McBurney v. Young , 133 S. Ct. 1709 ( 2013 )


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  • (Slip Opinion)              OCTOBER TERM, 2012                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
            MCBURNEY ET AL. v. YOUNG, DEPUTY 
    
          COMMISSIONER AND DIRECTOR, VIRGINIA 
    
        DIVISION OF CHILD SUPPORT ENFORCEMENT, 
    
                          ET AL. 
    
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                     THE FOURTH CIRCUIT
    
         No. 12–17. Argued February 20, 2013—Decided April 29, 2013
    Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens
      access to all public records, but grants no such right to non-
      Virginians. Petitioners McBurney and Hurlbert, citizens of States
      other than Virginia, filed records requests under the Act. After each
      petitioner’s request was denied, they filed a 
    42 U.S. C
    . §1983 suit
      seeking declaratory and injunctive relief for violations of the Privi-
      leges and Immunities Clause and, in Hurlbert’s case, the dormant
      Commerce Clause. The District Court granted Virginia’s motion for
      summary judgment, and the Fourth Circuit affirmed.
    Held:
        1. Virginia’s FOIA does not violate the Privileges and Immunities
     Clause, which protects only those privileges and immunities that are
     “fundamental.” See Baldwin v. Fish and Game Comm’n of Mont.,
     
    436 U.S. 371
    , 382, 388. Pp. 3–12.
           (a) Hurlbert alleges that Virginia’s FOIA abridges his fundamen-
     tal right to earn a living in his chosen profession—obtaining property
     records on behalf of his clients. While the Privileges and Immunities
     Clause protects the right of citizens to “ply their trade, practice their
     occupation, or pursue a common calling,” Hicklin v. Orbeck, 
    437 U.S. 518
    , 524, the Court has struck down laws as violating this privilege
     only when they were enacted for the protectionist purpose of burden-
     ing out-of-state citizens. See, e.g., Toomer v. Witsell, 
    334 U.S. 385
    ,
     395, 397. The Virginia FOIA’s citizen/noncitizen distinction has a
     nonprotectionist aim. Virginia’s FOIA exists to provide a mechanism
    2                         MCBURNEY v. YOUNG
    
                                      Syllabus
    
        for Virginia citizens to obtain an accounting from their public offi-
        cials; noncitizens have no comparable need. Moreover, the distinc-
        tion between citizens and noncitizens recognizes that citizens alone
        foot the bill for the fixed costs underlying recordkeeping in the Com-
        monwealth. Any effect the Act has of preventing citizens of other
        States from making a profit by trading on information contained in
        state records is incidental. Pp. 4–6.
             (b) Hurlbert also alleges that Virginia’s FOIA abridges the right
        to own and transfer property in the Commonwealth. The right to
        take, hold, and dispose of property has long been seen as one of the
        privileges of citizenship. See, e.g., Paul v. Virginia, 
    8 Wall. 168
    , 180.
        However, Virginia law does not prevent noncitizens from obtaining
        documents necessary to the transfer of property. Records—like title
        and mortgage documents—maintained by the clerk of each circuit
        court are available to inspection by any person. Real estate tax as-
        sessment records are considered nonconfidential and are often posted
        online, a practice followed by the county from which Hurlbert sought
        records. Requiring a noncitizen to obtain records through the clerk’s
        office or on the Internet, instead of through a burdensome FOIA pro-
        cess, cannot be said to impose a significant burden on the ability to
        own or transfer property in Virginia. Pp. 6–8.
             (c) McBurney alleges that Virginia’s FOIA impermissibly bur-
        dens his access to public proceedings. The Privileges and Immunities
        Clause “secures citizens of one state the right to resort to the courts
        of another, equally with the citizens of the latter state,” Missouri Pa-
        cific R. Co. v. Clarendon Boat Oar Co., 
    257 U.S. 533
    , 535, but that
        “requirement is satisfied if the nonresident is given access . . . upon
        terms which . . . are reasonable and adequate for the enforcing of any
        rights he may have, even though they may not be . . . the same in ex-
        tent as those accorded to resident citizens,” Canadian Northern R.
        Co. v. Eggen, 
    252 U.S. 553
    , 562. Virginia’s FOIA clearly does not de-
        prive noncitizens of “reasonable and adequate” access to Common-
        wealth courts. Virginia’s court rules provide noncitizens access to
        nonpriviledged documents needed in litigation, and Virginia law
        gives citizens and noncitizens alike access to judicial records and to
        records pertaining directly to them. For example, McBurney utilized
        Virginia’s Government Data Collection and Dissemination Practices
        Act to receive much of the information he had sought in his FOIA re-
        quest. Pp. 8–10.
             (d) Petitioners’ sweeping claim that the Virginia FOIA violates
        the Privileges and Immunities Clause because it denies them the
        right to access public information on equal terms with Common-
        wealth citizens is rejected because the right to access public infor-
        mation is not a “fundamental” privilege or immunity of citizenship.
                         Cite as: 569 U. S. ____ (2013)                    3
    
                                    Syllabus
    
      The Court has repeatedly stated that the Constitution does not guar-
      antee the existence of FOIA laws. See, e.g., Los Angeles Police Dept.
      v. United Reporting Publishing Corp., 
    528 U.S. 32
    , 40. Moreover, no
      such right was recognized at common law or in the early Republic.
      Nor is such a sweeping right “basic to the maintenance or well-being
      of the Union.” Baldwin, supra, at 388. Pp. 10–12.
         2. Virginia’s FOIA does not violate the dormant Commerce Clause.
      The “common thread” among this Court’s dormant Commerce Clause
      cases is that “the State interfered with the natural functioning of the
      interstate market either through prohibition or thorough burdensome
      regulation.” Hughes v. Alexandria Scrap Corp., 
    426 U.S. 794
    , 806.
      Virginia’s FOIA, by contrast, neither prohibits access to an interstate
      market nor imposes burdensome regulation on that market. Accord-
      ingly, this is not properly viewed as a dormant Commerce Clause
      case. Even shoehorned into the Court’s dormant Commerce Clause
      framework, however, Hurlbert’s claim would fail. Insofar 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 Com-
      monwealth is the sole manufacturer. A State does not violate the
      dormant Commerce Clause when, having created a market through a
      state program, it “limits benefits generated by [that] state program to
      those who fund the state treasury and whom the State was created to
      serve.” Reeves, Inc. v. Stake, 
    447 U.S. 429
    , 442. Pp. 12–14.
    
    667 F.3d 454
    , affirmed.
    
       ALITO, J., delivered the opinion for a unanimous Court. THOMAS, J.,
    filed a concurring opinion.
                            Cite as: 569 U. S. ____ (2013)                              1
    
                                 Opinion of the Court
    
         NOTICE: This opinion is subject to formal revision before publication in the
         preliminary print of the United States Reports. Readers are requested to
         notify the Reporter of Decisions, Supreme Court of the United States, Wash-
         ington, D. C. 20543, of any typographical or other formal errors, in order
         that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                       _________________
    
                                        No. 12–17
                                       _________________
    
    
      MARK J. MCBURNEY, ET AL., PETITIONERS v. NA-
    
       THANIEL L. YOUNG, DEPUTY COMMISSIONER 
    
         AND DIRECTOR, VIRGINIA DIVISION OF
    
         CHILD SUPPORT ENFORCEMENT, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
               APPEALS FOR THE FOURTH CIRCUIT
    
                                     [April 29, 2013]
    
    
       JUSTICE ALITO delivered the opinion of the Court.
       In this case, we must decide whether the Virginia Free-
    dom of Information Act, Va. Code Ann. §2.2–3700 et seq.,
    violates either the Privileges and Immunities Clause of
    Article IV of the Constitution or the dormant Commerce
    Clause. The Virginia Freedom of Information Act (FOIA),
    provides that “all public records shall be open to inspection
    and copying by any citizens of the Commonwealth,” but
    it grants no such right to non-Virginians. §2.2–3704(A)
    (Lexis 2011).
       Petitioners, who are citizens of other States, unsuccess-
    fully sought information under the Act and then brought
    this constitutional challenge. We hold, however, that
    petitioners’ constitutional rights were not violated. By
    means other than the state FOIA, Virginia made available
    to petitioners most of the information that they sought,
    and the Commonwealth’s refusal to furnish the additional
    information did not abridge any constitutionally protected
    privilege or immunity. Nor did Virginia violate the dor-
    2                   MCBURNEY v. YOUNG
    
                         Opinion of the Court
    
    mant Commerce Clause. The state Freedom of Informa-
    tion Act does not regulate commerce in any meaningful
    sense, but instead provides a service that is related to
    state citizenship. For these reasons, we affirm the deci-
    sion of the Court of Appeals rejecting petitioners’ constitu-
    tional claims.
                                   I
       Petitioners Mark J. McBurney and Roger W. Hurlbert
    are citizens of Rhode Island and California respectively.
    McBurney and Hurlbert each requested documents under
    the Virginia FOIA, but their requests were denied because
    of their citizenship.
       McBurney is a former resident of Virginia whose ex-wife
    is a Virginia citizen. After his ex-wife defaulted on her
    child support obligations, McBurney asked the Common-
    wealth’s Division of Child Support Enforcement to file a
    petition for child support on his behalf. The agency com-
    plied, but only after a 9-month delay. McBurney attrib-
    utes that delay to agency error and says that it cost him
    nine months of child support. To ascertain the reason for
    the agency’s delay, McBurney filed a Virginia FOIA re-
    quest seeking “all emails, notes, files, memos, reports,
    letters, policies, [and] opinions” pertaining to his family,
    along with all documents “regarding [his] application for
    child support” and all documents pertaining to the han-
    dling of child support claims like his. App. in No. 11–1099
    (CA4), p. 39A. The agency denied McBurney’s request on
    the ground that he was not a Virginia citizen. McBurney
    later requested the same documents under Virginia’s Gov-
    ernment Data Collection and Dissemination Practices Act,
    Va. Code Ann. §2.2–3800 et seq., and through that re-
    quest he received most of the information he had sought
    that pertained specifically to his own case. He did not,
    however, receive any general policy information about how
    the agency handled claims like his.
                      Cite as: 569 U. S. ____ (2013)            3
    
                          Opinion of the Court
    
       Hurlbert is the sole proprietor of Sage Information
    Services, a business that requests real estate tax records
    on clients’ behalf from state and local governments across
    the United States. In 2008, Hurlbert was hired by a
    land/title company to obtain real estate tax records for
    properties in Henrico County, Virginia. He filed a Virginia
    FOIA request for the documents with the Henrico County
    Real Estate Assessor’s Office, but his request was denied
    because he was not a Virginia citizen.
       Petitioners filed suit under 
    42 U.S. C
    . §1983, seeking
    declaratory and injunctive relief for violations of the Privi-
    leges and Immunities Clause and, in Hurlbert’s case, the
    dormant Commerce Clause. The District Court granted
    Virginia’s motion for summary judgment, McBurney v.
    Cuccinelli, 
    780 F. Supp. 2d 439
     (ED Va. 2011), and the
    Court of Appeals affirmed, 
    667 F.3d 454
     (CA4 2012).
       Like Virginia, several other States have enacted free-
    dom of information laws that are available only to their
    citizens. See, e.g., Ala. Code §36–12–40 (2012 Cum.
    Supp.); Ark. Code Ann. §25–19–105 (2011 Supp.); Del.
    Code Ann., Tit. 29, §10003 (2012 Supp.); Mo. Rev. Stat.
    §109.180 (2012); N. H. Rev. Stat. Ann. §91–A:4 (West
    2012); N. J. Stat. Ann. §47:1A–1 (West 2003); Tenn. Code
    Ann. §10–7–503 (2012). In Lee v. Minner, 
    458 F.3d 194
    (2006), the Third Circuit held that this feature of Dela-
    ware’s FOIA violated the Privileges and Immunities
    Clause. We granted certiorari to resolve this conflict. 568
    U. S. ___ (2012).
                                 II
      Under the Privileges and Immunities Clause, “[t]he Citi-
    zens of each State [are] entitled to all Privileges and Im-
    munities of Citizens in the several States.” U. S. Const.,
    Art. IV, §2, cl. 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 peo-
    4                   MCBURNEY v. YOUNG
    
                         Opinion of the Court
    
    ple,’ by ‘plac[ing] the citizens of each State upon the same
    footing with citizens of other States, so far as the ad-
    vantages resulting from citizenship in those States are
    concerned.’ ” Lunding v. New York Tax Appeals Tribunal,
    
    522 U.S. 287
    , 296 (1998) (quoting Paul v. Virginia, 
    8 Wall. 168
    , 180 (1869)). This does not mean, we have
    cautioned, that “state citizenship or residency may never
    be used by a State to distinguish among persons.” Bald-
    win v. Fish and Game Comm’n of Mont., 
    436 U.S. 371
    ,
    383 (1978). “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.” Ibid. Rather, we have long
    held that the Privileges and Immunities Clause protects
    only those privileges and immunities that are “fundamen-
    tal.” See, e.g., id., at 382, 388.
      Petitioners allege that Virginia’s citizens-only FOIA
    provision violates four different “fundamental” privileges
    or immunities: the opportunity to pursue a common call-
    ing, the ability to own and transfer property, access to the
    Virginia courts, and access to public information. The first
    three items on that list, however, are not abridged by the
    Virginia FOIA, and the fourth—framed broadly—is not
    protected by the Privileges and Immunities Clause.
                                  A
       Hurlbert argues that Virginia’s citizens-only FOIA pro-
    vision abridges his ability to earn a living in his chosen
    profession, namely, obtaining property records from state
    and local governments on behalf of clients. He is correct
    that the Privileges and Immunities Clause protects the
    right of citizens to “ply their trade, practice their occupa-
    tion, or pursue a common calling.” Hicklin v. Orbeck, 
    437 U.S. 518
    , 524 (1978); Supreme Court of N. H. v. Piper, 
    470 U.S. 274
    , 280 (1985) (“ ‘[O]ne of the privileges which the
    Clause guarantees to citizens of State A is that of doing
    business in State B on terms of substantial equality with
                     Cite as: 569 U. S. ____ (2013)           5
    
                         Opinion of the Court
    
    the citizens of that State’ ”). But the Virginia FOIA does
    not abridge Hulbert’s ability to engage in a common call-
    ing in the sense prohibited by the Privileges and Immuni-
    ties Clause. Rather, the Court has struck laws down as
    violating the privilege of pursuing a common calling only
    when those laws were enacted for the protectionist pur-
    pose of burdening out-of-state citizens. See, e.g., Hicklin,
    supra, (striking down as a violation of noncitizens’ privi-
    leges and immunities an “Alaska Hire” statute containing
    a resident hiring preference for all employment related to
    the development of the State’s oil and gas resources);
    Toomer v. Witsell, 
    334 U.S. 385
    , 395, 397 (1948) (striking
    down a South Carolina statute imposing a $2,500 license
    fee on out-of-state shrimping boats and only a $25 fee on
    in-state shrimping boats where petitioners alleged that
    the “purpose and effect of this statute . . . [was] not to
    conserve shrimp, but to exclude non-residents and thereby
    create a commercial monopoly for South Carolina resi-
    dents,” and the “record cas[t] some doubt on” the State’s
    counterassertion that the statute’s “obvious purpose was
    to conserve its shrimp supply”); United Building & Constr.
    Trades Council of Camden Cty. v. Mayor and Council of
    Camden, 
    465 U.S. 208
     (1984) (New Jersey municipal
    ordinance requiring that at least 40% of employees of
    contractors and subcontractors working on city construc-
    tion projects be city residents facially burdened out-of-
    state citizens’ ability to pursue a common calling). In each
    case, the clear aim of the statute at issue was to ad-
    vantage in-state workers and commercial interests at the
    expense of their out-of-state counterparts.
       Virginia’s FOIA differs sharply from those statutes. By
    its own terms, Virginia’s FOIA was enacted to “ensur[e]
    the people of the Commonwealth ready access to public
    records in the custody of a public body or its officers and
    employees, and free entry to meetings of public bodies
    wherein the business of the people is being conducted.”
    6                   MCBURNEY v. YOUNG
    
                          Opinion of the Court
    
    Va. Code Ann. §2.2–3700(B) (Lexis 2011). Hurlbert does
    not allege—and has offered no proof—that the challenged
    provision of the Virginia FOIA was enacted in order to
    provide a competitive economic advantage for Virginia
    citizens. Cf. Hillside Dairy Inc. v. Lyons, 
    539 U.S. 59
    , 67
    (2003) (piercing a professedly nondiscriminatory statute to
    find economic protectionism). Rather, it seems clear that
    the distinction that the statute makes between citizens
    and noncitizens has a distinctly nonprotectionist aim. The
    state FOIA essentially represents a mechanism by which
    those who ultimately hold sovereign power (i.e., the citi-
    zens of the Commonwealth) may obtain an accounting
    from the public officials to whom they delegate the exer-
    cise of that power. See Va. Const., Art. I, §2; Va. Code
    Ann. §2.2–3700(B). In addition, the provision limiting the
    use of the state FOIA to Virginia citizens recognizes that
    Virginia taxpayers foot the bill for the fixed costs underly-
    ing recordkeeping in the Commonwealth. Tr. of Oral Arg.
    53–54. The challenged provision of the state FOIA does
    not violate the Privileges and Immunities Clause simply
    because it has the incidental effect of preventing citizens
    of other States from making a profit by trading on in-
    formation contained in state records. While the Clause
    forbids a State from intentionally giving its own citizens a
    competitive advantage in business or employment, the
    Clause does not require that a State tailor its every action
    to avoid any incidental effect on out-of-state tradesmen.
                                   B
      Hurlbert next alleges that the challenged provision of
    the Virginia FOIA abridges the right to own and transfer
    property in the Commonwealth. Like the right to pursue
    a common calling, the right to “take, hold and dispose of
    property, either real or personal,” has long been seen as
    one of the privileges of citizenship. See Corfield v. Coryell,
    
    6 F. Cas. 546
    , 552 (No. 3, 230) (CCED Pa. 1825); see also
                     Cite as: 569 U. S. ____ (2013)            7
    
                         Opinion of the Court
    
    Paul, supra, at 180 (listing “the acquisition and enjoyment
    of property” among the privileges of citizenship). Thus,
    if a State prevented out-of-state citizens from accessing
    records—like title documents and mortgage records—that
    are necessary to the transfer of property, the State might
    well run afoul of the Privileges and Immunities Clause.
    Cf. State v. Grimes, 
    29 Nev. 50
    , 85, 
    84 P. 1061
    , 1073 (1906)
    (“Caveat emptor being the rule with us in the absence of a
    special agreement, it is just and essential to the protection
    of persons intending to purchase or take incumbrances
    that they be allowed the right of inspection”); Jackson ex
    dem. Center v. Campbell, 
    19 Johns. 281
    , 283 (N. Y. 1822)
    (the “plain intention” of the State’s property records sys-
    tem was “to give notice, through the medium of the county
    records, to persons about to purchase”).
       Virginia, however, does not prevent citizens of other
    States from obtaining such documents. Under Virginia
    law, “any records and papers of every circuit court that are
    maintained by the clerk of the circuit court shall be open
    to inspection by any person and the clerk shall, when
    requested, furnish copies thereof.” Va. Code Ann. §17.1–
    208 (Lexis 2010). Such records and papers include records
    of property transfers, like title documents, §55–106 (Lexis
    2012); notices of federal tax liens and other federal liens
    against property, §55–142.1; notices of state tax liens
    against property, §58.1–314 (Lexis 2009) (state taxes
    generally), §58.1–908 (estate tax liens), §58.1–1805 (state
    taxes generally), §58.1–2021(A) (liens filed by agencies
    other than the Tax Commission); and notice of mortgages
    and other encumbrances, §8.01–241 (Lexis Supp. 2012).
       A similar flaw undermines Hurlbert’s claim that Vir-
    ginia violates the Privileges and Immunities Clause by pre-
    venting citizens of other States from accessing real estate
    tax assessment records. It is true that those records,
    while available to Virginia citizens under the state FOIA,
    are not required by statute to be made available to noncit-
    8                      MCBURNEY v. YOUNG
    
                             Opinion of the Court
    
    izens. See Associated Tax Service, Inc. v. Fitzpatrick, 
    236 Va. 181
    , 183, 187, 
    372 S.E.2d 625
    , 627, 629 (1988).1 But
    in fact Virginia and its subdivisions generally make even
    these less essential records readily available to all. These
    records are considered nonconfidential under Virginia law
    and, accordingly, they may be posted online. §58.1–3122.2
    (Lexis 2009).    Henrico County, from which Hurlbert
    sought real estate tax assessments, follows this practice,2
    as does almost every other county in the Commonwealth.
    Requiring noncitizens to conduct a few minutes of Internet
    research in lieu of using a relatively cumbersome state
    FOIA process cannot be said to impose any significant
    burden on noncitizens’ ability to own or transfer property
    in Virginia.
                                C
       McBurney alleges that Virginia’s citizens-only FOIA
    provision impermissibly burdens his “access to public
    proceedings.” Brief for Petitioners 42. McBurney is cor-
    rect that the Privileges and Immunities Clause “secures
    citizens of one State the right to resort to the courts of
    another, equally with the citizens of the latter State.”
    Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 
    257 U.S. 533
    , 535 (1922). But petitioners do not suggest that
    
    ——————
      1 At oral argument, the Solicitor General of Virginia contended that,
    
    as a matter of Virginia law, Hurlbert “is entitled to the tax assessment
    data in the clerk’s office.” Tr. of Oral Arg. 38. Neither at oral argu-
    ment nor in its briefs did Virginia cite any Virginia statute providing
    that real estate tax assessment records be filed in the clerk’s office.
    Virginia Code Ann. §58.1–3300 (Lexis 2009), which directs that “reas-
    sessment” records be filed with the clerk, may be the statute to which
    counsel referred, but without an official construction of the statute by
    Virginia’s Supreme Court—and, in light of the fact that petitioners
    have not been afforded an opportunity to rebut its importance—we do
    not rely upon it here.
      2 See http://www.co.henrico.va.us/finance/disclaimer.html (as visited
    
    April 26, 2013, and available in Clerk of Court’s case file).
                     Cite as: 569 U. S. ____ (2013)           9
    
                         Opinion of the Court
    
    the Virginia FOIA slams the courthouse door on nonciti-
    zens; rather, the most they claim is that the law creates
    “[a]n information asymmetry between adversaries based
    solely on state citizenship.” Brief for Petitioners 42.
       The Privileges and Immunities Clause does not require
    States to erase any distinction between citizens and non-
    citizens that might conceivably give state citizens some
    detectable litigation advantage. Rather, the Court has
    made clear that “the constitutional requirement is sat-
    isfied if the non-resident is given access to the courts of
    the State upon terms which in themselves are reasonable
    and adequate for the enforcing of any rights he may have,
    even though they may not be technically and precisely the
    same in extent as those accorded to resident citizens.”
    Canadian Northern R. Co. v. Eggen, 
    252 U.S. 553
    , 562
    (1920).
       The challenged provision of the Virginia FOIA clearly
    does not deprive noncitizens of “reasonable and adequate”
    access to the Commonwealth’s courts. Virginia’s rules of
    civil procedure provide for both discovery, Va. Sup. Ct.
    Rule 4:1 (2012), and subpoenas duces tecum, Rule 4:9.
    There is no reason to think that those mechanisms are
    insufficient to provide noncitizens with any relevant,
    nonprivileged documents needed in litigation.
       Moreover, Virginia law gives citizens and noncitizens
    alike access to judicial records. Va. Code Ann. §17.1–208;
    see also Shenandoah Publishing House, Inc. v. Fanning,
    
    235 Va. 253
    , 258, 
    368 S.E.2d 253
    , 256 (1988). And if
    Virginia has in its possession information about any per-
    son, whether a citizen of the Commonwealth or of another
    State, that person has the right under the Government
    Data Collection and Dissemination Practices Act to in-
    spect that information. §2.2–3806(A)(3) (Lexis 2011).
       McBurney’s own case is illustrative. When his FOIA
    request was denied, McBurney was told that he should
    request the materials he sought pursuant to the Govern-
    10                  MCBURNEY v. YOUNG
    
                          Opinion of the Court
    
    ment Data Collection and Dissemination Practices Act.
    Upon placing a request under that Act, he ultimately
    received much of what he sought. Accordingly, Virginia’s
    citizens-only FOIA provision does not impermissibly bur-
    den noncitizens’ ability to access the Commonwealth’s
    courts.
                                  D
       Finally, we reject petitioners’ sweeping claim that the
    challenged provision of the Virginia FOIA violates the
    Privileges and Immunities Clause because it denies them
    the right to access public information on equal terms with
    citizens of the Commonwealth. We cannot agree that the
    Privileges and Immunities Clause covers this broad right.
       This Court has repeatedly made clear that there is no
    constitutional right to obtain all the information provided
    by FOIA laws. See Houchins v. KQED, Inc., 
    438 U.S. 1
    ,
    14 (1978) (plurality opinion) (“ ‘The Constitution itself is
    [not] a Freedom of Information Act’ ”); see also Los Angeles
    Police Dept. v. United Reporting Publishing Corp., 
    528 U.S. 32
    , 40 (1999) (the Government could decide “not to
    give out [this] information at all”); Sorrell v. IMS Health
    Inc., 
    564 U.S.
    ___, ___ (2011) (BREYER, J., dissenting) (slip
    op., at 8) (“[T]his Court has never found that the First
    Amendment prohibits the government from restricting the
    use of information gathered pursuant to a regulatory
    mandate”).
       It certainly cannot be said that such a broad right has
    “at all times, been enjoyed by the citizens of the several
    states which compose this Union, from the time of their
    becoming free, independent, and sovereign.” Corfield, 6
    F. Cas., at 551. No such right was recognized at common
    law. See H. Cross, The People’s Right to Know 25 (1953)
    (“[T]he courts declared the primary rule that there was no
    general common law right in all persons (as citizens,
    taxpayers, electors or merely as persons) to inspect public
                      Cite as: 569 U. S. ____ (2013)            11
    
                          Opinion of the Court
    
    records or documents”). Most founding-era English cases
    provided that only those persons who had a personal
    interest in non-judicial records were permitted to access
    them. See, e.g., King v. Shelley, 3 T. R. 141, 142, 100 Eng.
    Rep. 498, 499 (K. B. 1789) (Buller, J.) (“[O]ne man has no
    right to look into another’s title deeds and records, when
    he . . . has no interest in the deeds or rolls himself ”); King
    v. Justices of Staffordshire, 6 Ad. & E. 84, 101, 112 Eng.
    Rep. 33, 39 (K. B. 1837) (“The utmost . . . that can be said
    on the ground of interest, is that the applicants have a
    rational curiosity to gratify by this inspection, or that they
    may thereby ascertain facts useful to them in advancing
    some ulterior measures in contemplation as to regulating
    county expenditure; but this is merely an interest in ob-
    taining information on the general subject, and would
    furnish an equally good reason for permitting inspection of
    the records of any other county: there is not that direct
    and tangible interest, which is necessary to bring them
    within the rule on which the Court acts in granting in-
    spection of public documents”).
      Nineteenth-century American cases, while less uniform,
    certainly do not support the proposition that a broad-
    based right to access public information was widely recog-
    nized in the early Republic. See, e.g., Cormack v. Wolcott,
    
    37 Kan. 391
    , 394, 
    15 P. 245
    , 246 (1887) (denying manda-
    mus to plaintiff seeking to compile abstracts of title rec-
    ords; “At common law, parties had no vested rights in the
    examination of a record of title, or other public records,
    save by some interest in the land or subject of record”);
    Brewer v. Watson, 
    71 Ala. 299
    , 305 (1882) (“The individual
    demanding access to, and inspection of public writings
    must not only have an interest in the matters to which
    they relate, a direct, tangible interest, but the inspection
    must be sought for some specific and legitimate purpose.
    The gratification of mere curiosity, or motives merely
    speculative will not entitle him to demand an examination
    12                 MCBURNEY v. YOUNG
    
                         Opinion of the Court
    
    of such writings”); Nadel, What are “Records” of Agency
    Which Must Be Made Available Under State Freedom of
    Information Act, 
    27 A. L
    . R. 4th 680, 687, §2[b] (1984)
    (“[A]t common law, a person requesting inspection of a
    public record was required to show an interest therein
    which would enable him to maintain or defend an action
    for which the document or record sought could furnish
    evidence or necessary information”).
       Nor is such a sweeping right “basic to the maintenance
    or well-being of the Union.” Baldwin, 436 U. S., at 388.
    FOIA laws are of relatively recent vintage. The federal
    FOIA was enacted in 1966, §1, 80 Stat. 383, and Virginia’s
    counterpart was adopted two years later, 1968 Va. Acts ch.
    479, p. 690. There is no contention that the Nation’s unity
    foundered in their absence, or that it is suffering now
    because of the citizens-only FOIA provisions that several
    States have enacted.
                                 III
       In addition to his Privileges and Immunities Clause
    claim, Hurlbert contends that Virginia’s citizens-only
    FOIA provision violates the dormant Commerce Clause.
    The Commerce Clause empowers Congress “[t]o regulate
    Commerce . . . among the several States.” Art. I, §8, cl. 3.
    The Commerce Clause does not expressly impose any
    constraints on “the several States,” and several Members
    of the Court have expressed the view that it does not do so.
    See General Motors Corp. v. Tracy, 
    519 U.S. 278
    , 312
    (1997) (SCALIA, J., concurring) (“[T]he so-called ‘negative’
    Commerce Clause is an unjustified judicial intervention,
    not to be expanded beyond its existing domain”); United
    Haulers Assn. Inc. v. Oneida-Herkimer Solid Waste Man-
    agement Authority, 
    550 U.S. 330
    , 349 (2007) (THOMAS, J.,
    concurring in judgment) (“The negative Commerce Clause
    has no basis in the Constitution and has proved unwork-
    able in practice”). Nonetheless, the Court has long inferred
                      Cite as: 569 U. S. ____ (2013)           13
    
                          Opinion of the Court
    
    that the Commerce Clause itself imposes certain implicit
    limitations on state power. See, e.g., Cooley v. Board of
    Wardens of Port of Philadelphia ex rel. Soc. for Relief of
    Distressed Pilots, 
    12 How. 299
    , 318–319 (1852); cf. Gib-
    bons v. Ogden, 
    9 Wheat. 1
    , 209 (1824) (Marshall, C. J.)
    (dictum).
       Our dormant Commerce Clause jurisprudence “signifi-
    cantly limits the ability of States and localities to regulate
    or otherwise burden the flow of interstate commerce.”
    Maine v. Taylor, 
    477 U.S. 131
    , 151 (1986). It is driven by
    a concern about “economic protectionism—that is, regula-
    tory measures designed to benefit in-state economic inter-
    ests by burdening out-of-state competitors.” New Energy
    Co. of Ind. v. Limbach, 
    486 U.S. 269
    , 273–274 (1988); see
    also Philadelphia v. New Jersey, 
    437 U.S. 617
    , 624 (1978)
    (“The crucial inquiry . . . must be directed to determining
    whether [the challenged statute] is basically a protection-
    ist measure, or whether it can fairly be viewed as a law
    directed to legitimate local concerns, with effects upon
    interstate commerce that are only incidental”).
       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 “common thread” among those cases in which the
    Court has found a dormant Commerce Clause violation
    is that “the State interfered with the natural functioning
    of the interstate market either through prohibition or
    through burdensome regulation.” Hughes v. Alexandria
    Scrap Corp., 
    426 U.S. 794
    , 806 (1976). Here, by contrast,
    Virginia neither prohibits access to an interstate market
    nor imposes burdensome regulation on that market.
    Rather, it merely creates and provides to its own citizens
    copies—which would not otherwise exist—of state records.
    As discussed above, the express purpose of Virginia’s
    FOIA law is to “ensur[e] the people of the Commonwealth
    ready access to public records in the custody of a public
    14                  MCBURNEY v. YOUNG
    
                          Opinion of the Court
    
    body or its officers and employees, and free entry to meet-
    ings of public bodies wherein the business of the people is
    being conducted.” Va. Code Ann. §2.2–3700(B). This case
    is thus most properly brought under the Privileges and
    Immunities Clause: It quite literally poses the question
    whether Virginia can deny out-of-state citizens a benefit
    that it has conferred on its own citizens. Cf. Missouri
    Pacific R. Co., 257 U. S., at 535 (analyzing whether the
    privilege of access to a State’s courts must be made avail-
    able to out-of-state citizens equally with the citizens of the
    relevant State). Because it does not pose the question of
    the constitutionality of a state law that interferes with an
    interstate market through prohibition or burdensome
    regulations, this case is not governed by the dormant
    Commerce Clause.
       Even shoehorned into our dormant Commerce Clause
    framework, however, Hurlbert’s claim would fail. Insofar
    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 manu-
    facturer. We have held that a State does not violate the
    dormant Commerce Clause when, having created a mar-
    ket through a state program, it “limits benefits generated
    by [that] state program to those who fund the state treas-
    ury and whom the State was created to serve.” Reeves,
    Inc. v. Stake, 
    447 U.S. 429
    , 442 (1980). “Such policies,
    while perhaps ‘protectionist’ in a loose sense, reflect the
    essential and patently unobjectionable purpose of state
    government—to serve the citizens of the State.” Ibid.; cf.
    Department of Revenue of Ky. v. Davis, 
    553 U.S. 328
    ,
    341 (2008) (“[A] government function is not susceptible to
    standard dormant Commerce Clause scrutiny owing to its
    likely motivation by legitimate objectives distinct from the
    simple economic protectionism the Clause abhors”). For
    these reasons, Virginia’s citizens-only FOIA provision does
    not violate the dormant Commerce Clause.
                     Cite as: 569 U. S. ____ (2013)           15
    
                         Opinion of the Court
    
                             *    *     *
       Because Virginia’s citizens-only FOIA provision neither
    abridges any of petitioners’ fundamental privileges and
    immunities nor impermissibly regulates commerce, peti-
    tioners’ constitutional claims fail. The judgment below is
    affirmed.
                                                It is so ordered.
                     Cite as: 569 U. S. ____ (2013)          1
    
                        THOMAS, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 12–17
                             _________________
    
    
      MARK J. MCBURNEY, ET AL., PETITIONERS v. NA-
    
       THANIEL L. YOUNG, DEPUTY COMMISSIONER 
    
         AND DIRECTOR, VIRGINIA DIVISION OF 
    
         CHILD SUPPORT ENFORCEMENT, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
               APPEALS FOR THE FOURTH CIRCUIT
    
                            [April 29, 2013] 
    
    
      JUSTICE THOMAS, concurring.
      I join the Court’s opinion. Though the Court has prop-
    erly applied our dormant Commerce Clause precedents, I
    continue to adhere to my view that “[t]he negative Com-
    merce Clause has no basis in the text of the Constitution,
    makes little sense, and has proved virtually unworkable
    in application, and, consequently, cannot serve as a basis
    for striking down a state statute.” Hillside Dairy Inc. v.
    Lyons, 
    539 U.S. 59
    , 68 (2003) (opinion concurring in part
    and dissenting in part) (citation and internal quotation
    marks omitted).
    

Document Info

DocketNumber: 12-17

Citation Numbers: 133 S. Ct. 1709, 185 L. Ed. 2d 758, 2013 U.S. LEXIS 3317

Filed Date: 4/29/2013

Precedential Status: Precedential

Modified Date: 12/5/2017

Authorities (28)

Gibbons v. Ogden , 22 U.S. 1 ( 1824 )

Cooley v. Board of Wardens of Port of Philadelphia Ex Rel. ... , 53 U.S. 299 ( 1852 )

Paul v. Virginia , 75 U.S. 168 ( 1869 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Canadian Northern R. Co. v. Eggen , 252 U.S. 553 ( 1920 )

Missouri Pacific R. Co. v. Clarendon Boat Oar Co. , 257 U.S. 533 ( 1922 )

Toomer v. Witsell , 334 U.S. 385 ( 1948 )

Hughes v. Alexandria Scrap Corp. , 426 U.S. 794 ( 1976 )

Baldwin v. Fish and Game Comm'n of Mont. , 436 U.S. 371 ( 1978 )

Hicklin v. Orbeck , 437 U.S. 518 ( 1978 )

Philadelphia v. New Jersey , 437 U.S. 617 ( 1978 )

Houchins v. KQED, Inc. , 438 U.S. 1 ( 1978 )

Reeves, Inc. v. Stake , 447 U.S. 429 ( 1980 )

United Building & Constr. Trades Council of Camden Cty. v. ... , 465 U.S. 208 ( 1984 )

Supreme Court of NH v. Piper , 470 U.S. 274 ( 1985 )

Maine v. Taylor , 477 U.S. 131 ( 1986 )

New Energy Co. of Ind. v. Limbach , 486 U.S. 269 ( 1988 )

General Motors Corp. v. Tracy , 519 U.S. 278 ( 1997 )

Lunding v. New York Tax Appeals Tribunal , 522 U.S. 287 ( 1998 )

Los Angeles Police Dept. v. United Reporting Publishing ... , 528 U.S. 32 ( 2000 )

View All Authorities »

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