McBurney v. Young

133 S. Ct. 1709 (2013)


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 grants no such right to citizens of other states.  One petitioner, McBurney, was a former resident of Virginia who sought information under the state FOIA related to the delay of a state agency in filing a petition for child support on his behalf.  His request was denied on the ground that he was not a Virginia citizen, but he was able to acquire most of the information he sought under a different Virginia statute.  The other petitioner, Hurlbert, who owns a business that requests real estate tax records on clients’ behalf, filed a FOIA request for such records, which also was denied because he was not a Virginia citizen.

Procedural History

The federal district court granted Virginia’s motion for summary judgment and the Fourth Circuit Court of Appeals affirmed.


Whether the Virginia FOIA violates the Privileges Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause.

Rule / Holding

No.  Affirmed.  The Virginia FOIA neither deprived petitioners of a protected privilege or immunity nor regulated commerce in any meaningful sense.


The Privileges and Immunities Clause protects only those privileges and immunities deemed “fundamental.”  While the P&I Clause protects the right of citizens to “engage in a common calling,” the challenged state law must have been enacted for the protectionist purpose of burdening out-of-state citizens.  Virginia’s FOIA, however, was enacted to ensure Virginia citizens ready access to public information, not to provide Virginia citizens a competitive economic advantage.  The law’s incidental effect on the ability of an out-of-state business owner to make a profit does not constitute a violation of the P&I clause.

Nor did the FOIA abridge Hurlbert’s right to own and transfer property in Virginia.  Documents necessary to the transfer of property are accessible to out-of-state citizens under Virginia law.  While real estate tax assessment records are not required by statute to be made available to noncitizens, Virginia and its subdivisions generally make these less essential, nonconfidential records available to everyone, and the county from which Hurlbert sought such records posted them online.

The P&I Clause also grants citizens from out of state access to a state’s courts “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.”  McBurney, like Virginia citizens, could take advantage of the state’s rules of civil procedure to obtain documents needed in litigation, and he was able to obtain most of the information he sought under another Virginia statute.  Therefore, his ability to access Virginia courts was not impermissibly burdened.

Moreover, the P&I Clause does not create a right for out-of-state citizens to access public information on equal terms with in-state citizens.  There is no constitutional right to obtain all the information provided by FOIA laws, nor has such a broad right been recognized at common law or been traditionally enjoyed by citizens since the early days of the republic.  Such a sweeping right is not “basic to the maintenance or well-being of the Union.”

In determining whether a challenged law violates the dormant Commerce Clause, the crucial inquiry is whether the law 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 does not interfere with interstate commerce through prohibition or burdensome regulations, but “merely provides a service to local citizens that would not otherwise be available at all” with the purpose of granting them ready access to public information.  Even if it could be said there is a market for public documents in Virginia, the state created that market and is the sole manufacturer of the product.  It may properly limit the benefits of that state program to Virginia taxpayers.

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