McBurney v. Young
U.S. Supreme Court, No. 12-17, 4/29/2013
The following summary is based on an opinion of the U.S. Supreme Court. Opinions of the U.S. Supreme Court are binding on issues of federal law in New Hampshire.
Plaintiff Mark McBurney was a former resident of Virginia. Following his divorce and relocation to Rhode Island, his former wife did not pay child support as ordered. He sought assistance from the Virginia Division of Child Support, but enforcement was delayed for a period of nine months. He sought information regarding the processing of his case under the Virginia Freedom of Information Act (FOIA), but was denied because he was no longer a Virginia resident.
Plaintiff Roger Hurlbert is a resident of California, and operates an internet-based information service. He sought real estate and tax records on his client’s behalf. His request to obtain county tax records under the Virginia FOIA was denied because he is not a Virginia citizen.
Both individuals sued in the federal district court in Virginia. Following trial and appeal to the Fourth Circuit Court of Appeals, the lower courts held that Virginia’s statute limiting the production of governmental records to Virginia citizens was constitutional. The United States Supreme Court agreed to review the matter because the Third Circuit Court of Appeals had determined in an earlier case from Delaware that a citizen-only provision violated federal constitutional principles, and there was a need to resolve the conflict between the Circuits.
In a unanimous (9-0) opinion written by Justice Alito, the Court rejected the argument that Virginia’s statute violated the “privileges and immunities” clause of the federal Constitution. That provision was included by the founders to insure that citizens of the different states are treated the same as they move and do business across state lines. The clause does not, however, protect every activity of every person, but instead is limited to the protection of “fundamental” activities.
Mr. Hurlbert argued that the citizen-only provision violated the Constitution because it made it more difficult for him to conduct his business. The Court rejected this argument, indicating the purpose of the Virginia FOIA was to provide access to records created by and for the citizens of Virginia, and was not intended to burden individuals residing out of state. Importantly, Mr. Hurlbert was not completely denied access to the information; he was only prohibited from using the state FOIA as the means to gain access. For example, all of the real estate information he sought was freely available for inspection at public offices in the county, and if copies were desired, they were available for purchase.
As to Mr. McBurney, the Court made similar findings. He was not prevented from using the courts of Virginia to prosecute his claims for past due child support; instead, he was just prevented from using the Virginia FOIA as a means to gain information about the processing of his case. All of the information sought was available to him either from judicial records, or by using the rules of discovery in the prosecution of a civil claim.
The opinion is important to all states that have a version of a Freedom of Information Act. In New Hampshire, we have the “Right to Know Law”, and the Supreme Court’s opinion explicitly noted that we are one of seven states other than Virginia to limit access to governmental records to our citizens. See RSA 91-A:4. Here are some important points to take from the opinion:
A. There is no fundamental right guaranteed to everyone in the country by the Privileges and Immunities Clause of the United States Constitution to access governmental records. Rather, the right to access such records is a relatively recent addition to federal law, based in the federal Freedom of Information Act first enacted by Congress in 1966.
B. Individual state Freedom of Information Acts are a mechanism by which the citizens of each such state may obtain an accounting from the public officials to whom they delegate the exercise of their sovereign power. In other words, these laws are intended to provide citizens of a state access to information about what their own state and local governments are doing.
C. State Freedom of Information Acts do not violate the U.S. Constitution by regulating how access to public records may be obtained by non-citizens of the state, so long as there exists some means by which access may be obtained.
D. The provisions in state Freedom of Information laws limiting access to citizens of that state recognize that the taxpayers of that state “foot the bill for the fixed costs of recordkeeping and record production,” and do not violate the U.S. Constitution by preventing citizens of other states from making a profit by trading in the use of that information.
In New Hampshire, we do not yet have a ruling from our Supreme Court as to the meaning of the word “citizen” in the context of the Right to Know Law, and the word is not a defined term in RSA 91-A:1-a. Thus, we cannot yet say with certainty how our courts, or our legislature, will define or construe the meaning of the term “citizen” for this purpose. For now, the focus when responding to requests for governmental records should remain on the obligation to meet the purpose and intent of the law. That purpose, as expressed in RSA 91-A:1, is “to ensure the greatest possible access to governmental records.” What does seem clear as a result of this United States Supreme Court ruling is that the duty to provide access to governmental records is based solely in RSA Chapter 91-A, and that a refusal to provide information electronically in response to requests that originate out of state will not violate any federal law.
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