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Virginia FOIA Law Can Exclude Noncitizens

WASHINGTON (CN) - Virginia can restrict outsiders from using state law to access the public records of its agencies, the U.S. Supreme Court ruled.

The issue stemmed from a complaint brought by two men who said Virginia discriminated against them by enforcing the citizens-only provision of its 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 there. After the Virginia Division of Child Support Enforcement took nine months to file a child-support petition on his behalf, he made an unsuccessful bid for the department to reveal how it processed his petition and why the delay occurred.

Roger Hurlbert, a California business owner who scours national real estate tax records for his clients, was likewise denied access to Virginia assessment records of certain property parcels. He made a separate claim in the action under the dormant commerce clause.

A federal judge in Richmond, Va., nevertheless found that the law did not infringe on either man's rights and granted 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 also sided with Virginia in 2012.

After taking up the case, the unanimous Supreme Court affirmed Monday as well.

"By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity," Justice Samuel Alito wrote for the court. "Nor did Virginia violate the dormant commerce clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship."

The ruling notes that Virginia's law aims to give its citizens a mechanism to hold their public officials accountable while also honoring the fact "that Virginia taxpayers foot the bill for the fixed costs underly­ing recordkeeping in the commonwealth."

"The challenged provision of the state FOIA does not violate the privileges and immunities clause [of the U.S. Constitution] simply because it has the incidental effect of preventing citizens of other states from making a profit by trading on information contained in state records," Alito wrote. "While the clause forbids a state from intentionally giving its own citizens a competitive advantage in business or employment, the clause does not require that a state tailor its every action to avoid any incidental effect on out-of-state tradesmen."

Such a claim might be supported if Virginia had "prevented out-of-state citizens from accessing records - like title documents and mortgage records- that are necessary to the transfer of property," the ruling states.

"Virginia, however, does not prevent citizens of other states from obtaining such documents," Alito added.

Circuit court clerks can furnish these records, Henrico County even publishes its real estate tax assessment records online.

"Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens' ability to own or transfer property in Virginia," Alito wrote.

Noncitizens likewise still have access to the courts, according to the ruling, which notes that McBurney ultimately received much of the information that he sought by placing his request under the Government Data Collection and Dissemination Practices Act.

Lastly, noncitizens do not have a sweeping right "to obtain all of the information provided by FOIA laws," the court found.

"FOIA laws are of relatively recent vintage," Alito wrote. "The federal FOIA was enacted in 1966, and Virginia's counterpart was adopted two years later. There is no contention that the nation's unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted."

The justices found the commerce clause question misplaced and unsuccessful in any event.

"Insofar as there is a 'market' for public documents in Virginia, it is a market for a product that the commonwealth has created and of which the commonwealth is the sole manu­facturer," Alito wrote. "We have held that a state does not violate the dormant commerce clause when, having created a mar­ket through a state program, it 'limits benefits generated by [that] state program to those who fund the state treas­ury and whom the state was created to serve.'"

In a separate paragraph concurring in the opinion, Justice Clarence Thomas quoted his previously stated problems with the commerce clause.

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