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