Office of Information Practices

The United States Supreme Court unanimously ruled that Virginia’s Freedom of Information Act (FOIA) did not violate the U.S. Constitution by granting state citizens, and not non-citizens, the right to access state public records. In McBurney v. Young, 569 U.S. __ (2013), decided on April 29, 2013, the Court held that Virginia’s FOIA did not violate any fundamental rights under the Privileges and Immunities Clause and did not impermissibly regulate interstate commerce in violation of the U.S. Constitution. Significantly, the Supreme Court declared that it “has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”

In the opinion written by Justice Alito, the Court rejected the argument that Virginia’s FOIA violated the Privileges and Immunities Clause by providing a competitive economic advantage for Virginia citizens who trade in information contained in state records. Rather, the court concluded that the law had a “distinctly nonprotectionist aim” of providing a mechanism by which Virginia’s citizens “may obtain an accounting from the public officials to whom they delegate the exercise of [sovereign] power.” Additionally, the Court stated that “the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth.” The Court also rejected a separate argument that Virginia’s law regulates or burdens the free flow of interstate commerce, instead finding that the law “merely provides a service to local citizens that would not otherwise be available at all.” The Court reasoned that even if there was a “market” for public documents in Virginia, it was a market for a product created and solely manufactured by the Commonwealth, which did not violate the dormant Commerce Clause by limiting the benefits of that “state program to those who fund the state treasury and whom the State was created to serve.”

In rejecting other constitutional arguments, the Court reasoned that Virginia did not prevent non-citizens from obtaining public documents and noted that the non-confidential records at issue were readily available on-line. Moreover, the Virginia FOIA did not deprive non-citizens of reasonable and adequate access to the courts, as non-citizens had equal access to judicial records and documents needed in litigation were available through discovery and subpoenas.

While the Virginia Attorney General’s office hailed the Court’s decision as “a win for Virginia’s taxpayers,” media and open government groups have widely criticized the opinion. State laws restricting non-citizens’ access to public records also exist in Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey, and Tennessee. Hawaii’s Uniform Information Practices Act, HRS Chapter 92F, contains no such restriction.

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