Supreme Court Hears Argument On States' Ability To Exclude Public Records Access For Non-Citizens

On February 20, 2013, the U.S. Supreme Court heard oral argument in McBurney v. Young, No. 12-17, a case with potentially major implications for businesses that use state freedom of information acts (FOIAs) to obtain competitive intelligence, as well as data sellers and aggregators, and media outlets. The case arises from the Fourth Circuit Court of Appeals, which affirmed the Eastern District of Virginia's grant of summary judgment upholding the constitutionality of a restriction in the Virginia Freedom of Information Act (VFOIA) that permits only citizens of Virginia to submit requests for public records under that statute. The petitioners claim that the citizens-only restriction violates the Privileges and Immunities Clause of the U.S. Constitution, as well as the dormant Commerce Clause. While all 50 states have FOIAs, only a few, including Tennessee and Arkansas, continue to enforce "citizens-only" limitations like Virginia's. Upholding that restriction could spur other states seeking to reduce the volume of FOIA requests to enact similar restrictions, creating additional protections for confidential information of businesses in the hands of state and local governments.

At oral argument, Justices across the spectrum pressed petitioners, questioning whether the Constitution really guaranteed non-Virginians access to records paid for by Virginians and concerning the operation of Virginia government bodies run by people elected by Virginians. However, many Justices also were skeptical of the repeated claim by counsel for Virginia that there was no evidence of a commercial impact from the VFOIA's citizens-only restriction. In the end, the outcome may depend on how many Justices are persuaded that there are constitutional implications to Justice Kagan's observation that government accountability may have been the original motivation for states to adopt their FOIAs, but those statutes now "have been taken over, to a large extent, across the country by economic enterprises doing economic things."

The Case to Date

When Mark McBurney and Roger Hurlbert, who are Rhode Island and California citizens respectively, submitted VFOIA requests for public records, their requests were denied for the sole reason that they were not Virginia citizens. Mr. McBurney and Mr. Hurlbert filed suit, claiming that the VFOIA's citizenship restriction violated the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution. They relied...