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Argument preview: How open are public records?

On Wednesday, after the 10 a.m. release of opinions, the Supreme Court will hold one hour of oral argument on a case testing states’ power to restrict public access to the records of their government agencies.  Arguing in McBurney v. Young (docket 12-17), on the side of challengers to a Virginia law,  will be Deepak Gupta of the Washington law firm of Gupta Beck PLLC.  Representing Virginia will be its state Solicitor General, Earle Duncan Getchell, Jr.


When the Founders gathered in Philadelphia in the summer of 1787 to draft the Constitution, one of their worries was that the thirteen states then in existence had been jealously guarding their own residents’ rights and opportunities and putting up barriers to the free flow of citizens and commerce across state lines.   The states were not supposed to do that, under the terms of the existing government structure: the Articles of Confederation.  That document did guarantee that all of the Americans at the time would enjoy the “privileges and immunities” available in each state.  However, that went almost entirely unenforced, because of the weakness of the Articles and the strident independence of the states.

So, James Madison pressed hard for a reaffirmation of the “privileges and immunities” clause in the new Constitution’s Article IV, limiting states’ powers while also protecting some of them.  Although the full meaning of the “privileges and immunities”  clause has never been spelled out by the Supreme Court, the idea behind it is generally understood to be essential to the creation of a “common market'”among the American states.  Its importance has grown as the intensifying mobility of Americans has led them to migrate from state to state, conducting business and other aspects of their modern lives, often doing so at long distance.

Today, American commerce, medicine, journalism and a host of other pursuits rely upon the openness of the digital channels of information, the electronic exchange of data.   With that in the background, the Supreme Court is set to issue what may turn out to be a historic ruling on that flow of data, when the Justices examine access to public records under state law and whether the “privileges and immunities” clause puts some restrictions on states’ control of that access.  The Court also is studying whether the Constitution’s Commerce Clause, too, restricts that power.

Under the “privileges and immunities” clause, a court first determines whether a state law burdens rights or activities that are basic “to the livelihood of the nation.”  Then, if it answers that question yes, it decides whether discrimination that occurs under a state law can be justified by a substantial interest of the state.   Under the Commerce Clause, Congress has broad authority to pass laws regulating trade and commerce among the states, but the courts have found “dormant” within that Clause a ban on states’ discrimination against interstate commercial activity by treating its own residents more favorably than outsiders.

At the center of the new case before the Court are state “freedom of information” (FOI) or “open records” laws.   At one time, at least ten states had FOI laws that restricted access to their agencies’ public records to citizens of their own state.  Seven of those states have since repealed those limitations.  Now, according to critics of such laws, only the states of Arkansas, Tennessee, and Virginia continue to enforce their laws.  Virginia’s law is the one at issue in McBurney v. Young, now before the Court.

Under the Virginia Freedom of Information Act, which dates from 1968, the right to inspect and copy public records is limited to “any citizens of the Commonwealth.”   At one time, citizens seeking access had to show a “personal or legal interest” in the records, but that was taken out of the law in 1974.  Newspapers and magazines that circulate in the state and radio and TV stations located in the state or broadcasting into it from elsewhere are also assured of access.   The state law only applies, the state has argued, to non-judicial records; court records are open to all, including real estate titles, tax files, and court judgment files.   As is true of many open-records laws, the Virginia law requires those seeking access to pay fees to cover the actual cost of search and copying.

That law was challenged in federal court by Mark J. McBurney, a former Virginian who now lives in Rhode Island, and by Roger W. Hurlbert, a Californian.

After McBurney’s former wife allegedly defaulted on an obligation to provide support for their son, he asked the Virginia child support enforcement agency to seek support payments from the boy’s mother while McBurney was living in Australia.   The agency did file that petition.  Believing that the agency was not pursuing the matter diligently, he asked for all records dealing with the child support arrangement between him and his wife.  The request was denied because he did not live in Virginia any longer.  Later, he sent another request for records about the same dispute.  He ultimately did obtain some records, but not all that he had sought.

Hurlbert operates a small California company, Sage Information Services, that obtains public records from real-property assessment officials on behalf of his clients.  He usually obtains those records through state FOI laws.  In 2008, a client hired Hurlbert to obtain tax documents from Virginia’s Henrico County.   Hurlbert’s request was turned down because he was not a Virginia citizen.  Hurlbert claims that he has since ceased any efforts to get Virginia records, and that this has cost him some business.

The two men joined in a lawsuit to challenge the citizens-only provision, claiming violations of both the “privileges and immunities” clause and the Commerce Clause.   When the case reached the Fourth Circuit Court, it ruled that the privileges clause did not even apply, because access to public records is not the kind of activity that bears upon the vitality of America as a single unit.  The two applicants, it found, were seeking only records of importance to them personally.  On the Commerce Clause challenge, the Circuit Court concluded that the law did not bar Hurlbert from doing business in the state, since it restricted only one method of carrying out his business.

The two men then took their case to the Supreme Court.

Petition for certiorari

Arguing that America now has a “burgeoning marketplace for public records,” McBurney and Hurlbert raised the single issue of whether a ban on access aimed at non-residents violates the two provisions of the Constitution.   The petition noted that the Supreme Court “has not grappled with” the meaning of the privileges clause “for decades,” and it argued that this case provided an opportunity to provide some clarity.  In addition, it contended that there is a direct split between the courts of appeals on the specific issue of a state’s exclusion of non-residents from access to public records

On the Commerce Clause argument, the petition said that the Fourth Circuit also created a conflict among lower courts in its ruling that the Virginia law does not discriminate against commerce, as such.  The Supreme Court itself, according to the filing, had ruled that releasing public information into commerce makes it an “article of commerce.”

The petition, although conceding that out-of-state seekers of records could hire an in-state proxy to go after the records for them, argued that this imposes on the non-residents an additional cost that Virginia’s residents do not have to pay.   That, alone, places citizens on unequal footing, depending solely upon where they live, the two men contended.

On the “common market” theory of equal access to residents and non-residents alike, the petition catalogued the kinds of activities that mobile Americans now undertake that depend, as they move and work across state laws, upon quick access to the data in state government files.  The filing contended that “the procurement, compilation, and publication of public records is a major industry,” operating across America, and yet the effect of laws like Virginia’s “is to deny non-citizens the ability to pursue that business within Virginia on equal footing.”

Open access to records, the two men also argued, is of fundamental importance to “real democracy.”

The petition drew the support of a wide array of news organizations and other gatherers and purveyors of information through databases and other channels.

Virginia officials initially waived their right to answer the petition, but the Court then asked for a response last July 30.

The response urged the Court not to hear the case, arguing — as the Fourth Circuit had concluded — that access to a state’s public records is not the kind of activity that is protected under the privileges clause.  “No Court of Appeals, or any other court, it would appear, has held that a non-resident is entitled to commandeer another state’s officials into providing them copies of state public documents in response to a non-resident’s request where the documents are sought to obtain information of a personal import.”

The state’s brief dismissed McBurney as a record-seeker who wanted only to enlist Virginia officials on his side of a legal dispute, and Hurlbert as a businessman who would, at most, feel some burden on one means of pursuing his economic interests.  To bring either of them under the privileges clause, the state contended, would be to “break new ground.”

As to the challengers’ contention that there is now a split among the circuits, the state contended that this is not a “deep or mature conflict.”  The Third Circuit ruling that the two men claim conflicts with the Fourth Circuit decision in their case, the brief said, involved a non-citizen’s right to public documents for use in a “political process on matters of national political and economic importance” — that is, a journalist’s investigative reporting on misconduct by financial institutions.  What McBurney and Hurlbert seek, the reply argued, is “a far cry” from the pursuit that was before the Third Circuit.

On the Commerce Clause side of the case, Virginia argued that the Fourth Circuit was right in concluding that a state’s freedom-of-information law “is not a regulation of interstate commerce at all.”  But, even if it were such a regulation, according to the state, Virginia is entitled to operate as “a market participant” and in that role is free to choose with whom it will deal, and on what terms.

Briefs on the merits

The two challengers’ merits brief opened with two dominant themes: the role of public records as “the raw material” in the information age “for a robust national market,” and the historic pedigree of the two specific kinds of records that the two men were seeking: records of public proceedings (McBurney) ,and real property records (Hurlbert).  The first theme was designed to make more vivid the “common market” argument, and the second to counter the state’s attempt to belittle the social significance of the information the two men were pursuing.

On the first, the brief argued: “From dusty ledgers in rural courthouses to centralized computer servers, public records from all 50 states are gathered, sold, aggregated, mined and resold for countless purposes…It is no exaggeration to say that the free flow of this information across state lines helps constitute our Nation as one.”

In discussing the historic background of public access, the brief puts real property records first, even though all the briefs list Hurlbert as the second party, after McBurney (by custom, the case will always be known by McBurney’s name).  There is no obvious explanation for that switch, but it may have been done because keeping records of property transactions was unique to the American colonies, while records of public proceedings reach back into English history, to at least the reign of Edward III in the fourteenth century. That might well give the brief, in its opening pages, a more direct link to the Founders. Not by coincidence, moreover, the discussion of “the American recording system’s origins” is traced to Virginia, and its Jamestown settlement, thus seeking to put to shame the modern Virginia’s limitation on access to such documents.

The challengers’ brief devotes six of its opening pages to this history before turning to the facts.  The factual recital, too, puts Roger Hurlbert’s situation first.  It is clear by now that the brief’s writers believe that puts forward their best scenario.

When the brief turns to legal argument, it has an unheralded addition, not part of the question the Court has agreed to hear.   Besides arguing the privileges and Commerce clauses, the brief also discusses a claim that Virginia’s limitation on access to records violates the Constitution’s Full Faith and Credit Clause.   Those three provisions, the brief summed up, represent the effort of the Founders “to end the favoritism that had plagued the Articles of Confederation and instead ‘fuse into one Nation a collection of independent, sovereign States,’” quoting from a 1948 Supreme Court ruling.

The brief presented the Commerce Clause arguments first, claiming that even Virginia had conceded that its records access law discriminates against non-Virginians “on its face.”   In going over the business-related argument, the brief suggested that Virginia was, in fact, seeking to “divert work to Virginians that might  be carried out more efficiently by non-Virginians,” thus accomplishing a stifling of competition, causing a rise in prices, and leading to “economic Balkanization – the very effects the Framers sought to avoid.”

The argument on the privileges clause focuses on the Constitution’s veneration of property rights, treating the discriminatory access to public real estate records as denying non-Virginians the opportunity to secure their property rights and thus to allow them to engage in acquiring and enjoying property.

The defense of McBurney’s right to be on an equal footing in obtaining public proceeding records is based in the brief on the concept of a transparent and open government.   But this branch of the brief suggested that McBurney’s property rights were at risk, as Hurlbert’s are, because denying access to child support records “burdens his right to enforce debts on equal terms.”

The Full Faith and Credit Clause argument is keyed in the brief to a belief among the Founders that “the movement of public records across state lines was ‘fundamental to the promotion of interstate harmony’” – quoting a 1978 Supreme Court decision.

The brief is wrapped up with an argument against a claim by Virginia that giving non-Virginians access to information would reduce resources available for Virginians.   Non-Virginians, like those who live in the state, would pay the same costs as residents for the retrieval of records they seek, the brief noted.   And, the document added, giving outsiders access to copies of Virginia records would not deplete those records as a resource, in a way that giving outsiders access to limited natural resources in the state might.

Virginia’s brief on the merits opened with a suggestion that, in fact, non-Virginians seeking access to public records of state agencies would not be paying equally with residents.   Outsiders only pay for the cost of search and copying, while the taxpayers of Virginia in addition must cover “the general costs associated with creating or maintaining records” or the costs of carrying on the public agencies’ business that is reflected in those records.

Next, the brief turned to a reiteration of the factual argument that McBurney and Hurlbert were denied access only to records “they deem useful to their personal interests.”

In addressing the constitutional claims, the state’s brief asserted that McBurney had no privileges clause claim because he was not being denied access to Virginia’s courts, but rather was only being denied an opportunity to turn the privileges clause into “a mechanism for pre-lawsuit discovery.”

As to Hurlbert, nothing prohibits him, the state’s brief reiterated, “from a common calling.”  At most, he is being denied one mode of pursuing his business interests in real property transactions.

Both men, the document said, were seeking to have the Court recognize for the first time a “generic right” to “pursue their economic interests on equal footing.”  Echoing the finding of the Fourth Circuit, the brief said that, if there is any such right under the privileges clause, it is not offended by Virginia’s law.

The brief dismissed the recitation in the McBurney-Hurlbert brief of the history of recording titles as “entirely beside the point,” noting that those records are expressly exempted from the non-citizens bar in the state law, so anyone can access them from a remote connection.  Hurlbert was not seeking those records, but rather real estate tax assessment files. it said.  McBurney was not seeking records of court proceedings, but general policy information about how a state agency handles child support cases.  McBurney, it added, could get the information he wanted from the agency’s website.

The state defended its freedom-of-information law as having particular value to Virginians as a class, because it was passed “to enhance political participation in a state’s polity.”   Moreover, the brief said, this was a law of “recent vintage,” thus presumably making the McBurney-Hurlbert recitation of lengthy history under the privileges clause seem irrelevant.

Similarly, the state’s argument under the Commerce Clause was that the state was not regulating commerce at all in the statute, but only “the provision of a state service that furthers political participation.”  That, it suggested, is what a state does – “serve the citizens of the state.”

As at the petition stage, the McBurney-Hurlbert side is supported by a variety of media organizations and trade groups representing database and other information aggregating companies.  Other amici are civil liberties groups, and advocacy organizations pursuing libertarian causes.

The state drew the support of associations of state legislatures and governments at state and local levels, as well as a number of Virginia municipal and school board organizations.


The outcome of this case probably depends predominantly on whether the Justices see it as a historic test of national economic consequences, with philosophical roots going back to the Founding, or as a mine-run test of a state’s power to make itself transparent and accountable to its own political constituency, when it is confronted by outsiders pursuing selfish interests.   That is the vivid alternative that the briefs lay before the Court.

The record-seekers have done all that they probably could to portray themselves as victims of a narrow protectionist state that is living today in an Articles of Confederation time capsule.  And, knowing that this is a Court that sees itself as the special guardian of America’s founding ideas in their original form, they have wrapped their case fully in basic constitutional principles.

Virginia has made a concentrated effort to pare down the significance of this controversy, by suggesting that the case has very little to do with grand constitutional principle – other than serving a state’s own democratic polity – and perhaps has even less to do with commercial dealings that span the nation.

If the Court were inclined to reach a minimalist decision, Virginia offers it the easiest option.  But this may well be a case that the Court accepted for review with a grander vision, and that clearly pulls it toward the arguments of McBurney and Hurlbert.

This case, made simple:

The states and the federal government have joined in a modern movement to make government more transparent by passing open-records laws, usually called “freedom of information acts.”  Very few of the states, however, have restrictions in their records laws that open them only to citizens of those states.  That limitation has led to a constitutional controversy, over whether the national Constitution prohibits states from treating their citizens more favorably than they do outsiders in access to records generated by state agencies.

That limitation is included in a Virginia state law that dates to 1968.  That law was upheld by a federal appeals court, based in Richmond, Virginia, on the theory that it did not interfere with any constitutional right of non-Virginians to engage in activity of a kind that unites the nation in commercial or civic harmony, and did not seek to regulate any activity that is economic in nature — or at least did so only in a minimal way.

Two non-Virginians have taken the dispute to the Supreme Court.  One was denied access to records of a child support arrangement he had with his former wife; he had formerly lived in Virginia.  The other was a businessman who was denied access to real property tax assessment records that one of his business clients wanted.  The Court agreed to hear their claims that two, and possibly, three provisions in the Constitution are violated by such denials, based on where the records-seekers live.  In deciding the dispute, the Supreme Court may be led back to America’s Constitutional Convention, and some of the nation-building ideas that the Founders applied then.


Recommended Citation: Lyle Denniston, Argument preview: How open are public records?, SCOTUSblog (Feb. 18, 2013, 12:03 AM),