ICMA signed onto an amicus brief filed by State and Local Legal Center (SLLC) in a U.S. Supreme Court case involving the constitutionality of a provision of Virginia’s Freedom of Information Act (VFOIA) which requires that only citizens of the Commonwealth have access to public records. The SLLC’s brief in McBurney v. Young argues that VFOIA’s “citizen’s-only” provision violates neither the U.S. Constitution’s Privileges and Immunities Clause nor the dormant Commerce Clause. Seven states public records laws have “citizen’s-only” provisions.

Mark McBurney, a citizen of Rhode Island, requested records related to Virginia Division of Child Support Enforcement’s handling of child support cases when one spouse lives abroad. Roger Hurlbert, a citizen of California, operates a business requesting real estate tax assessment records and sought such records for parcels in Henrico County, Virginia.  Both were denied access to records because they aren’t Virginia citizens.      

The lower court concluded that while “fundamental rights” protected by the Privileges and Immunities Clause include the ability to practice a trade or profession and access to the courts, neither Hurlbert’s nor McBurney’s rights were unduly burdened. According to the lower court, VFOIA doesn’t discriminate against noncitizens of Virginia on the basis of interstate commerce in violation of the dormant Commerce Clause because VFOIA concerns access to Virginia records to avoid secrecy in government and is “wholly silent” on commerce and economic interests.

The SLLC’s brief argues that while state and local governments generally favor public records laws, administering them is costly and burdensome. The brief points out that the central purpose of VFOIA is to enable Virginia citizens to observe their government in operation and to hold their public officials accountable. The SLLC’s brief argues that Virginia’s “citizens-only” provision does not violate the Privileges and Immunities Clause because access to non-judicial records isn’t a fundamental right. Finally, the SLLC’s brief argues that Virginia has exercised a traditional governmental function in determining the extent to which it will make its own governmental records accessible to its citizens, so the dormant Commerce Clause doesn’t apply.

Oral argument will be heard in this case on February 20, 2013. The Supreme Court will issue an opinion in this case by June 30, 2013.