March 30, 2017

A Reivew of Oral Arguments in McBurney v. Young: State FOIA and State Rights

Yesterday, I attended oral arguments in the Supreme Court case of McBurney v. Young, which I have previously written about. The case involves two different petitioners who were denied access to state records under a Virginia “freedom of information” law that limits such access to Virginia residents only. McBurney is a former Virginia resident who wanted some records related to an ongoing child support dispute. Hurlbert is a government information aggregator and reseller.

At issue is whether this preferential treatment is constitutional under the Constitution’s “Privileges and Immunities” clause, as well as the “Dormant Commerce Clause.” In my previous post, I discussed these doctrines in more detail, but I devoted most of my time to describing the privileges and immunities argument — essentially that citizens must receive equal treatment across all states when it comes to “fundamental rights.” While waiting for arguments to begin, I was chatting with another person in the audience. I asked him whether he thought that the argument was going to focus significantly on states’ rights, and he said he expected more time to be devoted to the question of whether or not the rights in question were “fundamental.” It turned out that, with the boisterous support of Justice Scalia, states’ rights were the order of the day.

[Update: Transcript of the arguments is available here]

[Read more…]

Supreme Court to Hear State Freedom of Information Act Case "McBurney v. Young"

On Friday, the Supreme Court granted certiorari to McBurney v. Young. This case formally concerns the “Privileges and Immunities Clause” of the Constitution. It raises questions about what access rights citizens have to government records and about who counts as a journalist. Oral argument will likely be scheduled for 2013.

Mark McBurney is a citizen of Rhode Island who requested public records from the Commonwealth of Virginia. His request was denied because the Virginia Freedom of Information Act (VFOIA) prohibits requests that are made by citizens of other states. About seven other states have similar limitations. McBurney appealed to the 4th Circuit, claiming that he should have the same rights of access as Virginians under the US Constitution’s guarantee that, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” McBurney lost in the 4th Circuit earlier this year. However, in 2006, Matthew Lee (a citizen of New York seeking records from Delaware) had won a similar case in the 3rd Circuit. The Supreme Court is now tasked with reconciling this split.
[Read more…]