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Thursday, February 14, 2013

Can Access to Public Records be Limited to Residents?

The U.S. Supreme Court will consider that question on February 20, 2013, when it hears oral argument in McBurney v. Young. That case involves an appeal of a decision by the 4th Circuit Court of Appeals that upheld the constitutionality of a "citizens-only" provision in Virginia's FOIA law.  That provision provides, in relevant part, as follows:
"Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth."
McBurney, one of the plaintiffs, was a citizen of Rhode Island with ties to his former residence of Virginia through divorce, child custody, and child support decrees. He filed a FOIA request for public records from the Virginia Division of Child Support Enforcement (DCSE) seeking a variety of documents relating to him, his son, and his ex-wife, and other documents. The DCSE denied his FOIA request on the grounds that the information was confidential under exemptions to FOIA and because McBurney was not a citizen of Virginia.
McBurney and another plaintiff who was also denied access filed a lawsuit against DCSE, alleging that the citizens-only provision of the Virginia FOIA statute impermissibily discriminated against them by denying them access to public records solely because they are not Virginia citizens. The plaintiffs alleged violations of the Privileges and Immunities Clause, asserting that the statute impermissibly denied them the "right to participate in Virginia's governmental and political processes" by barring them "from obtaining information from Virginia's government."  They also claimed that the citizens-only provision violated the dormant Commerce Clause because it grants Virginia citizens an exclusive right of access to Virginia's public records and bars non-citizens from pursuing any business stemming from Virginia public records on substantially equal terms with Virginia citizens. 
The district court ruled in favor of the DCSE, finding no infringement of any rights under the Privileges and Immunities Clause or the dormant Commerce Clause, and on appeal, the 4th Circuit Court of Appeals affirmed. The 4th Circuit first determined that the Supreme Court recognizes that states are permitted to distinguish between residents and nonresidents so long as those distinctions do not violate any fundamental rights under the Privileges and Immunities Clause of the U.S. Constitution.  The 4th Circuit held that access to a state's records does not implicate any fundamental right under the Privileges and Immunities Clause. With respect to the dormant Commerce Clause claim, the Court held that the citizens-only provision of the FOIA statute it prevents Hurlbert from using his "chosen way of doing business," but it does not prevent him from engaging in business in the Commonwealth.
The International Municipal Lawyers Association (IMLA), the International City/County Management Association (ICMA), and other groups filed amicus briefs in support of the 4th Circuit decision upholding the citizens-only provision of FOIA.
We will follow-up on this case as it moves forward with the U.S. Supreme Court.


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