Focusing public attention on emerging privacy and civil liberties issues

McBurney v. Young

Concerning the Constitutionality of State FOI Disclosure Restrictions for Non-Residents

Latest News

  • Supreme Court Upholds Residents-Only Provision in Virginia Open Records Law: The Supreme Court ruled today that Virginia's freedom of information law, which allows only Virginia residents to pursue open government requests, does not violate the U.S. Constitution. Petitioners argued that the law impermissibly burdened out-of-state residents ability to provide open records services to clients, to purchase and transfer Virginia property, to access Virginia court proceedings, and to access important public information. But the Court found in McBurney v. Young that the majority of state records were available to non-residents in some form and that there was no fundamental "right to access public information" at the time the Constitution was adopted. EPIC and other open government groups filed a amicus brief arguing that residents-only provisions limit public access to information necessary for political advocacy. In 2008, EPIC obtained documents from Virginia revealing an agreement to limit oversight of a state fusion center. For more information, see EPIC: McBurney v. Young and EPIC v. Virginia Department of State Police: Fusion Center Secrecy Bill. (Apr. 29, 2013)
  • Supreme Court to Hear Challenge to Restrictive State FOI Law: The Supreme Court has agreed to hear a case, McBurney v. Young, challenging a Virginia state open government law that restricts access to residents and new media organizations operating within Virginia. Petitioners are out-of-state residents whose requests for state documents under the Virginia Freedom of Information Act were denied. The case presents the important issue of whether states can discriminate against non-residents by denying them access to state records. EPIC filed an amicus brief along with several open government organizations urging the Court to hear this case. For more information, see: EPIC: Open Government. (Oct. 5, 2012)
  • EPIC and Others Ask Supreme Court to Review Controversial State FOI Law: EPIC, and several other leading open government organizations, have filed an amicus brief in support of a petition for Supreme Court review challenging the Virginia Freedom of Information law, which allows only Virginia residents and news media representatives to access state public records. The amicus brief argues that Virginia's "citizens-only" provision is constitutionally impermissible as it unecessarily burdens the rights of individuals and organizations outside of Virginia. This case is of particular interest to EPIC because state FOI laws are often necessary for oversight of new surveiilance programs. In 2008, EPIC brought a successful FOIA lawsuit in Virginia and obtained documents revealing an agreement to limit oversight of a State Fusion Center. For more information, see EPIC: v Virginia Department of State Police: Fusion Center Secrecy Bill. (Aug. 30, 2012)

Questions Presented

  • Whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens.

Background

Petitioners in this case argue that the Virginia Freedom of Information Act's citizens-only provision, Va. Code. Ann. § 2.2-3074(a), violates the Privileges and Immunities Clause and the dormant Commerce Clause of the U. S. Constitution. art. IV, § 2. The VFOIA only guarantees access to state records to "citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth" and representatives of television and radio stations. Va. Code. Ann. § 2.2-3700 et seq.. At the Certiorari stage, EPIC and other amici argued that "citizens-only provisions have a real, detrimental impact on noncitizens' fundamental rights. These rights include the right to pursue common callings, reside and purchase property in other states, and participate in political advocacy."

EPIC's Interest in McBurney v. Young

EPIC pursues numerous Freedom of Information Act cases with federal agencies and also publishes a leading FOIA manual, Litigation Under the Federal Open Government Laws. EPIC has litigated FOIA cases under the Virginia open records law. As a result, EPIC is intimately familiar with the freedom of information law at the heart of this lawsuit—including the citizens-only provision—and is well-suited to aid the Court in considering its constitutionality. The Electronic Privacy Information Center has used state records to monitor both state and federal government activities, bringing to light controversial practices of national significance. EPIC’s investigation of the Virginia Fusion Intelligence Center is a case in point.

Legal Documents

United States Supreme Supreme Court

Court of Appeals for the Fourth Circuit

Resources

Pages

Relevant Precedent

  • Supreme Court and Appellate Court Cases
    • Lee v. Miller, 458 F.3d 194 (3d Cir. 2006)

Relevant Law Review Articles, Reports, and Books

News Reports