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Opinion recap: Only one argument needed


Virginia went to the Supreme Court with one argument, and only one, for its policy of limiting access to state public records to people who live in Virginia.  That did not seem to work well at the argument in February, but that is not the test that counts.  The Court decided the case Monday, and Virginia won unanimously — primarily on its chosen argument.

The Court, in a decision written by Justice Samuel A. Alito, Jr., upheld the power of a state to limit records access to state residents, on the theory that this gives those individuals some help in monitoring the performance of state government agencies.  The case was McBurney v. Young (docket 12-17).


Vote in McBurney v. Young; opinion author boxed in red.

Public records are a valuable source of information, especially in the digital age, when information not only drives commerce, but many other kinds of human endeavor.  But the Court paid scant attention in its final ruling to the commercial side of records access, opting to keep its focus on a state’s choice to help its citizens keep track of how their public agents are performing.  That was what Virginia’s lawyer had relied upon in February, confessing that he was “agnostic” on any other possible implication of the state’s freedom-of-information law.

Two individuals from out of state — a Rhode Islander caught up in a child support case in Virginia and a Californian whose business depended on access to tax records — had challenged Virginia’s resident-access limitation, contending that it violated both the Constitution’s Privileges and Immunities Clause and its Commerce Clause.

Saying that the case should not be analyzed under the Commerce Clause, the Court said the restriction “does not regulate commerce in any meaningful sense.”

Turning to the other claim, the Court rejected it on the merits, concluding that the Privileges and Immunities Clause is only a limitation on state laws that are passed “for the protectionist purposes of burdening out-of-state citizens.”  Virginia’s law does not do that, because it was designed to provide “a service that is related to state citizenship.”

The law, Justice Alito wrote, “represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power.”  Its only effect on out-of-staters is merely “incidental.”

But, as an added reason for allowing the restrictions, the opinion said that Virginia’s citizens “foot the bill for the fixed costs underlying recordkeeping” by the state.

Most of the reasoning of the Alito opinion on the Privileges and Immunities Clause broke no new ground.  But the ruling also went to some lengths to reject the specific claim that it violates that Clause for a state to deny equal access to public information.  The Clause, it said, does not even apply to such a “broad right.”

When government chooses to open up its records, it does that by choice, not by constitutional compulsion.  “There is no constitutional right to obtain all the information provided by” freedom-0f-information laws.  No such broad right was recognized under the common law, and early American history does not support that notion, either.

Finally, it said such a broad right is not necessary “to the maintenance and well-being of the Union.”   The federal government only passed such a records-access law in 1966, the opinion noted, and Virginia did so two years after that.   “The Nation’s unity” did not suffer before such laws existed, Justice Alito commented.

The Court noted that at least seven other states have laws similar to Virginia’s in favor of resident access to public document files.

All nine Justices joined in the Alito opinion.  Justice Clarence Thomas wrote a one-paragraph concurring opinion, to repeat his argument that the Court should stop deciding Commerce Clause questions on the basis of what is called the “dormant Commerce Clause” — that is, the understanding that, in addition to granting Congress power to regulate commerce, the Clause also silently forbids states to engage in discrimination against interstate commerce.

This decision, in plain English:

Virginia is one of eight states that assure the public will have access to records made by state agencies in carrying out their public duties, but each of those states’ laws restricts such access to those who actually live in the state.   The passage of such “public information laws” is something that began about in the middle of the last century.   Only Virginia’s law, with its residents-only restrictions, was at issue in the decision the Court released on Monday.

The decision was unanimous in upholding that limitation.  Virginia’s legislature did not pass the law with the aim of interfering with business activity for out-of-state residents, the Court ruled.   Rather, it said, the law was passed to improve the opportunities of the people of the state to monitor how their own government carried out its public duties.   As a secondary reason for the ruling, the Court said that those records are maintained by the state with the money provided by its residents as taxpayers.

The decision did not rely upon any sweeping new legal declaration, but simply on the purpose that the Court found behind Virginia’s law.


Recommended Citation: Lyle Denniston, Opinion recap: Only one argument needed, SCOTUSblog (Apr. 29, 2013, 12:16 PM),