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Wednesday, May 29, 2024 | Back issues
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Out-of-Staters Have No Claim to Virginia Files

(CN) - Non-Virginian citizens have no right to request public records from Virginia agencies, the 4th Circuit ruled, upholding the constitutionality of the state's Freedom of Information Act.

Mark McBurney currently lives in Rhode Island, but he was divorced in Virginia and filed for child custody and child support in Virginia. After the Virginia Division of Child Support Enforcement took nine months to file a child-support petition on his behalf, he asked the department to reveal how it processed his petition and why the delay occurred.

Since McBurney is not a citizen of Virginia, however, the agency rejected his request under the state Freedom of Information Act.

Roger Hurlbert, a citizen of California, was similarly denied access to Virginia assessment records of certain real estate parcels. Hurlbert claimed that his business depended on procuring public records for his clients.

In a federal complaint, McBurney and Hurlbert claimed that the state law's "citizens only provision" constitutes impermissible discrimination.

Hurlbert claimed separately that the provision "violates the dormant commerce clause because it grants Virginia citizens an exclusive right of access to Virginia's public records." He argued that it "bars him from pursuing any business stemming from Virginia public records on substantially equal terms with Virginia citizens."

Finding that the law did not infringe on either man's rights, a federal judge in Richmond awarded summary judgment to the officials of Virginia's Child Support Enforcement division and Henrico County's Real Estate Assessment Division.

Several First Amendment watchdog groups and media outlets supported McBurney and Hurlbert in their appeals, but a three-judge panel affirmed the lower court's decision without considering many of these arguments.

Many of the amici "represent different interests than the appellants given that they may fall under the media exception to the VFOIA," Judge Steven Agee wrote for the court, abbreviating the law's name. "Because the contours of the media exception are not at issue with regard to the appellants, we need not consider it, nor do we consider whether amici could raise distinct arguments as to the applicability of the citizens-only provision of the VFOIA to their own situations."

"The VFOIA simply does not regulate Hurlbert's ability to enter into or pursue his trade or profession in Virginia," the 26-page decision states. "At most, the VFOIA limits one method by which Hurlbert may carry out his business and thus has an 'incidental effect' on his common calling in Virginia. But the ease or method of carrying out one's work within a state is several steps removed from the right to work within the state on 'terms of substantial equality' as residents in the first instance."

Furthermore, "while the appellants may well be correct that access to public records is of increasing importance in the information age, that assertion misses the salient inquiry," Agee wrote.

Citing precedent, the court stated that "the Supreme Court's jurisprudence has recognized that states are permitted to distinguish between residents and nonresident so long as those distinctions do not 'hinder the formation, the purpose or the development of a single union of those states. Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the nation as a single entity must the state treat all citizens, resident and nonresident, equally.'" (emphasis in original.)

"Nothing in VFOIA directly or indirectly speaks to the appellants' ability to file a proceeding in any court or otherwise enforce a legal right within Virginia," Agee wrote. "Access to courts has never been interpreted to mean that states must provide individuals with access to public records that may or may not lead to discovery of a potential legal claim. We decline to do so here."

"Although the VFOIA discriminates against non-citizens of Virginia, it does not discriminate against inter-state commerce or out-of-state economic interests," Agee added.

As such, "any effect on commerce is incidental and unrelated to the actual language of VFOIA or its citizens-only provision," the judgment concluded.

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