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Virginia's FOIA Ruled to Not Violate Some Constitutional Guarantees

In a case brought under 42 U.S.C. 1983, the U.S. Court of Appeals for the Fourth Circuit has ruled that the Virginia Freedom of Information Act (VFOIA), Section 2.2-3700 et seq. (2011), "does not violate the Appellants' rights under the Privileges and Immunities Clause (U.S. Const. art. IV, Section 2, cl. 1) or...rights under the dormant commerce clause of the United States Constitution."

One of the plaintiffs, Mark J. McBurney, a resident of Rhode Island, who sought information under VFOIA regarding a child support matter which involved his ex-wife, who was making payments through the Virginia Division of Child Support Enforcement (DCSE). The DCSE denied this request, stating that the information was confidential and protected and because McBurney was not a citizen of Virginia.

Plaintiff Roger W. Hurlbert was a citizen of California, and the sole proprietor of Sage Information Services, which sought real estate tax assessment records for his clients from state agencies across the United States, including Virginia. His VFOIA request for assessment records for certain real estate parcels in Henrico County, Virginia, was also denied because he was not a citizen of Virginia.

According to the district court, the Appellants failed to show that VFOIA's citizens-only provision burdened a fundamental right protected by the Privileges and Immunities Clause, and that access to government information and advocacy for one's own economic interests was a concept that did not fall within the meaning of this clause. The district court also noted that although Hurlbert engaged in a "common calling," as defined by the clause, it did not infringe his rights to pursue it. In doing so, the court followed the decision of Supreme Court of Virginia v. Friedman, 487 U.S. 59, (1988), which held that "if the challenged restriction deprives non-residents of a protected privilege, (the court) will invalidate it only if (it) conclude(s) that the restriction is not closely related to the advancement of a substantial state interest."

The Appellate Court also turned aside the Appellants' contention that VFOIA infringed a protected right of equal access to information, a position supported by numerous Amici Supporting Appellants, which included both print and broadcast media organizations. The court, in a footnote, stated that some of these groups appear to be more concerned with the media exception to VFOIA, but "This opinion considers only the arguments... raise(d) regarding the constitutionality of the VFOIA," which did not apply to the Amici.

Finally, the Court held that the "citizens-only" provision of VFOIA was not a violation of Commerce clause restraints against 'the several States' by limiting 'the power of the States to erect barriers against interstate trade,'" Dennis v. Higgins, 498 U.S. 439, (1991). As the court concluded, "Nothing in VFOIA burdens 'the flow of interstate commerce,' and although it might prevent one from 'using his 'chosen way of doing business,' does not prevent one from engaging in business in (Virginia)." See: McBurney v. Young, 667 F.3d 454 (4th Cir. 2012).

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Related legal case

McBurney v. Young