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Monday, April 29, 2013

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records


A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records
McBurney Et Al. v. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, Et Al. U.S. Supreme Court 14-7206

A challenge to Virginia's Freedom of Information Act (FOIA), which grants only citizens of Virginia access to all public records, does not violate the Privileges and Immunities Clause of the U.S. Constitution was rejected by U.S. Supreme Court, affirming the ruling by the Court of Appeals, 4th Circuit.

Mark J. McBurney and Roger W. Hurlbert, respectively citizens of Rhode Island and California, each requested documents under the Virginia FOIA. Their requests were denied because of their citizenship although such documents would have been provided to them had they been citizens of Virginia.

The court explained that Virginia’s Freedom of Information Act “does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship.” Accordingly, said the court, it did not violate any provision set out in the U.S. Constitution when it refused to furnish certain information otherwise available to citizens of Virginia that it denied the McBurney plaintiffs.

In the words of the court: Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U. S. Constitution, Article IV, §2, Clause. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to 'strongly . . . constitute the citizens of the United States [as] one people,' by 'plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.' " This does not mean, we have cautioned, that ‘state citizenship or residency may never be used by a State to distinguish among persons.’ Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do."

The Supreme Court concluded that “Virginia's citizens-only FOIA provision neither abridges any of McBurney's or Hurlbert's fundamental privileges and immunities nor impermissibly regulates commerce,” thus the constitutional claims advanced by McBurney and Hurlbert failed.

The decision is posted on the Internet at:

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