MCBURNEY v. YOUNG

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 12–17

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MARK J. McBURNEY, et al., PETITIONERS v. NATHANIEL L. YOUNG, DEPUTY COMMISSIONER AND DIRECTOR, VIRGINIA DIVISION OF CHILD SUPPORT ENFORCEMENT, et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[April 29, 2013]

Justice Alito delivered the opinion of the Court.

In this case, we must decide whether the Virginia Freedom of Information Act, Va. Code Ann. §2.2–3700 et seq., violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause. The Virginia Freedom of Information Act (FOIA), provides that “all public records shall be open to inspection and copying by any citizens of the Commonwealth,” but it grants no such right to non-Virginians. §2.2–3704(A) (Lexis 2011).

Petitioners, who are citizens of other States, unsuccessfully sought information under the Act and then brought this constitutional challenge. We hold, however, that petitioners’ constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth’s refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship. For these reasons, we affirm the decision of the Court of Appeals rejecting petitioners’ constitutional claims.

I

Petitioners Mark J. McBurney and Roger W. Hurlbert are citizens of Rhode Island and California respectively. McBurney and Hurlbert each requested documents under the Virginia FOIA, but their requests were denied because of their citizenship.

McBurney is a former resident of Virginia whose ex-wife is a Virginia citizen. After his ex-wife defaulted on her child support obligations, McBurney asked the Commonwealth’s Division of Child Support Enforcement to file a petition for child support on his behalf. The agency complied, but only after a 9-month delay. McBurney attributes that delay to agency error and says that it cost him nine months of child support. To ascertain the reason for the agency’s delay, McBurney filed a Virginia FOIA request seeking “all emails, notes, files, memos, reports, letters, policies, [and] opinions” pertaining to his family, along with all documents “regarding [his] application for child support” and all documents pertaining to the handling of child support claims like his. App. in No. 11–1099 (CA4), p. 39A. The agency denied McBurney’s request on the ground that he was not a Virginia citizen. McBurney later requested the same documents under Virginia’s Government Data Collection and Dissemination Practices Act, Va. Code Ann. §2.2–3800 et seq., and through that request he received most of the information he had sought that pertained specifically to his own case. He did not, however, receive any general policy information about how the agency handled claims like his.

Hurlbert is the sole proprietor of Sage Information Services, a business that requests real estate tax records on clients’ behalf from state and local governments across the United States. In 2008, Hurlbert was hired by a land/title company to obtain real estate tax records for properties in Henrico County, Virginia. He filed a Virginia FOIA request for the documents with the Henrico County Real Estate Assessor’s Office, but his request was denied because he was not a Virginia citizen.

Petitioners filed suit under 42 U. S. C. §1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert’s case, the dormant Commerce Clause. The District Court granted Virginia’s motion for summary judgment, McBurney v. Cuccinelli, 780 F. Supp. 2d 439 (ED Va. 2011), and the Court of Appeals affirmed, 667 F. 3d 454 (CA4 2012).

Like Virginia, several other States have enacted freedom of information laws that are available only to their citizens. See, e.g., Ala. Code §36–12–40 (2012 Cum. Supp.); Ark. Code Ann. §25–19–105 (2011 Supp.); Del. Code Ann., Tit. 29, §10003 (2012 Supp.); Mo. Rev. Stat. §109.180 (2012); N. H. Rev. Stat. Ann. §91–A:4 (West 2012); N. J. Stat. Ann. §47:1A–1 (West 2003); Tenn. Code Ann. §10–7–503 (2012). In Lee v. Minner, 458 F. 3d 194 (2006), the Third Circuit held that this feature of Delaware’s FOIA violated the Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U. S. ___ (2012).

II

Under the Privileges and Immunities Clause, “[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States.” U. S. Const., Art. IV, §2, cl. 1. We have said that “[t]he object of the Privileges and Immunities Clause is to ‘strongly . . . constitute the citizens of the United States [as] one people,’ by ‘plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.’ ” Lunding v. New York Tax Appeals Tribunal, 522 U. S. 287, 296 (1998) (quoting Paul v. Virginia, 8 Wall. 168, 180 (1869)). This does not mean, we have cautioned, that “state citizenship or residency may never be used by a State to distinguish among persons.” Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371, 383 (1978) . “Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.” Ibid. Rather, we have long held that the Privileges and Immunities Clause protects only those privileges and immunities that are “fundamental.” See, e.g., id., at 382, 388.

Petitioners allege that Virginia’s citizens-only FOIA provision violates four different “fundamental” privileges or immunities: the opportunity to pursue a common calling, the ability to own and transfer property, access to the Virginia courts, and access to public information. The first three items on that list, however, are not abridged by the Virginia FOIA, and the fourth—framed broadly—is not protected by the Privileges and Immunities Clause.

A

Hurlbert argues that Virginia’s citizens-only FOIA provision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling.” Hicklin v. Orbeck, 437 U. S. 518, 524 (1978) ; Supreme Court of N. H. v. Piper, 470 U. S. 274, 280 (1985) (“ ‘[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State’ ”). But the Virginia FOIA does not abridge Hulbert’s ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens’ privileges and immunities an “Alaska Hire” statute containing a resident hiring preference for all employment related to the development of the State’s oil and gas resources); Toomer v. Witsell, 334 U. S. 385, 395, 397 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the “purpose and effect of this statute . . . [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents,” and the “record cas[t] some doubt on” the State’s counterassertion that the statute’s “obvious purpose was to conserve its shrimp supply”); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U. S. 208 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-of-state citizens’ ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts.

Virginia’s FOIA differs sharply from those statutes. By its own terms, Virginia’s FOIA was enacted to “ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” Va. Code Ann. §2.2–3700(B) (Lexis 2011). Hurlbert does not allege—and has offered no proof—that the challenged provision of the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens. Cf. Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 67 (2003) (piercing a professedly nondiscriminatory statute to find economic protectionism). Rather, it seems clear that the distinction that the statute makes between citizens and noncitizens has a distinctly nonprotectionist aim. The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power. See Va. Const., Art. I, §2; Va. Code Ann. §2.2–3700(B). In addition, the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Tr. of Oral Arg. 53–54. The challenged provision of the state FOIA does not violate the Privileges and Immunities Clause simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on information contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen.

B

Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825); see also Paul, supra, at 180 (listing “the acquisition and enjoyment of property” among the privileges of citizenship). Thus, if a State prevented out-of-state citizens from accessing records—like title documents and mortgage records—that are necessary to the transfer of property, the State might well run afoul of the Privileges and Immunities Clause. Cf. State v. Grimes, 29 Nev. 50, 85, 84 P. 1061, 1073 (1906) (“Caveat emptor being the rule with us in the absence of a special agreement, it is just and essential to the protection of persons intending to purchase or take incumbrances that they be allowed the right of inspection”); Jackson ex dem. Center v. Campbell, 19 Johns. 281, 283 (N. Y. 1822) (the “plain intention” of the State’s property records system was “to give notice, through the medium of the county records, to persons about to purchase”).

Virginia, however, does not prevent citizens of other States from obtaining such documents. Under Virginia law, “any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof.” Va. Code Ann. §17.1–208 (Lexis 2010). Such records and papers include records of property transfers, like title documents, §55–106 (Lexis 2012); notices of federal tax liens and other federal liens against property, §55–142.1; notices of state tax liens against property, §58.1–314 (Lexis 2009) (state taxes generally), §58.1–908 (estate tax liens), §58.1–1805 (state taxes generally), §58.1–2021(A) (liens filed by agencies other than the Tax Commission); and notice of mortgages and other encumbrances, §8.01–241 (Lexis Supp. 2012).

A similar flaw undermines Hurlbert’s claim that Virginia violates the Privileges and Immunities Clause by preventing citizens of other States from accessing real estate tax assessment records. It is true that those records, while available to Virginia citizens under the state FOIA, are not required by statute to be made available to noncitizens. See Associated Tax Service, Inc. v. Fitzpatrick, 236 Va. 181, 183, 187, 372 S. E. 2d 625, 627, 629 (1988). 1 But in fact Virginia and its subdivisions generally make even these less essential records readily available to all. These records are considered nonconfidential under Virginia law and, accordingly, they may be posted online. §58.1–3122.2 (Lexis 2009). Henrico County, from which Hurlbert sought real estate tax assessments, follows this practice, 2 as does almost every other county in the Commonwealth. Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens’ ability to own or transfer property in Virginia.

C

McBurney alleges that Virginia’s citizens-only FOIA provision impermissibly burdens his “access to public proceedings.” Brief for Petitioners 42. McBurney is correct that the Privileges and Immunities Clause “secures citizens of one State the right to resort to the courts of another, equally with the citizens of the latter State.” Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 257 U. S. 533, 535 (1922) . But petitioners do not suggest that the Virginia FOIA slams the courthouse door on noncitizens; rather, the most they claim is that the law creates “[a]n information asymmetry between adversaries based solely on state citizenship.” Brief for Petitioners 42.

The Privileges and Immunities Clause does not require States to erase any distinction between citizens and non-citizens that might conceivably give state citizens some detectable litigation advantage. Rather, the Court has made clear that “the constitutional requirement is satisfied if the non-resident is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens.” Canadian Northern R. Co. v. Eggen, 252 U. S. 553, 562 (1920) .

The challenged provision of the Virginia FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to the Commonwealth’s courts. Virginia’s rules of civil procedure provide for both discovery, Va. Sup. Ct. Rule 4:1 (2012), and subpoenas duces tecum, Rule 4:9. There is no reason to think that those mechanisms are insufficient to provide noncitizens with any relevant, nonprivileged documents needed in litigation.

Moreover, Virginia law gives citizens and noncitizens alike access to judicial records. Va. Code Ann. §17.1–208; see also Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 258, 368 S. E. 2d 253, 256 (1988). And if Virginia has in its possession information about any person, whether a citizen of the Commonwealth or of another State, that person has the right under the Government Data Collection and Dissemination Practices Act to inspect that information. §2.2–3806(A)(3) (Lexis 2011).

McBurney’s own case is illustrative. When his FOIA request was denied, McBurney was told that he should request the materials he sought pursuant to the Government Data Collection and Dissemination Practices Act. Upon placing a request under that Act, he ultimately received much of what he sought. Accordingly, Virginia’s citizens-only FOIA provision does not impermissibly burden noncitizens’ ability to access the Commonwealth’s courts.

D

Finally, we reject petitioners’ sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right.

This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws. See Houchins v. KQED, Inc., 438 U. S. 1, 14 (1978) (plurality opinion) (“ ‘The Constitution itself is [not] a Freedom of Information Act’ ”); see also Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 40 (1999) (the Government could decide “not to give out [this] information at all”); Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011) (Breyer, J., dissenting) (slip op., at 8) (“[T]his Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate”).

It certainly cannot be said that such a broad right has “at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Corfield, 6 F. Cas., at 551. No such right was recognized at common law. See H. Cross, The People’s Right to Know 25 (1953) (“[T]he courts declared the primary rule that there was no general common law right in all persons (as citizens, taxpayers, electors or merely as persons) to inspect public records or documents”). Most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them. See, e.g., King v. Shelley, 3 T. R. 141, 142, 100 Eng. Rep. 498, 499 (K. B. 1789) (Buller, J.) (“[O]ne man has no right to look into another’s title deeds and records, when he . . . has no interest in the deeds or rolls himself”); King v. Justices of Staffordshire, 6 Ad. & E. 84, 101, 112 Eng. Rep. 33, 39 (K. B. 1837) (“The utmost . . . that can be said on the ground of interest, is that the applicants have a rational curiosity to gratify by this inspection, or that they may thereby ascertain facts useful to them in advancing some ulterior measures in contemplation as to regulating county expenditure; but this is merely an interest in obtaining information on the general subject, and would furnish an equally good reason for permitting inspection of the records of any other county: there is not that direct and tangible interest, which is necessary to bring them within the rule on which the Court acts in granting inspection of public documents”).

Nineteenth-century American cases, while less uniform, certainly do not support the proposition that a broad-based right to access public information was widely recognized in the early Republic. See, e.g., Cormack v. Wolcott, 37 Kan. 391, 394, 15 P. 245, 246 (1887) (denying mandamus to plaintiff seeking to compile abstracts of title records; “At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land or subject of record”); Brewer v. Watson, 71 Ala. 299, 305 (1882) (“The individual demanding access to, and inspection of public writings must not only have an interest in the matters to which they relate, a direct, tangible interest, but the inspection must be sought for some specific and legitimate purpose. The gratification of mere curiosity, or motives merely speculative will not entitle him to demand an examination of such writings”); Nadel, What are “Records” of Agency Which Must Be Made Available Under State Freedom of Information Act, 27 A. L. R. 4th 680, 687, §2[b] (1984) (“[A]t common law, a person requesting inspection of a public record was required to show an interest therein which would enable him to maintain or defend an action for which the document or record sought could furnish evidence or necessary information”).

Nor is such a sweeping right “basic to the maintenance or well-being of the Union.” Baldwin, 436 U. S., at 388. FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966, §1, 80Stat. 383, and Virginia’s counterpart was adopted two years later, 1968 Va. Acts ch. 479, p. 690. There is no contention that the Nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted.

III

In addition to his Privileges and Immunities Clause claim, Hurlbert contends that Virginia’s citizens-only FOIA provision violates the dormant Commerce Clause. The Commerce Clause empowers Congress “[t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. The Commerce Clause does not expressly impose any constraints on “the several States,” and several Members of the Court have expressed the view that it does not do so. See General Motors Corp. v. Tracy, 519 U. S. 278, 312 (1997) (Scalia, J., concurring) (“[T]he so-called ‘negative’ Commerce Clause is an unjustified judicial intervention, not to be expanded beyond its existing domain”); United Haulers Assn. Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330, 349 (2007) (Thomas, J., concurring in judgment) (“The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice”). Nonetheless, the Court has long inferred that the Commerce Clause itself imposes certain implicit limitations on state power. See, e.g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 (1852); cf. Gibbons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.) (dictum).

Our dormant Commerce Clause jurisprudence “significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce.” Maine v. Taylor, 477 U. S. 131, 151 (1986) . It is driven by a concern about “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269 –274 (1988); see also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978) (“The crucial inquiry . . . must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental”).

Virginia’s FOIA law neither “regulates” nor “burdens” interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all. The “common thread” among those cases in which the Court has found a dormant Commerce Clause violation is that “the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation.” Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806 (1976) . Here, by contrast, Virginia neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Rather, it merely creates and provides to its own citizens copies—which would not otherwise exist—of state records. As discussed above, the express purpose of Virginia’s FOIA law is to “ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” Va. Code Ann. §2.2–3700(B). This case is thus most properly brought under the Privileges and Immunities Clause: It quite literally poses the question whether Virginia can deny out-of-state citizens a benefit that it has conferred on its own citizens. Cf. Missouri Pacific R. Co., 257 U. S., at 535 (analyzing whether the privilege of access to a State’s courts must be made available to out-of-state citizens equally with the citizens of the relevant State). Because it does not pose the question of the constitutionality of a state law that interferes with an interstate market through prohibition or burdensome regulations, this case is not governed by the dormant Commerce Clause.

Even shoehorned into our dormant Commerce Clause framework, however, Hurlbert’s claim would fail. Insofar as there is a “market” for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. We have held that a State does not violate the dormant Commerce Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.” Reeves, Inc. v. Stake, 447 U. S. 429, 442 (1980) . “Such policies, while perhaps ‘protectionist’ in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.” Ibid.; cf. Department of Revenue of Ky. v. Davis, 553 U. S. 328, 341 (2008) (“[A] government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors”). For these reasons, Virginia’s citizens-only FOIA provision does not violate the dormant Commerce Clause.

*  *  *

Because Virginia’s citizens-only FOIA provision neither abridges any of petitioners’ fundamental privileges and immunities nor impermissibly regulates commerce, petitioners’ constitutional claims fail. The judgment below is affirmed.

It is so ordered.

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1  At oral argument, the Solicitor General of Virginia contended that, as a matter of Virginia law, Hurlbert “is entitled to the tax assessment data in the clerk’s office.” Tr. of Oral Arg. 38. Neither at oral argument nor in its briefs did Virginia cite any Virginia statute providing that real estate tax assessment records be filed in the clerk’s office. Virginia Code Ann. §58.1–3300 (Lexis 2009), which directs that “reassessment” records be filed with the clerk, may be the statute to which counsel referred, but without an official construction of the statute by Virginia’s Supreme Court—and, in light of the fact that petitioners have not been afforded an opportunity to rebut its importance—we do not rely upon it here.

2  See http://www.co.henrico.va.us/finance/disclaimer.html (as visited April 26, 2013, and available in Clerk of Court’s case file).

SUPREME COURT OF THE UNITED STATES

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No. 12–17

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MARK J. McBURNEY, et al., PETITIONERS v. NATHANIEL L. YOUNG, DEPUTY COMMISSIONER AND DIRECTOR, VIRGINIA DIVISION OF CHILD SUPPORT ENFORCEMENT, et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[April 29, 2013]

Justice Thomas, concurring.

I join the Court’s opinion. Though the Court has prop-erly applied our dormant Commerce Clause precedents, I continue to adhere to my view that “[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.” Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003) (opinion concurring in part and dissenting in part) (citation and internal quotation marks omitted).

Print this transcript Transcript: 

ORAL ARGUMENT OF DEEPAK GUPTA ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument this morning first in Case 12-17, McBurney v. Young.

Mr. Gupta.

Deepak Gupta: Thank you, and may it please the Court:

All 50 States have public records laws.

47 of those States make access available to residents and nonresidents on equal terms.

Virginia, by contrast, enforces a discriminatory access policy, and because commercial requesters make up the vast majority of records requesters, out of State businesses bear the brunt of Virginia's policy--

Justice Antonin Scalia: When -- when was the first of those laws enacted, do you know?

I think it's -- I think it's in my adult lifetime that Florida was the first to enact a sunshine law.

Is that -- am I correct about that?

Deepak Gupta: --That's right.

All of these laws--

Justice Antonin Scalia: In the '60s.

Deepak Gupta: --In the '60s and the early '70s.

The Virginia law was enacted in 1968.

And we don't deny that--

Justice Antonin Scalia: And you say that's a fundamental -- that's a fundamental right covered by a Privileges and Immunities Clause, which nobody had until the 1960s.

Deepak Gupta: --Well, to be clear, the modern transparency laws are new, but they sit on top of well-established common law rights to access that are based not on modern notions of transparency but on the right to secure property and other basic interests--

Justice Antonin Scalia: But those -- those rights still exist in this State, don't they?

Cannot you get records of deeds and whatever the common law would have covered?

Deepak Gupta: --Well, it's true that -- that Virginia's law exempts deeds from its Freedom of Information law, but if I understand their position correctly, they would be entitled as a constitutional matter under their theory to preclude people from other States from accessing even deeds.

Justice Antonin Scalia: Well, I'll ask him -- I didn't understand that to be their position, but -- but I guess we can ask them.

Deepak Gupta: My client, Mr. Hurlbert, is in the business of gathering property records for his clients.

Now, it's true that in Virginia, he could get the deed, but what he can't get and what he principally gathers for his clients are real estate tax assessment records, and those are a much richer storehouse of property-related information than simply the deed.

Justice Ruth Bader Ginsburg: Can you -- can you explain that business a little more fully than you did in the briefs?

He's in the business of collecting records from all the States about tax assessments.

Deepak Gupta: That's right.

Justice Ruth Bader Ginsburg: And he -- and he does that for a client who could very well ask himself.

So what is the service that's being performed?

Deepak Gupta: Well, he -- you know, he doesn't just do the routine request.

These -- the large data companies are the ones who hire him.

And they -- if they're routine requests, they can do them themselves.

Although if they're not based in Virginia, they would still have to hire a Virginian to do it.

But they bring him in when there's some flaw in the -- the routine process where the -- the State is being recalcitrant, or the local official is being recalcitrant.

And he's an expert in being able to gather these -- these records, and knowing the process is knowing what he's allowed to do and what he's not allowed to do.

Chief Justice John G. Roberts: All -- all he has to do is get somebody from -- from Virginia to ask for him, right?

Deepak Gupta: Well, he could hire someone from Virginia to do that, but that's -- you know, that's sort of precisely what the--

Chief Justice John G. Roberts: Well, but you don't have to pay the person too much, he just has to write a letter saying give me these documents, right?

Deepak Gupta: --He would still have to hire someone, and that would be an increased cost.

And--

Chief Justice John G. Roberts: Well, an increased cost of -- I don't know how much -- 100 bucks, right?

Go -- write a letter, say you want these documents, and when they come to your house, give them to me.

Deepak Gupta: --Yeah.

For the large data companies, you know, they will hire someone other than him to perform this service.

They will -- if you're talking about routine requests.

But even -- you know, even for them, if you're talking about a -- a request that isn't routine, if he has to do something further to enforce the rights, he's going to have to do that in his own name or the data company will have to hire someone other than him, someone based in Virginia, to do that for them.

And then he will lose that business.

So the lower you go down in the food chain of the data industry, the bigger the effect of Virginia's policy.

Justice Ruth Bader Ginsburg: How much -- how much of an impact in fact does it have on his business?

I mean, there are 47 States who will provide this information.

Deepak Gupta: Well, for him, in the Virginia market, it completely forecloses him from doing access -- business in the Virginia market.

And if other States were to have policies like this, he wouldn't be able to do business in those States as well.

So if -- if the focus is on him and his business in Virginia, it completely cuts him off.

If the focus is on -- on what the effect is in the aggregate on the market as a whole, because most public records requests are commercial requests, it's going to have an effect on most commercial requesters who are out of State.

And--

Justice Antonin Scalia: Mr. Gupta, I -- I understand that the -- the reasoning of Virginia in not allowing out of State people to -- to get these FOIA requests is the following: That the purpose of these -- these laws -- and I remember it when the first ones were enacted -- government in the sunshine.

The purpose of it was not to enable people to get information per se, it was to enable people to see how their government is working, so that they could attend to any malfeasance that is occurring in the process of government.

It seems to me entirely in accord with that purpose of these laws to say it's only Virginia citizens who -- who are concerned about the functioning of Virginia government, and ought to be able to get whatever records Virginia agencies have.

What's -- what's wrong with that reasoning?

Deepak Gupta: --A few responses, Justice Scalia.

First, transparency was one purpose, but as I said, these laws also carried forward the much more longstanding rights to access based on personal interests and property interests.

Also, even at the time that these laws were enacted--

Justice Antonin Scalia: But -- but you don't need any personal or property interest under these laws.

You can just -- out of curiosity, if you -- if you were a Virginian at least in Virginia, even though you have no interest in the matter at all, you can ask the agency for records about this or that.

It -- it can't be based on -- on the traditional property interest.

It's based on the ability of the citizens of the State to find out what the -- what the government of the State is up to.

Deepak Gupta: --Even -- even at the time that these laws were enacted in the -- in the '60s, it was well-understood that they were going to have a big commercial impact.

The property records industry was in full swing by the end of the late 19th Century.

Justice Ruth Bader Ginsburg: But the point is that FOIA is tied to, as Justice Scalia said, the citizens should know what their government is doing.

And you don't have to give any reason at all, if you were a part of that political community.

Now, Virginia doesn't allow people from out of State to vote.

They're not part of Virginia's political community.

So why isn't this -- if you're not part of the political community, then you don't fall under FOIA, which is a peculiar statute, in that everybody who is covered by it can get whatever they want, and they don't have to give any reason for it.

Deepak Gupta: Right.

Well, elections just simply don't work if you -- if you allow noncitizens to participate in elections, or if you can't wall off the State in that respect.

But what the State can't say is simply because one purpose of this law is that we want to constitute ourselves as a political community, that we can exclude activities that have a big commercial effect.

And, you know, when we're looking under the Dormant Commerce Clause or under the Privileges and Immunities Clause, this Court's cases have said repeatedly you don't look to uncover the original legislative purpose, you look to whether there is discrimination, which there is here on its face, and you look to whether there is a discriminatory effect.

One example of how this policy is actually being--

Justice Elena Kagan: And is the only thing that's necessary -- excuse me -- is the only thing that's necessary that the law affect a few people commercially?

I mean, how much -- how many of the requesters have to be engaged in some kind of commercial activity in order for your arguments to work?

Deepak Gupta: --Well, what this Court has said is that there is no de minimis exception if there's discrimination against commerce, but here, what's going on is anything but de minimis.

Virginia does not deny that the -- the vast majority of the requesters are commercial requesters, the vast majority of out of State requesters are commercial requesters.

Their -- the amicus brief supporting their side, the Local Government Attorneys of Virginia amicus brief at page 30 explains the way this policy is being implemented, is that noncommercial requests are typically honored, but out of State requests by data miners are being categorically denied under the policy.

Chief Justice John G. Roberts: But this is not -- this is not a regulation of commerce.

It's a State practice that may have an incidental effect on commerce, and the incidental effect may be disproportionate, depending upon whether you're State or local, but it's not a regulation of commerce.

Deepak Gupta: But that's -- that was the Fourth Circuit's theory and I think incidental can mean a few different things, and I think in -- in their opinion, it -- it does mean at least three different things.

So maybe it would be helpful if I try to unpack that.

If it means incidental in terms of the effect on my client's business -- I think, as I've explained, it's anything but incidental; it completely forecloses him from the market.

If it means incidental in terms of the -- the aggregate effect of this statute, again, it's not incidental because the vast majority of -- of affected parties under this policy are out-of-state commercial requesters, particularly data companies.

And, you know, if it means incidental compared to the purpose of the statute, as I've said, transparency was one purpose of the modern FOIA laws, but they also subsumed and sit on top of all of the longstanding rights of public access that have been around since the -- the first settlements in the United States -- or before the United States, when in order to have a functioning property system, we recognized that you've got to have records of who owns what and -- and those records have to be made available to anyone in order to exercise property rights.

Chief Justice John G. Roberts: What if the State of Virginia says, as a policy, we want to help Virginia businesses and so we're going to open a business training, best practices institute where you're going to learn how to be a better business person, but the only people who can come in are -- are Virginia businesses.

Deepak Gupta: Right.

Chief Justice John G. Roberts: Under your theory, because that will have an effect, an incidental effect on commerce in a way that's discriminatory, is -- is that unconstitutional?

Deepak Gupta: I don't think so.

And there are a couple of distinctions.

First, that's not something that the State exclusively is able to provide.

It's not like the courthouse or the public archives across the street or the road that runs between them that only the -- the State is able to provide.

Anyone can provide a business training institute, so the State is just one player among many.

Also--

Justice Antonin Scalia: But that -- that just goes to the extent of the impact, not -- not on the principle.

And you say extent doesn't matter.

You say there's no such thing as a de minimis exception.

So that -- that explanation doesn't -- doesn't seem to me to hold water.

Deepak Gupta: --Well, maybe I didn't explain it very well.

To be clear, I think it's more than just a difference in degree; it's a difference in kind.

These are fundamentally different when -- when you're talking about running the courthouse or running the public archives, nobody else can do that.

Nobody else can collect -- you know, make tax assessments, collect those records and keep the official public archive of those things.

Justice Antonin Scalia: So what?

So what?

Except to the extent that that bears upon how much of an imposition this is upon interstate commerce.

It seems to me that's the only relevance of that point.

Deepak Gupta: Well--

Justice Antonin Scalia: And -- and you dismiss that relevance.

You say it doesn't matter how extensive the impact is on -- on interstate commerce.

Deepak Gupta: --Well, to the extent that you -- you think it does matter, I mean, that -- that distinction doesn't matter in this case because the impact is -- is great.

The principal impact is an impact on out-of-state commerce.

But let me--

Chief Justice John G. Roberts: Is that -- when you're talking about impact, is that a Pike analysis?

Deepak Gupta: --No.

I think this -- if you were in -- in the dormant Commerce Clause, this would be the per se rule of invalidity.

You have facial discrimination.

The -- the--

Chief Justice John G. Roberts: Well, I thought if it was facial discrimination, you're not concerned about impact.

Deepak Gupta: --That's right.

That's right.

Chief Justice John G. Roberts: I thought a question of talking about the effects on interstate commerce, that's the, you know, the Pike analysis.

Deepak Gupta: No.

What this Court has said is that -- that the first -- sort of first-tier scrutiny, the per se rule is -- is for cases where there's discrimination on its face or discrimination in effect.

And then you've got this other category for the -- the Pike analysis where the State regulates evenhandedly.

Justice Anthony Kennedy: What's your closest case in support of the proposition that this is impermissible as a discrimination against interstate commerce?

What's your best case?

Deepak Gupta: When you say “ this ”, you mean the -- that public records access is commerce?

Justice Anthony Kennedy: If -- if you -- you are arguing, as one of your arguments here, that this is discriminatory as to -- as to interstate commerce, as I understand your argument, what is the best case you have to support your position?

What's the closest case?

Deepak Gupta: Well, I think if you're -- if you're -- if the question is about whether or not records access is commerce, there's Reno v. Condon this Court's unanimous--

Justice Anthony Kennedy: Well, my question is what's the best case you have for your argument?

Deepak Gupta: --Well, I think, you know, this Court's unanimous decision in Reno v. Condon held that because people buy public records and sell them in interstate commerce, that's indisputably interstate commerce.

So we--

Justice Anthony Kennedy: But that wasn't a discrimination.

That wasn't a--

Deepak Gupta: --That's right.

Justice Anthony Kennedy: --That's just -- that goes to the question whether or not this is commerce.

Deepak Gupta: That -- that's right.

Justice Anthony Kennedy: What is your best case to show that this is discriminatory in violation of our precedence?

Deepak Gupta: Well, Virginia doesn't deny that there's discrimination on its face, so I take your question to be asking, you know, what about the commerce aspect.

And in Reno v. Condon--

Justice Anthony Kennedy: If I have to write the opinion, what case do I put down?

I'm waiting.

Deepak Gupta: --Yeah, I mean, you -- okay.

So you can also look to Camps Newfound, which, I think, you know, was much, more attenuated to commerce.

There you had a generally applicable law, a property tax law--

Justice Stephen G. Breyer: If I only have time to read one case--

Deepak Gupta: --Yeah.

Justice Stephen G. Breyer: --or possibly two, which would you like me to read?

I think that's basically the question.

Deepak Gupta: Yeah.

I mean, you know, look.

There's no case that's -- that's entirely on all fours, but--

Justice Stephen G. Breyer: Okay.

But I assume you don't want me--

Justice Anthony Kennedy: That's why you're here.

Deepak Gupta: --So right.

So -- so -- okay.

So the Camps Newfound case is -- is a case where you had a generally applicable law.

It was a property tax law.

It exempted, you know, charities that served primarily in-state residents.

It was -- there is no evidence that the State of Maine intended that to be a, you know, a discrimination against commerce, and obviously swept more broadly and affected both commerce and non-commerce.

But this Court said that, you know, you had facial discrimination against commerce because there were people operating these summer camps and they were treated differently--

Justice Stephen G. Breyer: --Look at those.

But I think the Commerce Clause basically has as its objective, insofar as it's dormant, to prevent a legislature or decisionmaker within its State discriminating in favor of their own state producers.

Deepak Gupta: --Right.

Justice Stephen G. Breyer: Now, it's pretty hard for me to put this case into that mold.

Deepak Gupta: Well, I mean, one -- you know, one piece of evidence, Justice Breyer, is the media exception to the Virginia statute.

It -- this -- this makes it clear that Virginia was aware that people who were requesting information for commercial purposes were going to use this statute and they exempted the press--

Justice Antonin Scalia: Just Virginia media, though, isn't it?

Isn't it only media that--

Deepak Gupta: --That's right, Justice Scalia.

Justice Antonin Scalia: --exists or is broadcast into Virginia?

Deepak Gupta: That's right.

So it's -- it's--

Justice Antonin Scalia: So that's consistent with their purpose that this statute is meant to assure good, honest government in Virginia.

Deepak Gupta: --Well, if this is a statute, it's a pretty unusual statute that discriminates among newspapers.

So it says--

Justice Stephen G. Breyer: If it does what the -- I had exactly the same question for both parts of your argument, that, what it's their -- am I right in thinking that anyone can get any information -- anyone in any State can get any information that pertains to him or her?

Is that right or not?

Deepak Gupta: --There is a separate Virginia--

Justice Stephen G. Breyer: Is that right or not?

Deepak Gupta: --Yes.

There is a separate Virginia statute that allows this.

Justice Stephen G. Breyer: Okay.

That's what I wanted to know, whether it's separate or not.

Deepak Gupta: That's right.

Justice Stephen G. Breyer: Anyone from Alaska to Hawaii can get any information that pertains to him or her.

Second, that this has nothing to do with judicial records.

There is a different statute that makes judicial records public.

Deepak Gupta: That's correct.

Justice Stephen G. Breyer: Okay.

So we're now talking about the class of information other than the two classes I've mentioned.

And I then ended up, and I'd like you to add something to this, if you can, that really this is about, since getting information involves usually a benefit to the recipient, but sometimes harm to the person the information is about, that willing to run that harm and risk of harm is the interest in State good government, okay?

Deepak Gupta: Uh-huh.

Justice Stephen G. Breyer: Now, if that's the interest, that's an interest that probably a State has the right, just as it has the right to say other people can't vote in State elections.

If that's the interest, then I guess it could take reasonable measures related to that interest.

All right.

Now, that is the -- the argument or the position that I would appreciate your addressing.

Deepak Gupta: Sure.

You know, that -- we don't deny that that's an interest that the State has, but then you have to see whether the -- the interest is reasonably furthered by the statute.

And here you have a resource that is not finite and the statute allows the State to recoup its expenses.

So nothing is lost to Virginians.

There isn't any loss in transparency to Virginians by extending access to out-of-state data companies.

Justice Ruth Bader Ginsburg: But if it costs for Virginia -- Virginia has to take care of its own, and if it has to service FOIA requests from all over, it's going to cost the State.

It's going to have to hire people to do this.

They're going to have to spend many hours going through these records.

So the State doesn't -- it wants to conserve its resources for its own people.

Deepak Gupta: But -- but there's no loss in resources, Justice Ginsburg, because the statute allows Virginia to fully recoup any administrative expenses.

Justice Sonia Sotomayor: Counsel, I'm having--

Justice Antonin Scalia: But they -- but they just don't want out -- they -- they don't want outlanders mucking around in -- in Virginia government.

It's perfectly okay for good old Virginians to do that, but they don't want outlanders to do it.

Why -- why is that unreasonable?

Deepak Gupta: Yeah.

That -- that is certainly their interest.

But you've got to see whether the policy serves -- serves, you know, the interest, and -- and this is a statute that is supposed to promote transparency.

It actually makes less transparent.

Justice Sonia Sotomayor: --Counsel, I'm -- I -- there is underlying your argument a sort of fundamental belief that you are entitled to relief -- pardon the alliteration simply because the statute discriminates between citizens and noncitizens.

Is that your position?

Deepak Gupta: No, not at all.

I mean--

Justice Sonia Sotomayor: So if it's not, what are the two rights that you -- or what rights are it that you're claiming have been violated?

You say privileges and immunities.

What's the privilege or immunity?

Deepak Gupta: --It's the privilege or immunity of pursuing a common calling across State borders.

So there's no dispute here that Mr. Hurlbert's common calling is -- is gathering data.

In fact, those are the principal users of public records laws.

Justice Sonia Sotomayor: So is this an as-applied challenge to the--

Deepak Gupta: That's right.

Justice Sonia Sotomayor: --All right.

Deepak Gupta: That's right.

Justice Sonia Sotomayor: So this is an as-applied challenge.

Deepak Gupta: Yes.

So -- so it's an as-applied challenge with respect to Mr. Hurlbert's common calling.

There's no -- there's no dispute that that is his common calling and that this law has the effect of completely cutting him off from pursuing his common calling in the Virginia market and that 47 other States--

Justice Ruth Bader Ginsburg: Then you would be doing something very strange with this statute, because you would be saying Hurlbert has a right to this because it's his business.

But the statute, the character of this statute is it doesn't matter what you want the information for.

But you're saying the out-of -- the in-Stater, it doesn't matter.

Out-of-Stater, is it your argument that if this out-of-Stater has a good reason for getting this and it's related to the out-of-State's business, so you -- you're changing the character of a FOIA statute which is it doesn't matter what you want it for.

Deepak Gupta: --Right.

I mean, you would, you know, we would -- we would ask that you rule that the statute is unconstitutional as applied to him and then Virginia would have the choice if it has a to the statute--

Justice Sonia Sotomayor: I -- I'm having a problem, and then I think it's Justice Ginsburg's problem, which is absent the statute, he can't demand that Virginia provide him with this information because that's how he wants to work, correct?

So what's the added value that gives him a right to demand it merely because a statute exists?

He doesn't have a right to the information.

Deepak Gupta: --Well, he's -- all he's asking for is information that's available in the public archives on equal terms with Virginians.

In the same way that -- that someone who--

Justice Stephen G. Breyer: He -- he has a very reasonable request in my view, but the question isn't the reasonableness of his request.

The question's, you know, whether they can do it.

And the -- the way -- the work -- the thing that's bothering me on the work part is this: It seems that the work is sort of tailored to the statute.

It's in this way.

I -- I have a job and my job is to study election processes.

And I write reports and I find amazing things about differences among States.

They're truly amazing.

And I say, you know, it would help me a lot if I was actually a voter in each of these states.

That would help my job.

It would lend authenticity and I could learn things that I probably couldn't learn otherwise.

Now, does that add anything to the argument?

I mean, I don't think so, but it sounds a little bit like you're making that kind of argument--

Deepak Gupta: --No.

Justice Stephen G. Breyer: --and -- and they either do have the right or they don't.

And I don't know that it helps that I -- that I say, well, I really want it for my work.

Deepak Gupta: Right.

But this is -- this is a profession that has existed since the founding era.

I mean, we've, you know, we've cited cases in our opening brief of -- of people hiring professionals to search the records for them before engaging in property transactions.

By the late 19th Century, you had an enormous industry that was designed to do this.

So this isn't -- Mr. Hurlbert isn't some -- someone who's making up some profession.

He's part of a very large industry that has done this for a very long time.

And that industry, yes, like lawyers depend on courthouses or truckers depend on roads, his industry depends on access to the public archives.

And, you know, it's true that -- that now you have these modern public records laws, but I -- I think Virginia's argument would be the same if you were just talking about can -- can they bar the doors to the archives building?

Can they bar the doors to the property records?

So there's no -- I don't see any distinction in kind--

Chief Justice John G. Roberts: Is this -- is this your Privileges and Immunities argument or your dormant Commerce Clause argument?

Deepak Gupta: --You know, I think the logic of both arguments are similar, but I think it most clearly is illustrated in the Privileges and Immunities context where--

Chief Justice John G. Roberts: So then it's not enough that this is a big deal to your client.

It has to be something that is essential to hold the country together as a national unit.

And it seems to me it's a bit of a stretch to say somebody gathering records about commercial -- under FOIA fits that description.

Deepak Gupta: --I don't think it's a stretch at all, Justice -- Chief Justice.

The -- the aggregators of records make possible mortgage origination, credit reporting, insurance adjustment.

The -- the economy -- and you have an amicus brief--

Chief Justice John G. Roberts: No, but see, they're just to get into those.

Again, I think a lot of those examples you -- you do have access under other statutes.

You're talking about mortgage rules and all that.

Aren't those all--

Deepak Gupta: --No, no.

Not to this kind of information.

The -- the information that Mr. Hurlbert is gathering, tax assessment information, is essential to -- to mortgage origination and credit reporting.

The people who hire him are large data companies, and the -- the data industry brief explains the uses of this information.

That -- that information is essential to these activities.

And Virginia, virtually alone among the States, is -- is erecting this barrier to access that market, and reserving the right to access that market to only people who live in the State.

And -- and, you know, this would be no different if it were just talking about the archives that -- that include all the information that the -- yes, it's true that Virginia has exempted of the title itself, but I don't see that the logic of their position allows them to make that distinction.

I mean, that's just a feature of their -- of their statute.

Justice Sonia Sotomayor: I'm still trying to tease out what your claim is.

Let's suppose Virginia passes a statute that says: We'll let nonresidents have access, but they have to pay all the costs.

Nonresidents don't.

Would that satisfy you as valid?

Deepak Gupta: I think that would be a closer question, but I think that presents some problems as well.

I mean, so in your hypothetical it's free to the citizens of the State, but they're just passing the cost on to out-of-Staters.

And, you know, this -- this Court in cases like Toomer and Mullaney have said that at least, you know, where the State can show that the nonresidents pose some unique evil, that the -- the State is entitled to pass the costs on.

Justice Sonia Sotomayor: Why isn't it just -- you just being costs them more?

Deepak Gupta: Right.

Justice Sonia Sotomayor: That was Justice Ginsburg's point, which is every time you've put in a request, you're costing them more money.

Deepak Gupta: Right.

But -- but that would be discriminating against not as -- noncitizens solely because they're noncitizens.

So if there's some particular--

Justice Sonia Sotomayor: Well, why?

You were costing them more.

Deepak Gupta: --Right.

Well, that's -- that's precisely the rationale that -- that in Justice Kennedy's opinion for the Court in Barnard v. Thorstenn, this Court rejected.

This -- the Virgin Islands wanted to say if we open up our bar to people from all over the country, it's going to increase the administrative resources, and this Court said, no, that's not a good a enough reason.

That's just discriminating on the basis of citizenship.

But if, for example, the State could show that there was, you know, there were shipping costs that were uniquely posed by nonresidents and they wanted to assess a $5 shipping fee for all nonresidents, that might be permissible.

And if there are no further questions, I'd like to reserve my time.

Chief Justice John G. Roberts: --Thank you, counsel.

General Getchell?

ORAL ARGUMENT OF EARLE DUNCAN GETCHELL, JR., ON BEHALF OF THE RESPONDENTS

Earle Duncan Getchell Jr: Mr. Chief Justice, and may it please the Court:

The--

Justice Sonia Sotomayor: I'm not sure how you save administrative costs under this statute.

They could go to any Virginia resident, it's not illegal, and probably will, it'll cost them something more, but not you, and get the very same information.

So how do you justify this discrimination?

Because it's so easily -- the administrative cost is going to be imposed anyway.

Earle Duncan Getchell Jr: --I would suggest that the purpose of the statute, which is political, not commercial, left the State with the position that it was going to subsidize with tax dollars this function because we can't recover our overhead; we can over -- only recover the actual cost.

Justice Sonia Sotomayor: So you want to give more businesses to Virginia citizens who will now charge out-of-State residents money to process their FOIA requests?

Earle Duncan Getchell Jr: No, Your Honor.

I don't think anybody was thinking about businesses of any sort.

I think they were saying that we have a political hygiene statute.

They were very much the fad.

It happened in my lifetime, too.

I remember when they were adopted.

Nobody thought they were commercial in nature.

And I do want to -- want to repel the notion that there is even substantial discrimination in this case, because Mr. Hurlbert, in his admission that this is an as-applied challenge, has a difficulty with substantial equality of access, because it turns out that Mr. Hurlbert, in his reply brief, when he teed up the 1786 statute, which does give access -- did give access, he focused his argument on that statute.

And if you run that statute, you will find that between 1830 -- 1813 and 1840, that you did not have general access.

They went back to having to show a particular interest.

But that -- from 1840, '41 until today, through the codes of 1819 and -- and up until the present code, Section 17.1208, he has the right of access to tax assessment records.

Chief Justice John G. Roberts: So if I understood your answer to Justice Sotomayor, the only reason you don't let out-of-staters get these records is because of the added overhead costs?

Earle Duncan Getchell Jr: No, Your Honor.

It's just not part of the interests the State was trying to serve.

The State--

Chief Justice John G. Roberts: Well, I know.

But -- but -- so why don't you do it anyways?

Just as I asked your friend, it doesn't seem like that big a deal.

It doesn't seem like that big a deal for you either.

If you can recoup overhead costs from people who request, and I'd assume you would be able to, why don't other people -- people from West Virginia may have interest in how Virginia government operates, too.

And -- and again, what cost is there to you other than overhead?

You don't want to keep how Virginia government operates quiet from outsiders when you let in -- its citizens get the access, do you?

Earle Duncan Getchell Jr: --The -- we are here to defend the decisions of the two lower courts that apply existing doctrine.

And under existing doctrine, only if we discover that this is a fundamental right do I have to justify--

Chief Justice John G. Roberts: That's under the Privileges -- Privileges and Immunities argument.

Earle Duncan Getchell Jr: --That's correct.

Chief Justice John G. Roberts: Okay.

But what about the Dormant Commerce Clause?

Earle Duncan Getchell Jr: Under the Dormant Commerce Clause, we would first have to have a regulation of commerce that's discriminatory.

And I would say that a -- that this is a governmental function.

I would say that--

Chief Justice John G. Roberts: No, I know -- I understand your argument.

I'm just asking you why bother?

I mean, what -- what's the -- and that's certainly pertinent to some of the Commerce Clause analysis.

And I haven't heard anything other than the overhead costs.

And I think you can recoup that from the requesters.

Earle Duncan Getchell Jr: --I cannot, Your Honor.

Chief Justice John G. Roberts: Why not?

Earle Duncan Getchell Jr: Mr. Chief Justice, the statute says I cannot recoup the cost of maintaining and generating the database, which is by definition overhead.

I cannot--

Chief Justice John G. Roberts: Well, you've got to maintain and generate the database anyway for Virginia citizens who are going to ask for it.

This is not an added cost.

Other than -- it's an added cost if you have to hire an additional person to handle -- as far as I can tell, just these two people.

Earle Duncan Getchell Jr: --It's an added burden, too.

It's not all--

Justice Antonin Scalia: But the Virginia citizens pay for that database, right?

Earle Duncan Getchell Jr: --They do.

This is a--

Justice Antonin Scalia: And the out-of-staters don't pay for the database.

Earle Duncan Getchell Jr: --This is a taxpayer subsidized system.

Justice Antonin Scalia: And besides, do -- do you -- is it the law that -- that the State of Virginia cannot do anything that's pointless?

Only the Federal Government can do stuff that's pointless?

[Laughter]

Earle Duncan Getchell Jr: The -- there is a burden -- there is a non-financial burden as well, because as one who is subject to FOIA requests, we have a finite number of officials and employees who have to address these things.

Justice Sonia Sotomayor: You keep making that argument.

But you don't stop residents for asking for the information from someone else.

I mean, that's one of the points of your law, which is, they can hire a Virginia resident to get it for them.

Most of the big people are doing that already.

So you're not saving any money if they can get the information simply by paying someone in Virginia to get it for them.

Earle Duncan Getchell Jr: In -- in fact, the State of Virginia has made the policy decision to give this information to its citizens, and not to inquire behind it to see whether or not somebody's doing it for an out-of-Stater.

Justice Antonin Scalia: Or even for commercial purposes.

Don't you think if -- if those who created these government in the sunshine laws could have drafted them in such a way that inquiries for commercial purposes would not be allowed, but only those inquiries that are intended to look into the workings of State government and produce government in the sunshine, don't you think that they probably would have excluded commercial inquiries if they could?

But you can't tell which ones are commercial and which aren't.

Earle Duncan Getchell Jr: And we don't -- and we don't try.

We have a policy decision that we want to have a very simple system that allows our citizens to make inquiries without a demonstrated need or cause, because we want there to be sunshine.

Chief Justice John G. Roberts: It's no more complicated in the system if you let out-of-Staters have access, too.

You say we want a simple system.

It's going to be the same system whether you win or lose.

Earle Duncan Getchell Jr: The thing that is of -- of great concern -- why do we care?

Why do we bother -- is the principle that when a government is providing a taxpayer-subsidized service of recent origin to its citizens, that it does not have to explain its choice either under the Privileges and Immunities Clause or under the Dormant Commerce Clause.

It is very important that we not find ourselves with lawsuits that say “ services ”.

Voluntary services are in fact things that now have to be justified under those two provisions of the Constitution.

Justice Stephen G. Breyer: That's where he comes in with his argument.

Because I -- I agree, you can -- you don't have -- let's say the most fabulous reason for doing this, but you have a reason.

And so the question is, does it have to be better than that?

And -- and they are saying yes.

And as I heard it, what I would characterize as a strong argument, which sort of first of all strikes me as a stronger argument, is that, look, if we go back into history, out of State real estate people could always get information about property -- let's say they had a client who wanted to buy it.

Now, you've protected that.

But in today's world, it's important that we get statistics about this, too, because our economy is national.

If we understand how States are taxing their real estate, we will know to what extent they increase the value, to what extent they increase the rate, to what extent they really get the money they are supposed to, to what extent they might get money or not get money in the future.

And all of those things are nationally important so people can put them together and make, better than we have done in the past, predictions about what is likely to happen to States, and hence, the national economy.

All right?

That's -- that's the kind of argument he's making.

So therefore, there is a national interest in the flow of this information.

And that means you have to have a better than “ uh-huh ” kind of rationale.

That's -- that's what he's saying.

Earle Duncan Getchell Jr: But it's very difficult for Mr. Hurlbert to make that fairly expansive argument, because it turns out--

Justice Stephen G. Breyer: Well, to be fair, I -- I was sort of expanding it.

[Laughter]

Earle Duncan Getchell Jr: --But in point of fact, because he is entitled to the tax assessment data in the clerk's office, in the case of Henrico County, where he went, you go in the same building and -- if you're Mr. Hurlbert, you turn in one direction and go to the clerk's office.

And if somebody's in Virginia and wants to -- for whatever reason get it from the tax assessor's book instead of from the clerk's book, you turn in the other direction.

Justice Elena Kagan: But you don't deny that in general, this does affect out-of-State data collectors, people who are engaged in the kind of business that Justice Breyer was talking about.

Is that right?

Earle Duncan Getchell Jr: I have no idea in this record, because we were on summary judgment -- cross motions for summary judgment, and the district court of the court of appeals both in our judgment correctly ruled that there's a two-step inquiry.

And the first step is whether or not there is a fundamental right.

And in the absence of a fundamental right--

Justice Sonia Sotomayor: Only in his Privileges and Immunities Clause claim.

He claims that the Dormant Commerce Clause has been effected because he reads this statute as saying only Virginia recording companies have access.

Out-of-State can't.

And it's a fair reading of the statute.

It only permits Virginia residents, which include commercial and noncommercial, to access the information.

So assume hypothetically that the statute reads

"only Virginia commercial businesses have access to this information-- "

Earle Duncan Getchell Jr: --If -- if in fact you want to rewrite the statute to -- subject it to attack, obviously, that would then raise questions about a nongovernmental protectionist intent.

But that's not the way this statute was written.

It's not how it was crafted, and it has nothing to do with commerce.

Justice Sonia Sotomayor: --Well, that's the question I'm -- I'm raising the best argument for your adversary, okay?

Earle Duncan Getchell Jr: Right.

Justice Sonia Sotomayor: Because we could call it a direct -- he calls it direct discrimination, because commercial businesses are being permitted in Virginia but not noncommercial.

You say it's indirect.

How do we draw the line between direct and indirect when the bottom-line consequence is the same?

Earle Duncan Getchell Jr: I would have about three answers to that.

The first one is that we don't trigger the Dormant Commerce Clause analysis unless we are exercising the police power of a state to regulate commerce.

And that means, it does mean that not every statute a state passes triggers an inquiry, even if it has an indirect effect on commerce.

Whereas here, we have a statute that has a solely political intent, the fact that now the amici want to tell us about this great burgeoning enterprise, they want the Court to take--

Justice Anthony Kennedy: Are you telling us that there is simply no commercial consequences to this statute at all, that Virginians find this to be of no commercial value in any instance?

Earle Duncan Getchell Jr: --I am totally agnostic on this record because we don't have any data on that.

Justice Anthony Kennedy: Well, you were the one with summary judgment.

Maybe they didn't come forward with the information, but we interpret summary judgment in favor of the losing party.

And so you say you are totally agnostic.

I am concerned you are preventing them by the summary judgment from showing that their -- even with Virginians, there is a commercial value frequently to this information.

Earle Duncan Getchell Jr: All right.

Justice Anthony Kennedy: It's not just political.

Earle Duncan Getchell Jr: On this record -- on this record the position that was accepted by the two courts below entirely in accordance with this Court's existing doctrine was the first inquiry under Privileges and Immunities was whether there was a fundamental right.

If there is not then we make no further inquiry.

Justice Anthony Kennedy: Let's talk about the Commerce Clause.

You are saying you are agnostic.

You have no idea whether or not there might be some commercial value to this information.

I would think as an officer of the State of Virginia or as a matter of judicial notice we would take notice that there is.

Earle Duncan Getchell Jr: I'm saying that under this record that never came up nor should it have come up, because what the court said on Dormant Commerce Clause, both of the courts below, was this was not a regulation of commerce, it is a governmental action--

Justice Ruth Bader Ginsburg: But it has--

Justice Antonin Scalia: You are saying that it's no more necessary for you to show that there's no commercial value to allowing out-of-staters to do this than it is necessary for you to show that there is no commercial value to your not allowing out-of-staters to hunt deer in Virginia.

Earle Duncan Getchell Jr: --I believe you are correct.

Justice Antonin Scalia: You are saying that it's up to Virginia--

Earle Duncan Getchell Jr: Correct, Your Honor.

Justice Antonin Scalia: --whether out-of-staters can hunt for Virginia game.

Earle Duncan Getchell Jr: Correct.

Justice Antonin Scalia: And it's up to Virginia whether out-of-staters can have access to the State's records, that they have no interest in personally, under this law.

It seems to me perfectly logical.

Earle Duncan Getchell Jr: But remember they do have access to this information, both Hurlbert and McBurney.

Justice Anthony Kennedy: That assumes the question as to whether or not there is a general commercial interest in these -- in these -- in these documents.

And you say, oh, you are agnostic.

At least that means you are open to the possibility that there might be a commercial interest.

Earle Duncan Getchell Jr: Here's the problem in this case.

Because I think that we are not at first-tier analysis because there is no regulation of commerce that is discriminatory--

Justice Antonin Scalia: If that's your argument on it, I reject it as Justice Kennedy does.

I didn't understand you to be arguing that there is no commercial value.

Earle Duncan Getchell Jr: --I'm trying to explain why it doesn't matter.

Justice Antonin Scalia: Yeah, that's what I thought.

Earle Duncan Getchell Jr: It doesn't matter because if, on the threshold inquiry, we don't have a discriminatory regulation of commerce but just an ordinary governmental function than only Pike-Church analysis could possibly--

Justice Antonin Scalia: You can't say discriminatory regulation.

What about tax?

I mean, you can't tax discriminatorily, and I wouldn't call taxation in and of itself a regulation of commerce, would you?

Earle Duncan Getchell Jr: --The fact of the matter is that it has been -- taxes have been found to be both violations of privileges and immunities and Dormant Commerce Clause where there was unequal taxation of commerce.

Justice Antonin Scalia: Even though it's -- even though it's not a regulation of commerce?

Earle Duncan Getchell Jr: Okay.

Well--

Justice Antonin Scalia: Okay.

That's your argument then.

Earle Duncan Getchell Jr: --I apologize I chose a word that is not as apt as it should have been, but a regulation or taxation centering around commerce intended to affect and actually affecting commerce, this just isn't that kind of activity.

Justice Elena Kagan: Well, general, just indulge me with a hypothetical.

Suppose that the backgrounds for these statutes was different.

The statutes were the same, but in addition to talking about people's right to know about how their government works, the people spend a lot of time also talking about the economic benefits of a free flow of information in our country.

Would that -- if that were true, and I want to put myself on record as not remembering when these statutes were passed--

[Laughter]

But if that were true, would this case be different or would you still be up here saying the same thing?

Earle Duncan Getchell Jr: If I had -- if I had a statute which on its face dealt with commerce--

Justice Elena Kagan: The statute does exactly the same thing.

I'm just suggesting that there might be two interests behind the statute; one is about knowing the way your government operates and the other is about free flows of information in the economy.

And if both of those things had gone into the mix to create the statutes of this kind, would you be up here saying the same thing or not?

Earle Duncan Getchell Jr: --I would be saying something at least slightly different if I had different facts that I had to deal with, but I think in principle I would be arguing the power of the State to pass this kind of act without having to submit to the Dormant Commerce Clause, at least first-tier Dormant Commerce Clause analysis.

Justice Ruth Bader Ginsburg: --What else can Virginia do besides -- I don't know if there are elk in Virginia, but besides -- to reserve for its own -- for its own people?

You say, this is -- good government in Virginia is for Virginians.

Big game hunting, scarce resource, can be reserved for in-state people.

What else can Virginia do?

Earle Duncan Getchell Jr: Well, Virginia can do things including have in-state tuition.

It can have -- it can subsidize it's own businesses either by training programs or even by other direct subsidy from public FISK.

It limits welfare payments to residents of the Commonwealth.

When the Commonwealth is just acting as a government and not as a regulator or taxer of interstate commerce, it has the status of a coequal sovereign that in its own sphere is allowed to do its own policy choices.

Justice Elena Kagan: I think the thing, general, that I was trying to get at, it seems to me you have a very good case that these statutes were meant for a different purpose.

But in fact, it seems as though your friends there have a good case that these statutes have been taken over, to a large extent, across the country by economic enterprises doing economic things.

And at that point in time, Virginia's -- and, you know, you are only one of two States -- Virginia's maintenance of this kind of -- no, it's Virginians, Virginia information for Virginians, looks very different from what it might have looked like when the statute was originally passed.

Earle Duncan Getchell Jr: If -- if we were going to say, if you were going to say that this is an inquiry that needs to be made under the Commerce Clause, this would be a particularly poor vehicle for doing it, because, the Fourth Circuit held that the Pike analysis of the district court was not appealed, and therefore this case could not be sent back on remand to develop a burden analysis of a record--

Justice Anthony Kennedy: But Pike is not relevant here.

Pike involves -- the Southern Pacific v. Arizona where there were melons -- where there were melons and Arizona wanted to make sure that you had labels and packing of the melons in Arizona.

That was discriminatory against interstate commerce.

That's not -- that's not Dormant Commerce Clause but that is discrimination, and there is discrimination here.

Earle Duncan Getchell Jr: --Well, there's -- there's discrimination only in the sense that we discriminate against people who we don't let vote because they don't live in the Commonwealth as well.

I mean, we -- this statute has a function.

It's a legitimate function, and--

Justice Anthony Kennedy: You -- you could say the same thing, we don't discriminate against Californians who want to come and pack their melons in Arizona.

Earle Duncan Getchell Jr: --Well, I would say that -- that whether or not somebody can deal with an item in commerce is -- is -- raises Commerce Clause questions.

And just like in Reno v. Condon, where the State of South Carolina was choosing to take its records and sell them into the stream of commerce, there the Court held that -- that they thereby became a thing in commerce.

The records of the tax assessor of the County of Henrico, which are available through the clerk's office to Mr. Hurlbert, are not things or persons in commerce, nor are they--

Justice Anthony Kennedy: It -- it would surprise me if an out-of-State investor who was thinking of putting a large plant in Virginia had absolutely no interest in Virginia's tax policies.

Earle Duncan Getchell Jr: --But they are available.

They are publicly available.

They are not just not available through this adjunct service.

All -- all FOIA is, is a device where you don't have to go and look.

There has always been public access for these -- these records.

Justice Stephen G. Breyer: But there -- there -- suppose -- I think they have an argument, saying of course this information would be useful for gathering national statistics and helping the national economy.

I think that's true.

On the other hand you say, well, but look, there must be something left that the States can reserve to their own citizens.

There must be something.

They can't protect their own commerce; that's clear.

They can't discriminate against people who want to come here and live here.

That's clear.

They can't do this and that and the other thing, but gee, there must be something.

I mean can't they reserve at least their -- their beaches for their own citizens?

No.

Parking near their beaches?

Well, maybe.

And -- and maybe deer.

And if not this, what?

That's the end.

Okay?

So that's basically what you are saying.

This is just an interest in trying to find out how State institutions work, and the voters have the main interest there, and this is other -- so you say the other one is attenuated, but not non-existent.

He says the other is important, though he recognizes States should be able to do something.

So if you were me, how would you decide?

How would you choose?

What is the standard, because you know the -- the Privileges and Immunities Clause is -- is considerably opaque, and there are very few cases on it.

And so what -- how would you tell me to -- to resolve that -- that tension, because there is a tension.

Earle Duncan Getchell Jr: I -- I think there that -- that the important policy issue in this case for us is precisely as you articulated.

There -- there is residual sovereign power in the State to act, and we have to violate the Constitution, clearly, before we lose that authority.

And under existing privileges and immunities doctrine, the privileges and immunities are -- are few; they are -- they have been enumerated in the courts, they are similar in character having to do with commerce, not governmental action.

So I would say you would not extend privileges and immunities.

Justice Antonin Scalia: We are talking about State-owned documents, aren't we?

Earle Duncan Getchell Jr: Yes, Your Honor.

Justice Antonin Scalia: There is not much that's as close to the sovereignty of the State as the possession and right to exclude people from its own records and its own documents, right?

Earle Duncan Getchell Jr: I agree, Your -- Justice Scalia.

Justice Antonin Scalia: So the -- the issue is, can the State allow its own citizens for purposes of seeing that the government is -- is being run on the up-and-up, have access to those documents without letting the whole world?

Earle Duncan Getchell Jr: Yes, Your Honor, that is our position.

Justice Sonia Sotomayor: So why doesn't the dormant Commerce Clause affect the hypothetical I laid out?

Because directly this permits Virginia commercial businesses to get something that out-of-staters can't.

The State is putting this instrument into commerce.

You say, I don't know that.

But make the assumption that we think the record's clear enough on that point.

I know you want to fight me on that, but it's hard -- it's a fight with no legs.

Because you have to know that commercial enterprises in Virginia seek these records.

Earle Duncan Getchell Jr: I am -- I am arguing that -- of course I think we say in our brief that -- that they can be put into commerce.

They are put into commerce.

But we don't put them into commerce.

And we have -- in the architecture of our bill, our act has nothing to do with commerce.

And if a State can't deal with--

Justice Sonia Sotomayor: Tell us under our jurisprudence, the dormant Common Commerce jurisprudence -- I have colleagues who don't -- who don't believe it should exist.

Take that argument out.

Why is this not a dormant Commerce Clause case?

Earle Duncan Getchell Jr: --Because it is not an exercise of the State police power to regulate commerce.

The documents in the -- in the tax assessor's office of the County of Henrico are not things or persons in commerce, nor are they channels or instrumentalities of commerce.

They are just the records of the sovereign, which we will allow our citizens to obtain.

Unless the Court has further questions, I think this argument has been developed from our standpoint.

Chief Justice John G. Roberts: Thank you, General.

Mr. Gupta, you have three minutes remaining.

REBUTTAL ARGUMENT OF DEEPAK GUPTA--

ON BEHALF OF THE PETITIONERS--

Deepak Gupta: Thank you.

Just a few quick points.

First, I just want to clear up on the statute, I want to make it clear that this statute does allow the State to fully recoup its costs, including administrative costs, and the State hasn't said otherwise.

And secondly, the suggestion has been made--

Justice Antonin Scalia: Excuse me.

The -- I -- I think what he's saying is: You don't have to pay the costs of developing and maintaining those records, which costs are paid by the citizens of Virginia, which gives them an additional interest in being able to get to those documents.

You -- you don't claim that -- that you pay for the development and the maintenance of those records.

You just pay for the incremental costs of giving it to you, right?

Deepak Gupta: --That -- that's right, Justice Scalia--

Justice Antonin Scalia: --and Virginians pay for all the rest?

Deepak Gupta: --That -- that's right, Justice Scalia, and that's true of other things, like roads and courthouses.

And I think this gets to -- Justice Breyer asked for our test to try to differentiate this from other services and I'd like to try to provide one.

I think, at least where you've got a function that is reserved to the State -- only the State can do it, only the State can run the archives -- it's necessary as a channel to -- to commerce.

And in the -- in the modern economy, this is as much part of the information infrastructure as transportation is, like courthouses, like archives, like roads.

It would not stretch limited resources; it would not cost the State additional money; and it would not jeopardize important local traditions or institutions--

Justice Ruth Bader Ginsburg: Are you leaving out--

Deepak Gupta: --and I think we feel comfortable--

Justice Ruth Bader Ginsburg: --Are you leaving it -- you -- you switched now -- and you were led there but you switched to the Dormant Commerce clause.

What about your other client, McBurney?

He doesn't have any Dormant Commerce clause claim.

Deepak Gupta: --Right.

And I -- I think the test that I just laid out would work for both clauses.

It's a limiting principle on the justification side.

But that's right: Mr. McBurney does not have a Dormant Commerce clause claim.

His claim is based on equal access to proceedings.

He wanted to get recovery of child support that he was owed.

So he is a creditor seeking to pursue a debt on equal terms with people in the state of Virginia, and the State set up a process: As one step along the way to court, you go to the agency; you ask the agency to enforce.

The agency has unique enforcement tools.

It can suspend someone's driver's license, for example.

It can -- it can intercept income tax refunds, and it can go to court on your behalf.

And all he's asking for is the rules of the game.

He wants to know what procedures apply to that process.

And at least where a -- an agency has a process that directly affects a non-stater in the pocketbook, all we are saying is that equal access to the proceedings means equal access to the information governing those proceedings.

And, finally, I would just like to close by saying that, you know, what I don't think we heard on the justification side from the State was really any justification, because the State can recoup its costs.

And so they are not saying that this will cost them anything more.

Which was the only justification they pressed in -- in the courts below.

And so they are left with the position that they can discriminate simply because they think they can.

And if you look at the Privileges and Immunities clause, it sits right next to the Full Faith and Credit clause, which indicates, if anything, that the Framers thought that the movement of public records across state lines was important to interstate comity.

They changed the Articles of Confederation version, which did not include public records; it only referred to judicial records.

They added a mention of judicial records -- nonjudicial records and saw that that was important to -- to comity across state lines.

But -- but their position is about the step before that.

It's about whether you get the records in the first place.

Thank you.

Chief Justice John G. Roberts: --Thank you, Counsel.

The case is submitted.