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.
The McBurney case is interesting to those who study open government because it asks whether access to state records is a “fundamental right” or instead is something more mundane and provincial. One of the few touchstone cases for interpreting the Privileges and Immunities Clause is 1978’s Baldwin v. Fish & Game Commission of Montana. There, the Supreme Court decided that obtaining an elk-hunting license was not the type of “fundamental” right envisioned by the Framers. It was not, in their words, “basic to the maintenance or well-being of the Union.” The 3rd Circuit court in Lee v. Minner ruled that non-citizen access to state records was this type of right, whereas the 4th Circuit court in McBurney’s case ruled that it was not.
The case is interesting also to those who study online journalism because the Virginia statute has a condition that is unique among the “citizens-only” state statutes — it has an exemption for out-of-state media. The law permits requests from “representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth.” How are we to interpret this in an era in which newspapers have web-based “circulation” anywhere with an internet connection? What counts as a “newspaper” or “magazine”? The court in Lee did not have to deal with this dilemma because, although Lee was a non-traditional web-based journalist, Delaware had no such exemption (and the whole thing was found to be unconstitutional anyway).
Several interested parties filed amicus briefs that discussed in more detail the harm resulting from the 4th Circuit’s decision. The brief from Citizens for Responsibility and Ethics in Washington (CREW), et al. made the case that the Virginia law violated several “fundamental” rights. The brief explains that, “These rights include the right to pursue common callings, reside and purchase property in other states, and participate in political advocacy.” Co-signers to the brief included the Electronic Frontier Foundation and the Sunlight foundation.
A separate brief from Judicial Watch, Inc., et al. made the case that non-citizen access to state records was, in the language of Baldwin, a right “bearing upon the vitality of the Nation as a single entity.” The brief went on to argue that in addition to the “fundamental” Privileges and Immunities Clause rights, there are rights grounded in common law that predate even the Constitution. They included a series of citations from state supreme courts over the past century that supported this assertion, including the Virginia Supreme Court’s observation in 1891 that, “At common law, the right to inspect public documents is well defined and understood.”
The brief from the American Society of News Editors, et al. discussed the unique concerns of journalists. It was co-signed by Matthew Lee, the winning appellee in the 3rd Circuit case, tech news outlets like Ars Technica, web publishing platforms like Tumblr, and watchdog groups like the Center for Investigative Reporting. The brief described how journalists often rely on state records requests to research and break news of national significance. It also noted that in states that have citizens-only laws and no media exemption, non-resident journalists have no right to access at all. In Virginia, the confusion over what constitutes a journalist, and whether that journalist’s publication has “circulation” within the Commonwealth, leads to inconsistent and discriminatory access. It cited the experience of one of the co-signers, watchdog web site MuckRock, which was recently denied a VFOIA request despite the fact that it is arguably a media entity with circulation in Virginia. (Incidentally, the 4th Circuit had made an attempt to distinguish its decision from the 3rd Circuit based on McBurney’s alleged intended use of the information, which the court claimed was “of a personal import” rather than Lee’s intent “to engage in the political process”. I find this unpersuasive, but in any case, MuckRock’s experience shows that the law has unambiguously harmed those who are seeking “to engage in the political process.”) This group of amici was represented by lawyer and tech advocate Marvin Ammori.
The Privileges and Immunities jurisprudence is pretty obscure, but the underlying principles at stake are critical. McBurney is represented by Deepak Gupta (Gupta/Beck PLLC) and Brian Wolfman (Georgetown Institute For Public Representation), who are both veterans of the excellent public interest firm Public Citizen. I’m looking forward to hearing arguments in this case.
SCOTUSBlog has posted the initial cert petition and all of the other briefs.
(I should mention that there is a co-petitioner in this case who was also denied access to Virginia records. Roger Hurlbert is a California-based businessman who files state information requests in order to build and sell databases of public records. He made an independent claim in this case, based on the “Dormant Commerce Clause” doctrine, which essentially holds that states may not restrict interstate commerce — a sort-of mirror image of the Commerce Clause’s grant of federal authority over interstate commerce. Hurlbert claims that Virginia’s citizens-only law does this. I didn’t discuss this claim because this post is already too long. I find his claim to be creative but less compelling.)
I wonder to what extent the requirement for media to have circulation in Virginia to get access to records has its roots in the days of Jim Crow, when some state didn’t want “outside agitators” poking into their business.