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States Can Limit Public Records Access to Residents: Supreme Court

By Aditi Mukherji, JD on May 01, 2013 | Last updated on March 21, 2019

In a blow to freedom of information advocates, the U.S. Supreme Court has ruled that state public-records access can be limited to residents of that state.

The unanimous decision upheld laws in Virginia and a handful of other states that release some public records only to in-state residents, reports the Los Angeles Times.

At the core of the decision are the Freedom of Information Act (FOIA) and the Constitution's privileges and immunities clause.

The Case: McBurney v. Young

FOIA generally gives anyone the right to access federal agency records, while the Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner.

In the case before the Supreme Court, Mark McBurney and Roger Hurlbert were challenging a Virginia law that restricts access of public records to in-state residents, reports the Times.

McBurney, a former Virginia resident, was seeking documents relating to a family dispute with his ex-wife. Hurlbert runs a California-based business that seeks real estate tax records on behalf of private clients.

They argued that Virginia's law violates the Privileges and Immunities Clause. Virginia citizens get access to public records via FOIA laws, while non-residents like McBurney and Hurlbert don't get that same access only because they're not Virginia residents.

But the court didn't buy the argument. Justice Samuel A. Alito Jr. said the Privileges and Immunities Clause doesn't extend a broad right to all information made available through freedom of information laws.

Potential Effects of the Ruling

For small business owners out there, watch out. The decision deals a setback to businesses and researchers who gather data across state lines.

"This is disappointing. We have a national information economy now, and all sorts of activities depend on data from all 50 states," Deepak Gupta, an attorney for the challengers, told the Times.

But there's a silver lining. Despite the ruling, Gupta said the trend has been for states to open their public records on an equal basis. Only two other states -- Arkansas and Tennessee -- decline to do so, he said. "It's not realistic for states to wall off their public information," he said.

So even though states don't have to give non-residents access to public records, states can and (most of them) are willing to do so.

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