The Virginia Freedom of Information Act (“VFOIA”) states that “all public records shall be open to inspection and copying by any citizen of the Commonwealth.” Va.Code Ann. § 2.2-3704(A). Petitioners Mark McBurney and Roger Hurlbert made VFOIA requests and were denied because they are not citizens of Virginia. After being denied, Petitioners filed a complaint against the respondents, the agencies which denied their VFOIA requests, with the District Court for the Eastern District of Virginia. Petitioners argued that the VFOIA’s citizens-only provision violated their rights under the Privileges and Immunities Clause, and Hurlbert’s rights under the dormant Commerce Clause. The District Court granted summary judgment for the agencies, which was affirmed by the United States Court of Appeals for the Fourth Circuit. Petitioners now appeal, arguing that Virginia’s citizens-only restriction violates the dormant Commerce Clause because it discriminates against out-of state economic interests both facially and in effect, and also violates the Privileges and Immunities Clause because it creates an inequality in access to information. The Supreme Court’s decision in this case will impact whether a state is required allow all United States citizens to access their public records.
Whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state my preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens?
Whether a state’s refusal to provide public records to an individual who is not a citizen of their state is a violation of the Privileges and Immunities Clause and the dormant Commerce Clause?
The purpose of the Virginia Freedom of Information Act (“VFOIA”) is to provide people with ready access to public records and free entry to meetings of public bodies. McBurney v. Young, 667 F.3d 454, 459 (4th Cir. 2012).One relevant section states, “except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizen of the Commonwealth. . . .” Va.Code Ann. § 2.2-3704(A).
This case was originally brought by Plaintiffs Mark McBurney and Roger Hurlbert, with separate yet similar claims. See McBurney, 667 F.3d at 459-60. McBurney is a citizen of Rhode Island who previously lived in Virginia and still has connections to Virginia through a divorce, child custody, and child support decrees. See Id.at 459. When McBurney’s former wife defaulted on child support obligations, McBurney asked one of the Respondents, Virginia Division of Child Support Enforcement (“DCSE”), to file for child support on his behalf, which they did. See Id. McBurney was granted the child support; however, his ability to collect the payments was delayed for nine-months. See Id. Hoping to discover the cause of the delay, McBurney filed a VFOIA request with DCSE seeking documents regarding his application for child support. See Id.The DCSE denied the request because McBurney was not a citizen of Virginia. See Id.
Plaintiff Hurlbert is a citizen of California and is the sole proprietor of Sage Information Services, a business which, on a client’s behalf, requests real estate tax assessment records from state agencies across the United States. See McBurney, 667 F.3dat 460. Hurlbert filed a VFOIA request for certain real estate tax assessment records in Virginia with the other respondent, Henrico County Real Estate Assessor’s Office. See Id.His request was denied, also on the grounds that he is not a citizen of Virginia. See Id.
McBurney and Hurlbert filed a complaint with the District Court for the Eastern District of Virginia. See McBurney, 667 F.3dat 460. The District Court granted summary judgment to Respondents, holding that the VFOIA’s citizen-only provision did not violate McBurney and Hurlbert’s rights under the Privileges and Immunities Clause or Hurlbert’s rights under the dormant Commerce Clause. Id.(citing McBurney v. Cuccinelli, 780 F.Supp.2d 439 (E.D.Va.2011)). First, the District Court ruled that McBurney and Hurlbert failed to show that the provision burdened a fundamental right under the Privileges and Immunities Clause by rejecting two asserted rights: (1) the right to access government information, and (2) the right to advocate for one’s own economic interests. See McBurney, 667 F.3d at 460. Second, the court ruled that although Hurlbert was engaged in a common calling within the meaning of the Privileges and Immunities Clause, the VFOIA did not infringe his right to pursue the common calling because it is not a regulation of business and does not constitute discrimination pertaining to a common calling. See Id.Lastly, the court ruled that the VFOIA does not violate the Commerce Clause because although it may have some impact on out-of-state business, the goal of the VFOIA is not to favor Virginia business over non-Virginia business. See Id.
McBurney and Hurlbert appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed the District Court’s decision. See McBurney, 667 F.3d at 460. Then, McBurney and Hurlbert filed a successful writ of certiorari with the United States Supreme Court.
The decision in this case will determine whether the VFOIA’s citizens-only provision is unconstitutional. If it is, all states will be required to allow equal access of public records to citizens from other states. Both sides disagree as to whether the citizens-only provision contains sufficient loopholes and exceptions to allow everyone who needs public information to obtain it and whether prohibiting the citizens-only provision would be too costly for the state.
LOOPHOLES AND EXCEPTIONS
In support of Petitioners, the Coalition for Sensible Public Records (“The Coalition”) argues that the citizens-only provision adversely affects many programs by creating large gaps in necessary information. See Brief of Amicus Curiae the Coalition for Sensible Public Records, et al. (“The Coalition”), in Support of Petitioners at 27-28. The Coalition argues that federal and state governments, businesses, consumers, and especially journalists rely on a fullness and breadth of public information and that without access to certain states, they are unable to have complete information. See Id. at 33. One example that the Coalition provides is the fact that many businesses rely on nationwide background checks to determine whether or not a potential employee has a criminal record. See Id. The Coalition states that, without full access to each state’s public records, a day care center may unknowingly hire a convicted pedophile.Id.
However, Respondents argue that the citizens-only provision contains loopholes and exceptions which allow access to all people who need to access public information. See Brief of Respondents, Young, et al., in Opposition to the Petition for the Writ of Certiorari (“Respondents in Opposition”) at 23. Respondents state that the citizens-only provision simply prevents non-citizens from requiring Virginia’s officials to search for public records for non-citizens. See Id.Therefore, any non-citizen may visit the state, or hire someone within the state, to personally inspect and copy, as well as buy and sell, any public records. Id.
The Coalition argues that these loopholes and exceptions are not sufficient and in fact make obtaining public records more difficult for non-citizens. See Brief of the Coalition at25.The Coalition states that many businesses and consumers rely on accessing public information in a timely and cost-effective manner. See Id. at 26. They argue that traveling to the state each time they need to look at the state’s public records, or hiring someone within the state, would needlessly make obtaining public information more time consuming and costly. See Id. at 26-27.
COSTS TO THE STATES
In support of Petitioners, Judicial Watch argues that providing equal access to public records would not burden the state with additional costs because the state of Virginia is entitled to impose a reasonable fee on all records requesters. Brief of Amicus Curiae Judicial Watch, Inc. and Allied Educational Foundation (“Judicial Watch”), in Support of Petitioners at 15. Petitioners assert that, in addition to charging records requesters, the state can more efficiently comply with records requests by either posting the records on a website or delivering the records through an electronic mailing system. See Brief for Petitioners, McBurney and Hulbert at 9. Respondents argue that the fact that the state can recoup its copying and administrative costs does not eliminate all costs associated with complying with public record requests. See Brief of Respondents, Young, et al. at 2. Respondents state that a significant portion of the costs associated with public records is borne by the taxpayers of the state and not by the public record requesters because the state may only recoup the actual cost incurred in complying with public record requests and not the costs associated with creating and maintaining the records. See Id.
Respondents argue that providing citizens from other states with equal access to public records would undermine the state’s ability to provide a wide variety of services. See Brief of Respondents in Opposition at 24. Respondents offer a long list of services which may be undermined including: public education, state generated energy, and police and fire protection. See Brief of Respondents at 41. However, Petitioners argue that there is no evidence that states which provide equal access to public records are unable to effectively provide services to their citizens. See Brief for Petitioners at 51. Petitioners state that the fact that many states are eliminating their citizens-only provisions means that allowing equal access to their public records does not undermine their ability to provide other services. See Id.
Petitioners argue that the VFOIA violates the Privileges and Immunities Clause and the dormant Commerce Clause because it discriminates between Virginians and non-Virginians solely on the basis of their citizenship. See Brief for Petitioners at 24–25, 35. Respondents argue that the VFOIA citizens-only restriction does not violate a fundamental right protected by the Privileges and Immunities Clause. In addition, the respondents argue that the VFOIA does not violate the dormant Commerce Clause because Virginia is carrying out a government, not a commercial, function, and it has not placed its records into the stream of interstate commerce. See Brief for Respondents at 15–16, 37.
THE DORMANT COMMERCE CLAUSE
The main point of contention between the parties is whether Virginia can deny citizens of other states the right of access to public records that it grants its own citizens, merely because of their out-of-state citizenship status. Petitioners argue that VFOIA violates the Commerce Clause, because it discriminates against out-of-state economic interests, both facially and as-applied, without advancing any valid reason for that discrimination. See Brief for Petitioners at 24–25. First, Petitioners contend that in today’s economy, information from public records is used by public and private entities in interstate commerce, thus such information qualifies as interstate commerce under the Commerce Clause. Id. at 26. Furthermore, Petitioners contend that the business of collecting and providing public records from all over the nation in itself constitutes interstate commerce. Id. at 26–27.
Second, Petitioners note that in United Haulers v. Oneida-Herkimer Solid Waste Management, the Supreme Court held that “[i]n this context, discrimination simply means differentiated treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” See Brief for Petitioners at 25. Petitioners argue that, in practice, the VFOIA discriminates against out-of-state citizens because it gives in-state business preferential treatment over out-of-state business. See Brief for Petitioners at 28. Petitioners believe that the Act places out-of-state businesses at a commercial disadvantage by making them incur added costs, like hiring in-state record retrievers or becoming Virginia citizens, in order to participate in the records market. Id.Furthermore, Petitioner argues that the Supreme Court should consider the effect of every state adopting similar regulations: the interstate commerce in document collection and retrieval would come to a halt, suffocating competition, disrupting the flow of information, and causing the price of gathering services to rise. Id. at 30.
Finally, Petitioners contend that the Fourth Circuit erred when it did not apply strict scrutiny to the statute, holding instead that because the statute is silent as to commerce or economic interests, it only affects commerce incidentally. See Brief for Petitioners at 30. First, Petitioners contend that the fact that the VFOIA is silent as to commerce does not mean that it does not discriminate between commercial interests. Id.Furthermore, the fact that the VFOIA covers commercial and non-commercial requesters, should not take away from the fact that it has a discriminatory effect on commercial requesters. Id. at 31–32. Second, Petitioner argues that the discriminatory effect on commercial requesters is not incidental, but direct. Id. at 32. Petitioners contend that the citizens-only provision directly denies out-of-state business the right to collect and inspect records, a right that is afforded to in-state businesses. Id.
Respondents agree that the dormant Commerce Clause is triggered “where a state law discriminates facially, in its practical effect, or in its purpose against interstate commerce.” See Brief for Respondents at 37. However, Respondents argue that Petitioners are mistaken when they argue that state records are articles of commerce because Virginia has never placed the documents into the interstate stream of business. Id. at 39. Respondents contend that Virginia is carrying out a governmental, non-commercial function when it makes its records available to its citizens. Id. Furthermore, Respondents argue that when a state carries out a governmental function, those actions are not subject to strict scrutiny under the dormant Commerce Clause because they are presumed to be motivated by legitimate objectives. Id. at 40. Finally, Respondents argue that discrimination under the dormant Commerce Clause supposes an existence of substantially similar entities. Id. Here, argue Respondents, the State does not engage in discriminatory behavior because it properly distinguishes between taxpayers and voters on one hand and non-citizens on the other when it chooses to provide a state service. Id.
THE PRIVILIGES AND IMMUNITIES CLAUSE
Petitioners argue that the VFOIA violates the Privileges and Immunities Clause in a number of ways by: (1) hindering the ability to pursue a common-calling, (2) denying access to records from public proceedings, and (3) denying the right of access to public information on equal terms. See Brief for Petitioners at 34–46. First, petitioners note that in Ward v. Maryland, the Supreme Court held that the Privileges and Immunities Clause “plainly and unmistakably secures” the right to a “common calling.” Id. at 36. Petitioners argue that the VFOIA hinders the ability of out-of-state citizens to pursue a common calling because it denies out-of-state citizens the ability to participate in the records-collecting business in Virginia on equal footing with citizens of Virginia. Id. at 36–39. Here, the VFOIA places a direct burden on Petitioner Hurlbert’s business by preventing him from doing business in Virginia altogether. Id. at 37.
Next, Petitioners argue that Virginia violated the Privileges and Immunities Clause when it withheld records of public proceedings from Petitioner McBurney. See Brief for Petitioners at 42. Petitioners argue that withholding public proceedings is especially harmful here because the Privileges and Immunities Clause has recognized the privilege of “enforcing debts” as one of those protected by the Clause. Id. at 43. Thus, Petitioners contend that the Privileges and Immunities Clause should protect out-of-state citizens from being denied access to records from administrative proceedings solely because of their citizenship. Id.
Finally, Petitioners argue that the Privileges and Immunities Clause protects the right of access to public information on equal terms. See Brief for Petitioners at 44. Petitioners argue that although Virginia may choose not to release certain information, once it does decide to release the information the State is bound to provide it on equal terms to citizens and non-citizens alike. Id. at 46.
Respondents reply by asserting that the Privileges and Immunities Clause only protects fundamental rights and those activities essential to the livelihood of the nation. See Brief for Respondents at 15–16. First, Respondents argue that Freedom of Information Acts are relatively new and thus do not qualify as creating fundamental rights under the Privileges and Immunities Clause. Id. at 18. Respondents argue that the date of enactment of these statutes (the Federal FOIA enacted was in 1966 and VFOIA was enacted in 1968) undermine the notion that they are essential to the livelihood of the nation. Id. at 18–19.
Second, Respondents argue that VFOIA does not prohibit Petitioner Hurlbert from practicing his trade in Virginia. See Brief for Respondents at 19–20. Respondents argue that the Supreme Court has struck down statutes affecting a common calling under the Privileges and Immunities Clause only when the statutes involved an outright ban on non-residents performing work or the statutes imposed discriminatory taxes on non-residents. Id. at 20. Here, argue Respondents, Hurlbert is not prohibited from practicing his trade in Virginia, nor does the State impose any unequal taxes or fees on him. Id. at 21.
Lastly, Respondents argue that the right to equal access of all governmental information has never been regarded as a fundamental right under the Privileges and Immunities Clause. See Brief for Respondents at 23. The purpose of rights under the Privileges and Immunities Clause was to limit the burdens of alienage and prevent legal restrictions placed on foreign citizens solely because of their foreign status. Id. at 24. Respondents argue that access to public records is not a fundamental right because it was not recognized as a disability under alienage, nor has such an access been enjoyed by citizens at all times since the Founding. Id. at 25. Respondents concede that some jurisdictions do allow either unimpeded access to public records, or access to public records by showing of special need. Id. at 26–29. However, Respondent argues that this leads to two conclusions: (1) rights to public access were not sufficiently uniform to make them fundamental for purposes of the Privileges and Immunities Clause, and (2) rights to public access today are likely broader than any right of access to public documents enjoyed at the time of the Founding. Id. at 30–31.
This case has the potential to affect how and to what extent persons can request and obtain records from states in which they are not citizens. Petitioners argue that the VFOIA violates the Privileges and Immunities Clause because the VFOIA forecloses Petitioner Hurlbert from pursuing a common calling and from requesting property records and Petitioner McBurney from requesting administrative agency, solely on the ground that Petitioners are not citizens of Virginia. Furthermore, Petitioners also argue that the VFOIA violates the dormant Commerce Clause because the statute places unjustified burdens on out-of-state businesses attempting to conduct business in Virginia, solely on the ground of citizenship. Respondents argue that VFOIA is constitutionally sound because the alleged rights requested by Petitioners are not fundamental rights under the purview of the Privileges and Immunities Clause. Respondents also argue that the VFOIA does not violate the dormant Commerce Clause because Virginia has not placed any records in the stream of interstate commerce, and any burdens are incidental to the proper carrying out of Virginia’s governmental function. If the Supreme Court finds for Petitioners, states may be required to extend access to their public records to citizens of all other states.
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