The Tully Center for Free Speech

Free Speech Zone

Freedom of Information Challenge

By Roy Gutterman, February 19, 2013

The Supreme Court is poised to hear arguments Wednesday in a challenge to a state’s freedom of information law, which bars out-of-state citizens from obtaining public records within the state.

The case, McBurney v. Young, is a challenge to Virginia’s freedom of information law.  The petitioners are: Mark McBurney, a former Virginia resident who now lives in Rhode Island and is seeking public records about his own child support case and a government agency’s potential mishandling of the case; and Roger Hurlbert, a California resident who has a business that collects public records on behalf of clients, specifically land and property tax records.

Both sought records that are clearly public and would most likely have been turned over to residents of the Commonwealth of Virginia, under its freedom of information laws. 

Media entities tend to be the parties most often challenging a government agency’s denial of a public record request.  But the petitioners here are a private individual and a commercial enterprise that deals with public records.   Their federal lawsuits, which go back to 2009, are vested in Constitutional principles of the dormant commerce clause (Article I, Section 8) and the privileges and immunities clause (Article IV).

Now, these technical arguments tend to be relegated to chapters in dusty Constitutional law treatises. But this case is not entirely testing obscure constitutional theories and doctrines.  The underlying dispute here is a state’s denial of access to public records.

Maintaining public records is an integral governmental duty.  Briefs submitted by both the parties and amici supporters are replete in some of the history associated with the government’s responsibility to not only maintain public records but make them available for public review.  Openness with regard to public records in the United States, in some jurisdictions traces its origins to the Colonial era, even all the way back to England.

The ability of the public, especially the press on behalf of the public, to inspect, review and publish public information is a hallmark to the democracy.  The openness of government operations and public issues not only provides an important check on government abuse and corruption but also assists in providing fodder for the marketplace of ideas.

An amicus brief submitted by the Reporters Committee for Freedom of the Press, on behalf of a host of media entities and trade groups, argued that the out-of-state exception or resident-only requirement discriminates based on outdated geographic lines and barriers.  The effect, RCFP argues that the ban will “retard the national progress that comes from a well-educated, well-informed citizenry.”

While openness of Virginia’s public records may have colonial roots, the law was only passed in 1968 during a wave of open government sentiment.  The federal government passed its Freedom of Information Act in 1966.

Virginia argues the law’s purpose is “political,” designed to guarantee transparency in government operations, intended to benefit “those directly affected by that political process – i.e. citizens – and on media with a Virginia presence.”

Virginia is not the only state with a residents-only requirement for public records access.  But a number of other states have repealed those provisions in recent years, too.

It will be interesting to see how the court balances the issues.


Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.