Money Matters: McBurney v. Young Oral Argument Recap

By Chris Simmons

In the 21st century, data is a commodity. Businesses need information to survive, and access to public records is often an integral part to their continued success. However, three states currently limit the availability of records under their state Freedom of Information Acts to their own citizens.

On February 20, the Supreme Court heard arguments challenging the constitutionality of Virginia’s freedom of information law that limits such access to Virginia residents only. The justices did not seem concerned about a fundamental right to public information. Instead, their interest focused on the rights of non-residents to access public records of other states if it affects their business.

The case, McBurney v. Young, challenged the Virginia law. Several non-Virginia citizens sought records through the Virginia Freedom of Information Act, but the commonwealth denied their requests because they were not Virginia citizens.

Deepak Gupta, the attorney challenging the restrictions, argued that Virginia’s law affects not only individuals attempting to access personal information, but also businesses and media that compile public records. One of the challengers to the Virginia law ran an information services business and attempted to access Virginia’s tax assessment records for real estate, but was denied because he was a resident of California. By banning access to out-of-state companies, laws like Virginia’s “disrupt this national information market . . . and aversely interfere with a number of important commercial and government activities,” according to a brief filed with the Court by industries that rely on access public records.

Business could still access the records, but faced barriers to doing so. As several of the justices pointed out, a non-resident of Virginia could still obtain the records if they hired a Virginia resident to request them. Chief Justice John Roberts wondered why the state did not simply allow everyone to access the records if they could get them anyway and Virginia could recoup the costs. “It doesn’t seem like that big a deal,” he said.

Virginia’s State Solicitor General E. Duncan Getchell, Jr. argued in defense of the commonwealth’s law. He stated that there was a cost to maintain and build the database of records. Even though the database already exists for Virginia residents and would not add costs, Associate Justice Antonin Scalia noted that Virginia taxpayers did fund the construction of the information bank. Scalia pondered why the commonwealth could not limit access to benefits from a service created by Virginians. “Is it the law,” he asked, “that the State of Virginia cannot do anything that’s pointless? Only the federal government can do stuff that’s pointless?”

Getchell argued that the law should be upheld because it was not written as a law to affect businesses, but as a civic measure to allow Virginians monitor their own government. Scalia argued that it was okay to limit the records because Virginia only wanted its own residents to “muck” around in its government. Gupta responded to this reasoning, arguing, “You don’t look to uncover the original legislative purpose. You look to whether there is discrimination.”

Gupta also argued that these limitations could not stand because “like lawyers depend on courthouses or truckers depend on roads, [the data collection] industry depends on access to the public archives.”

The challengers to the law argued that these laws run afoul of a constitutional provision known as the Privileges and Immunities Clause. This prevents a state from discriminating against fundamental rights of citizens from other states in favor of its own citizens. The Court has also found under the Constitution’s Commerce Clause that states cannot discrimination against outside citizens in engaged in business in their state.

Getchell opened his argument by saying that the purpose of the statute is political, not commercial. In response to a question from Associate Justice Anthony Kennedy asking if there was no commercial value to the records, Getchell reiterated this claim. “I am totally agnostic on this record because we don’t have any data on that,” he said. “This was not a regulation of commerce, it is a governmental action.”

After the argument, reporter Lyle Denniston of SCOTUSblog suggested Getchell’s refusal to acknowledge that public records have an effect on commerce may be costly. Denniston said he had “put his case in considerable jeopardy by pretending not to know something that most of the Justices seemed to treat as obvious.”

According to The New York Times, an analysis of the Supreme Court under Roberts shows the Court to favor striking down economic regulations, but less likely to vote for people claiming discrimination or violation of their civil rights.

Brian Wolfman, one of the attorneys asking to strike down the restrictions, said after the oral argument that a broader appeal for a right to access information was not needed if the Court would strike down the law due to its effect on business. He thought that the effect on commerce was a stronger argument since the Court has become business oriented.

With the Court becoming more business-oriented in recent years, the law’s challengers seized the opportunity to underscore the law’s unfair impact on business, while Virginia stuck with its original position that the law was a political initiative. If the Court decides to strike the law down as unconstitutional, it will be because the challengers realized how to appeal to this current Court’s economic sensitivities.