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Supreme Court Upholds Limitations on Non-Residents’ Access to Public Information

On April 29, 2013, the Supreme Court of the United States issued a unanimous decision upholding citizen-specific limitations in the State of Virginia’s Freedom of Information Act (the “Act”).1 The Act provides that “all public records shall be open to inspection and copying by any citizens of [Virginia],” but grants no such rights to non-Virginians.2

Petitioners, who were citizens of Rhode Island and California, unsuccessfully sought information under the Act and challenged the Act under the Privileges and Immunities Clause and the dormant Commerce Clause of the United States Constitution.3 Of note, Petitioner Mark McBurney was a former Virginia resident who, after his ex-wife defaulted on her child support obligations, sought records regarding the Virginia Division of Child Support Enforcement’s handling of his own child support petition and other claims like his. Despite his former residency in the state of Virginia, the Court still found that he was not entitled to seek information under the Act.

The Petitioners’ Privileges and Immunities challenge hinged on the Act’s abridgement of Petitioners’ rights to earn a living obtaining property records from state and local governments on behalf of clients, the Act’s abridgement of Petitioners’ rights to own and transfer property in Virginia, the Act’s burdening of Petitioners’ access to public proceedings, and the Act’s denial of equal rights to access public information on the same terms as the citizens of Virginia.

The Court rejected each of these arguments. First, the Court found no evidence to support the contention that “the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens,” nor did the Act “prevent citizens of other States from obtaining such documents” necessary to transfer real property. The Court further found that “the challenged provision of the Virginia FOIA clearly does not deprive noncitizens of ‘reasonable and adequate’ access to the Commonwealth’s courts.” In reaching these determinations, the Court reasoned that the Privileges and Immunities Clause is not so broad as to encompass “the right to access public information on equal terms with citizens of the Commonwealth [of Virginia].”

The Court similarly dismissed the Petitioners’ challenge under the dormant Commerce Clause. The Court found that “Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather it merely provides a service to local citizens that would not otherwise be available at all.” The Court explained that “[i]nsofar as there is a ‘market’ for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer,” and, thus, the Act was not susceptible to dormant Commerce Clause scrutiny.

This holding is of critical importance for individuals seeking public information from foreign states and for entities doing business in those states. In fact, several other states, such as Tennessee, Alabama, Arkansas, Missouri, New Hampshire, and New Jersey, have enacted similar limitations on noncitizens’ access to public information.4In seeking public information from such states, noncitizens should be aware that their efforts may be unsuccessful unless they engage citizens of those states to submit a FOIA request on their behalf.

1 McBurney v. Young, No. 12-17, 2013 U.S. LEXIS 3317 (Apr. 29, 2013).

2 Virginia Freedom of Information Act (the “Virginia FOIA” or “Act”), Va. Code Ann. §2.2-3700 et seq. at §2.2-3704(A) (2011).

3 U.S. Const., Art. IV, § 2, cl. 1; U.S. Const., Art. I, § 8, cl. 3.

4 See Jesse J. Holland, Court: State Can Block Out of State Use of FOIA, Associated Press, Apr. 29, 2013 (available at (last visited May 7, 2013).

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About this Author

Kelly L. Frey, land use litigation lawyer, zoning attorney Mintz Levin, Boston

Kelly is an associate in the Litigation Section, practicing in the Boston office. Kelly focuses his practice on land use and real estate litigation. His work in this area includes representing subsidized housing developers in litigation brought under the Massachusetts statute known as Chapter 40B, representing a wide range of clients in industrial permitting disputes involving zoning and wetland issues, and representing landlords in commercial lease disputes. Kelly was recently invited to speak to the American Bar Association’s Section of State and Local Government Law in Washington, DC,...

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Elissa Flynn-Poppey, Government Law Attorney, Mintz Levin, Ethics Lawyer,

Elissa chairs the firm’s Government Law Practice.

Before joining Mintz Levin, Elissa was deputy legal counsel to Governor Romney and executive director of the Judicial Nominating Commission for the Office of the Governor of Massachusetts. Before joining the governor’s office, she was an associate in the litigation section of a Boston-based law firm, focusing primarily on the defense of complex litigation. Elissa also previously served as a law clerk to the justices of the Superior Court of Massachusetts, and was research assistant to Judge Joseph Nolan of the Supreme Judicial Court. She also previously worked for Congressman J. Joseph Moakley and Massachusetts Senator Jo Ann Sprague.

Elissa represents government and private entities as well as individuals on matters regarding ethics, privacy, higher education, government ethics, corporate compliance, public contract procurement, conflict of interest laws, public records law, lobbying, campaign finance, open meeting law, and other government areas.