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
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
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.4 In 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.
1McBurney 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. §2.2-3700et seq.at §2.2-3704(A) (2011).
3 U.S. Const., Art. IV, § 2, cl. 1; U.S.
Const., Art. I, § 8, cl. 3.
This is the first post in a series of posts focused on protest allegations related to discussions with offerors. Planned future posts will cover what qualifies as meaningful discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.