“Citizen-Only” FOIA Statutes Are Constitutional

| May 2, 2013 | Firm News

In a unanimous decision, the Supreme Court has held that state Freedom of Information Acts that only allow state citizens to obtain documents through the acts violate neither the federal Privileges and Immunities Clause nor the dormant Commerce Clause.  Two plaintiffs who were citizens of states other than Virginia (one was a Rhode Island attorney), brought suit against Virginia when their FOIA requests were denied because they were not citizens of the Old Dominion.  The Court said that the Privileges and Immunities Clause does not require states to apply all its laws equally to citizens and non-citizens.  Rather, the P&I Clause applies only to privileges and immunities that are “fundamental,” such as the opportunity to pursue a common calling, the ability to own and transfer property , access to state courts and access to public information.

Here, the Virginia FOIA was enacted to permit Virginia citizens ready access to Virginia government records so that they could not how their government’s business is being conducted.  There is no allegation it was intended to provide a competitive economic advantage to Virginia citizens.  Any economic advantage is incidental.  Most of the information plaintiff seeks is available through other means even if somewhat more difficult or time-consuming.  There is no fundamental constitutional right to obtain all the information provided by FOIA laws.

Finally, the dormant Commerce Clause does not apply because the Virginia FOIA does not regulate or burden interstate commerce.

McBurney v. Young, No. 12-17 (U.S. April 29, 2013)



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