At oral argument, Justices across the spectrum pressed petitioners, questioning whether the Constitution really guaranteed non-Virginians access to records paid for by Virginians and concerning the operation of Virginia government bodies run by people elected by Virginians. However, many Justices also were skeptical of the repeated claim by counsel for Virginia that there was no evidence of a commercial impact from the VFOIA’s citizens-only restriction. In the end, the outcome may depend on how many Justices are persuaded that there are constitutional implications to Justice Kagan’s observation that government accountability may have been the original motivation for states to adopt their FOIAs, but those statutes now “have been taken over, to a large extent, across the country by economic enterprises doing economic things.”

The Case to Date

When Mark McBurney and Roger Hurlbert, who are Rhode Island and California citizens respectively, submitted VFOIA requests for public records, their requests were denied for the sole reason that they were not Virginia citizens. Mr. McBurney and Mr. Hurlbert filed suit, claiming that the VFOIA’s citizenship restriction violated the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution. They relied primarily on Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), which held that a similar provision in Delaware’s Freedom of Information Act was unconstitutional as a violation of the Privileges and Immunities Clause of the U.S. Constitution. In Lee, the Third Circuit reasoned that there was a fundamental right to “engage in the political process with regard to matters of national political and economic importance,” and the Delaware FOIA’s citizenship restriction burdened that fundamental right, without substantial justification.

But in McBurney, both the District Court for the Eastern District of Virginia and the Fourth Circuit Court of Appeals disagreed with Lee, holding instead that the VFOIA was constitutionally sound. The Fourth Circuit stated that even if Lee was correct that the right to engage in the political process through access to public records was constitutionally protected — which it doubted — Mr. McBurney and Mr. Hurlbert were instead seeking records for their personal or commercial use, and not as part of the political process. The Fourth Circuit also found that the citizens-only restriction created a merely incidental burden on Mr. Hurlbert’s profession of gathering documents and on interstate commerce. Mr. McBurney and Mr. Hurlbert asked the Supreme Court to take their case. On October 5, 2012, the Supreme Court granted certiorari.

Oral Argument

During oral argument on February 20, 2013, petitioner’s counsel attempted to focus on the VFOIA not as a mechanism for shining light on government but as a vehicle for facilitating the harvesting and sale in national markets of an information-age commodity — data in state and local government documents. Justice Scalia, however, focused on the political purposes behind the passage of the VFOIA and other state FOIAs, asking counsel for the petitioners what was impermissible about Virginia limiting access to records showing the functions of the Virginia government to its own citizens. In one of the argument’s more colorful moments, Justice Scalia asked why, given the political intent of the VFOIA, it was unreasonable for Virginia to keep “outlanders” from “mucking around in Virginia government.” Justice Ginsburg similarly suggested that the VFOIA was originally passed so that citizens could know what their government was doing, and so it was tied to that state’s “political community.” Because out-of-state citizens cannot vote, these questions implied, they are not part of Virginia’s “political community,” and can be excluded rightfully from demanding documents regarding that community’s government bodies.

Counsel for the petitioners received other difficult questions. Both Chief Justice Roberts and Justice Kagan asked how much of an impact on commerce was needed before a law became discrimination against out-of-state commerce for the purposes of petitioners’ arguments, instead of a political measure that simply had an incidental effect on commerce. The Chief Justice returned to this point later in the argument, noting that the burden on out-of-state requestors appeared minimal, since they could pay a Virginia resident a small sum to submit a VFOIA request on their behalf.

Justice Breyer said that he did not see the VFOIA as implicating the concerns of the dormant Commerce Clause, stating that while the jurisprudence of the dormant Commerce Clause was intended “to prevent a legislature or decisionmaker within its State discriminating in favor of their own state producers,” it was “pretty hard for me to put this case into that mold.”

After Justice Sotomayor clarified that petitioners’ arguments were based on the commercial implications of the VFOIA, as it was applied to the petitioners, Justice Ginsburg asked petitioners’ counsel whether a reversal on such grounds would alter the VFOIA. By focusing on whether “this out-of-Stater has a good reason for getting this and it’s related to the out-of-State’s business . . . you’re changing the character of a FOIA statute which is [that] it doesn’t matter what you want [the records] for.”

Chief Justice Roberts went on to point out that even if there was a commercial impact, and the impact was discriminatory, the VFOIA would still not necessarily violate the Privileges and Immunities Clause: It would have to discriminate in a way that impacts “something that is essential to hold the country together as a national unit.” He continued, “It seems to me it’s a bit of a stretch to say somebody gathering records under FOIA fits that description.”

Virginia’s counsel also faced pointed questioning, despite frequent support from Justice Scalia, who referred to the rationale for the citizens-only restriction as “perfectly logical,” and suggested that “[t]here is not much that’s as close to the sovereignty of the State as the possession and right to exclude people from its own records and its own documents.”

Justice Sotomayor asked how Virginia counsel could justify the citizens-only requirement when out-of-state requestors could “easily” have a citizen make the request on their behalf, which would direct business to Virginia entities. The Chief Justice appeared to agree, stating that “it doesn’t seem like that big a deal” to permit out-of-state requestors to make VFOIA requests directly and that the resulting lack of benefit to the state from the provision was “certainly pertinent to some of the Commerce Clause analysis.” And later, Chief Justice Roberts claimed that striking down the citizens-only provision would make no difference to administration of the VFOIA, stating, “It’s going to be the same system whether you win or lose.”

Justice Breyer, who had sounded critical of petitioners’ Commerce Clause arguments, characterized their Privileges and Immunities Clause arguments as presenting a “strong argument.” As he put it, Virginia had protected in-state businesses who wanted to provide information about Virginia’s state records, even though it was important for out-of-state business to get that information “because our economy is national.” Justices Kagan and Sotomayor pressed Virginia’s counsel on this point, but he declined to engage this argument on its factual basis, claiming that the record below contained no evidence of such a business impact. That led Justice Kennedy to ask, “Are you telling us that there is simply no commercial consequences” from the VFOIA, to which counsel responded that he was “totally agnostic on this record.” Justice Kennedy was unpersuaded, noting that “we interpret summary judgment in favor of the losing party,” and that the Court could take judicial notice of commercial effects of the VFOIA. Justice Sotomayor said that any argument that the VFOIA did not affect commerce was “a fight with no legs. Because you have to know that commercial enterprises in Virginia seek these records.”

Conclusion

The decision in McBurney will most immediately affect businesses, such as data sellers, whose business model depends on ready and inexpensive access to public records in all 50 states. But businesses in all manner of industries whose trade secrets and other confidential information is in the hands of state and local governments could find themselves with an additional protection to guard that information from harmful disclosure by an affirmance that could spur other states to enact similar citizens-only restrictions to their FOIAs.

If the Court does reverse the Fourth Circuit, it will likely do so in a way that avoids putting government agencies in the thorny — and generally forbidden — position of having to determine the purpose of a request and the use of the requested information (for example, whether the request is for personal purposes, for sale in national commerce, or for use in the national political discourse). Both the Fourth Circuit and a district court case upholding Tennessee’s citizen-only restriction relied in part on the seemingly local or personal nature of the requests at issue. But as Justice Ginsburg pointed out at argument, forcing the government to make such determinations would run into a general rule of FOIA law: Requests cannot be denied because of the motives behind a request or the likely use of the requested information. A decision is expected by this summer.