Wednesday, October 4, 2023
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Out-of-Staters Take Info Access Dispute to D.C.

WASHINGTON (CN) - Non-Virginian citizens who have been barred from accessing public records from Virginia agencies will take their fight to the Supreme Court.

Mark McBurney currently lives in Rhode Island, but he was divorced in Virginia and filed for child custody and child support there. 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'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 the 4th Circuit affirmed summary judgment in February 2012 without considering many of these arguments.

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," Judge Steven Agee wrote for a three-judge panel. "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, abbreviating the law's name. "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.

The Supreme Court agreed Friday to take up the case. It will consider whether Virginia's law is proper under the privileges and immunities clause of Article IV and the dormant commerce clause of the U.S. Constitution.

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