Supreme Court Upholds Virginia FOIA's Exclusion of Non-Virginians

by Matt Clarke

On April 29, 2014, the Supreme Court of the United States held that the provision of the Virginia Freedom of Information Act (FOIA) providing that "all public records shall be open to inspection and copying by any citizens of the Commonwealth,” Va. Code Ann. §2.2-3704(A)—but not granting that right to non-Virginians—did not violate the United States Constitution.

Mark J. McBurney and Roger W. Hurlbert are citizens of Rhode Island and California, respectively. Each filed a request for information to Virginia agencies under the state’s FOIA. The agencies denied the requests because the men were not citizens of Virginia and therefore the FOIA did not apply to them. Both men filed civil rights actions in federal court, pursuant to 42 U.S.C. §1983, alleging that the exclusion of non-citizens from Virginia’s FOIA violated the Privileges and Immunities Clause of Article IV of the U.S. Constitution. Hurlbert alleged it also violated the dormant Commerce Clause.

The district court granted Virginia's motion for summary judgment and the Fourth Circuit affirmed. The men then filed petitions for a writ of certiorari to the Supreme Court.

The Supreme Court granted certiorari and filed an opinion affirming the judgment below. In doing so, it noted that Virginia had already provided the bulk of the requested information under Virginia's Government Data Collection and Dissemination Practices Act, Va. Code Ann. §2.2-3800.

The unanimous Supreme Court held that the Privileges and Immunities Clause protected only fundamental privileges and immunities and the right of access to government information was not a fundamental privilege or immunity of citizenship. It also held that the FOIA provision was not intended to regulate or prevent interstate commerce and did not prevent interstate ownership of property. Thus, it did not violate either constitutional clause. Therefore, the Supreme Court upheld the FOIA provision and implicitly upheld similar statutes in five other states.

Open government advocates called the decision "a stunning blow," raising questions about whether the justices held obsolete views about information access technologies and concepts.

"It surprised me that no one understood...information as a vital national resource," said Richard Varn, executive director of The Coalition for Sensible Public Records Access, noting that the court was operating under an "antiquated notion that information citizenship could be local." See: McBurney v. Young, 133 S. Ct. 1709 (U.S. 2013).

Additional source: www.timesdispatch.com

Subscribe today

Already a subscriber? Login

Related legal case