McBurney v. Young
At issue is whether a state freedom of information law can discriminate between state citizens and non-citizens by granting a right of access to public documents only to citizens of that state.
This case challenging the Virginia FOIA citizens-only provision was brought by Mark McBurney and Roger Hurlbert. McBurney is a former resident of Virginia whose divorce and child custody proceedings took place in Virginia courts. After experiencing problems with the Virginia Department of Child Support Enforcement, McBurney filed a Virginia FOIA request for documents reflecting the policies, guidelines, and other law relied on by the Virginia agency in handling cases where one parent is overseas, but his request was denied because he is not a citizen of Virginia.
Hurlbert is a resident of California who owns and operates a nationwide records retrieval business. On behalf of a client, Hurlbert requested real property tax assessment records from Henrico County, Va. His request was denied because he is not a citizen of Virginia. Because of Virginia FOIA’s citizens-only provision, Mr. Hurlbert no longer operates in the state and has lost business as a result.
State FOIAs are critical tools for exposing government and corporate wrongdoing, and, in particular, to revealing national patterns of misconduct. Restricting the right of access to citizens of the state to which the FOIA request is made curtails the ability of lawyers, journalists, and others to gather necessary information.
The defendants — heads of the Virginia state agencies that had denied the requests for information — sought to dismiss the case on the basis that the plaintiffs lacked standing. The district court granted the motion to dismiss. On appeal, the Fourth Circuit reversed, holding that the plaintiffs had standing, and remanded for a decision on the merits. On remand, the district court held that the citizens-only provision did not violate the Constitution. The plaintiffs appealed again, and the Fourth Circuit affirmed. Because the Fourth Circuit’s decision created a circuit split with the Third Circuit as to whether citizens-only provisions in state FOIA laws are constitutional, the plaintiffs sought certiorari in the Supreme Court.
The Supreme Court heard oral argument on February 20, 2013.
McBurney is consistent with Public Justice’s court secrecy work. Although the case does not directly involve court records, access to documents and information held by other branches of state government is critical for many of the same reasons. Public Justice’s brief was written by Kazan-Budd Attorney Leah Nicholls, with input from Staff Attorney Leslie Bailey.
- Leslie Bailey
Amici brief of the Impact Fund, Public Justice, et al.