Recap of yesterday’s argument in McBurney v. Young
By Leah Nicholls, Kazan-Budd Attorney
Yesterday morning, I attended oral argument at the Supreme Court in McBurney v. Young. The case is about whether Virginia can permit only state citizens to access state records under Virginia’s freedom of information law.
Under the law, out-of-staters are out of luck. Virginia is one of only three states with such a citizens-only policy, and the policy is an obstacle for researchers, activists, journalists, attorneys and anyone else seeking information about how the state operates or how corporations that file documents with the state operate.
Public Justice submitted an amicus brief supporting the petitioners’ right to access Virginia FOIA docs. My colleague Leslie Bailey and I wrote our brief. (Pictured, from left to right, are Leslie, Matt Wessler and me, after Matt argued a different case before the Supreme Court last fall.)
I previously handled McBurney when I was an attorney in a Georgetown Law clinic. No question it’s a tough case to win. There are excellent legal arguments why the citizens-only provision violates the anti-discriminatory principles of the Privileges & Immunities Clause of Article IV and dormant Commerce Clauses, but first the petitioners have to persuade the Court to put the provision through the constitutional wringer.
One opinion has it that the provision just isn’t commerce or doesn’t actually impact any fundamental right protected by the Privileges & Immunities Clause; in reality, commercial requesters make up a huge part of those requesting records. But there’s still a sense that’s just not what freedom of information laws are about.
On the flip side, Virginia does not actually put forward any good reason for its discriminatory policy.
Deepak Gupta of Gupta Beck argued on behalf of the petitioners, and he did a great job, focusing on access to state information being like access to roads and courthouses: a state is the only institution that maintains them, but it can’t prohibit out-of-staters from using them. He was aggressively questioned right away by Justice Scalia, whom no one anticipates will strike down the citizens-only provision. Justices Kennedy and Breyer appeared to appreciate the extent of the commercial market for information, and Chief Justice Roberts and Justice Breyer asked tough hypotheticals that required Gupta to draw a line between this and instances where states can clearly discriminate, such as in who can vote. The justices seemed primarily interested in the dormant Commerce Clause argument, but Justice Ginsburg asked a few questions about the Privileges & Immunities Clause (after noting that the statute isn’t about commerce).
State Solicitor General Duncan Getchell argued on behalf of Virginia, and he faced tough questions from several justices — primarily Justice Sotomayor — about why Virginia has this discriminatory policy. He also told Justice Kennedy that he was “agnostic” as to whether there was a commercial market for this information, and Kennedy said that the Court could take judicial notice of that fact.
Overall, both advocates faced a tough bench. It was impossible to count to five on either side, so we’ll just have to wait and see!