed a friend-of-the-court brief in support of McBurney and Hurlbert at the Supreme Court.

Related Reporters Committee resources:

· Open Government Guide

· News: Supreme Court debates if access to public information is a fundamental right