In McBurney v. Young, 569 U.S. ____ (2013), the U.S. Supreme Court ruled that Virginia’s Freedom of Information Act (FOIA), which provided access to some public documents to Virginia citizens that it did not extend to others, did not violate the Privileges and Immunities Clause or the dormant Commerce Clause. The decision, written by Justice Samuel Alito for a unanimous Court, affirmed a summary judgment of a federal district court  that had been upheld by the Fourth U.S. Circuit Court of Appeals.

Petitioners Mark J. McBurney and Roger W. Hurlbert, both out-of-state citizens, had requested materials that would have been provided to state citizens but was not provided to them. McBurney, a former Virginia resident who now lived in Rhode Island, sought information related to the handling of child support claims.  Hurlbert of California sought real estate tax records. 

The Privileges and Immunities Clause was designed to put citizens of all states on equal footing when it comes to pursuing a common calling, owning and transferring property, access to state courts, and access to public information. It also protects against state protectionist policies that interfere with interstate commerce. But Alito did not believe that FOIA did any of these things.  Virginia’s FOIA was similar to that of other states and was designed the ensure access by its citizens to public records. But the state has a right to give wider access to its citizens, who provide for the records’ upkeep, than to others.  Moreover, the state has left other avenues open for citizens who need information directly related to them.

Although access to public information is important, the Privileges and Communities does not provide a “constitutional right to obtain all the information provided by FOIA laws.”  As Justice Stephen Breyer noted in his dissent in Sorrell v. IMS Health Inc. (2011), “This Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate.”  Alito further denied that the common law or early nineteenth century U.S. cases had provided a broad right to public access to documents not directly related to their own interests.

As to dormant Commerce Clause precedents, Alito argued that they dealt primarily with economic protectionism that was not evident in this case.  Concurring in a single paragraph opinion, Justice Clarence Thomas restated his own view that what he called the “negative Commerce Clause” “has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application. . .”

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