Article IV Privileges and Immunities Clause-State Freedom of Information Laws

Harvard Law Review, November 2013 | Go to article overview

Article IV Privileges and Immunities Clause-State Freedom of Information Laws


The Article IV Privileges and Immunities Clause (1) provides individuals with a guarantee of comity across state lines for rights that are "fundamental" to citizenship. (2) The Supreme Court generally applies a two-step test to determine whether a state citizenship classification violates the Privileges and Immunities Clause: First, the Court determines whether the activity on which the classification infringes is "sufficiently basic to the livelihood of the Nation." (3) Second, "if the challenged restriction deprives nonresidents of a protected privilege, [the Court] will invalidate it only if [the Court] conclude[s] that the restriction is not closely related to the advancement of a substantial state interest." (4) Courts have recognized a "sovereign identity exception" to the Privileges and Immunities Clause, (5) whereby states may distinguish between citizens and noncitizens at least with respect to voting and holding public office because states have a substantial interest in defining their political communities. (6) But determining whether the sovereign identity exception extends to other political rights has largely been an academic exercise. (7)

Last Term, in McBurney v. Young, (8) the Supreme Court rejected a challenge to Virginia's citizens-only Freedom of Information Act (FOIA) and held that there was no fundamental right to access public records under the Privileges and Immunities Clause. (9) The Court granted certiorari in McBurney to resolve an apparent split between the Third Circuit, which had struck down Delaware's citizens-only FOIA restriction, (10) and the Fourth Circuit, which had upheld Virginia's parallel statute. (11) However, the Court passed on its opportunity to explicitly address the theory advanced both by Delaware in the Third Circuit and by Virginia before the Court: that public-records access fits within the sovereign identity exception to the Privileges and Immunities Clause. The resulting doctrinal confusion threatens to leave states and lower courts with a lack of clarity over the extent of a state's authority to reserve political rights to its citizens alone.

Mark McBurney is a citizen of Rhode Island, and his ex-wife is a citizen of Virginia. (12) After the Virginia Division of Child Support Enforcement delayed nine months before satisfying his request to file a petition for child support on his behalf, McBurney submitted a Virginia Freedom of Information Act (13) (VFOIA) request seeking documents pertaining to his family, his application for child support, and the agency's handling of similar claims. (14) Roger Hurlbert is a citizen of California and the sole proprietor of a business that requests real estate tax records for its clients. (15) Pursuant to a request from a land/title company, Hurlbert filed a VFOIA request with the Henrico County Real Estate Assessor's Office. (16) VFOIA provides access to Virginia's public records to "citizens of the Commonwealth," (17) but does not grant similar access rights to noncitizens. (18) Therefore, the requests by both McBurney and Hurlbert were denied because neither man was a Virginia citizen. (19)

McBurney and Hurlbert filed a complaint in the Eastern District of Virginia seeking declaratory and injunctive relief under 42 U.S.C. [section] 1983 from enforcement of VFOIA's citizens-only provision. (20) Both plaintiffs alleged violations of their rights under the Privileges and Immunities Clause, and Hurlbert filed a separate claim challenging the application of VFOIA as a violation of the dormant commerce clause. (21) After the Court of Appeals for the Fourth Circuit reversed the district court by holding that McBurney and Hurlbert had standing, (22) the district court heard the case on remand and the parties cross-moved for summary judgment. (23) The district court concluded that VFOIA neither abridges any of the plaintiffs' rights under the Privileges and Immunities Clause nor (24) violates the dormant commerce clause, and accordingly granted the defendants' motions for summary judgment. …

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