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    The Lawletter Blog

    STATE AND LOCAL GOVERNMENT: The Shaky Ground of the Citizens-Only Provision of Virginia's Freedom of Information Act

    Posted by Gale Burns on Wed, Jan 12, 2011 @ 16:01 PM

    The Lawletter Vol 34 No 10, November 4, 2010

    Steve Friedman, Senior Attorney, National Legal Research Group

    Various open meeting and sunshine laws are intended to make governmental meetings and records accessible to the public.

    The purpose of such acts is to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based and to give the public the fullest and most complete information regarding affairs of government as is compatible with the conduct of governmental business.

    73 C.J.S. Public Admininstrative Law and Procedure § 32 (Westlaw database updated May 2010) (footnotes omitted).

    In this regard, and similar to other state statutes around the country, the Virginia Freedom of Information Act ("VFOIA"), Va. Code Ann. §§ 2.2‑3700 to ‑3714, provides for public access to all public records held by the Commonwealth, its officers, and its employees.  See Va. Code Ann. § 2.2‑3700.  Notably, however, the VFOIA restricts access to a certain segment of the public:  "citizens of the Commonwealth [of Virginia]."  Id. § 2.2‑3704(A).

    This limitation was recently challenged as unconstitutional under the federal dormant Commerce Clause and the Privileges and Immunities Clause.  See McBurney v. Cuccinelli, No. 09‑1615, 2010 WL 2902787, at *2 (4th Cir. July 27, 2010) ("[A California citizen] in the business of requesting real estate tax assessment records for his clients from state agencies across the United States [alleged that the denial of his VFOIA request] prevents him from pursuing his common calling on an equal basis with Virginia citizens in violation of the Privileges and Immunities Clause, and because it gives Virginia citizens an exclusive right of access to Virginia's public records, in contravention of the dormant commerce clause."), rev'g in relevant part sub nom. McBurney v. Mims, No. 3:09‑CV‑44, 2009 WL 1209037 (E.D. Va. May 1, 2009) (unpublished).

    While no court in the McBurney litigation has yet to rule on the substantive issue, it is now clear that a non-Virginia citizen had standing to challenge the constitutionality of that aspect of the VFOIA.  See id. at *7B8.

    However, in a concurring opinion, Circuit Judge Gregory wrote separately to address a perceived legal error by the trial court when it suggested that the plaintiff had not established a likelihood of success on the merits with regard to the challenge under the Privileges and Immunities Clause.  See id. at *8 (Gregory, J., concurring) (citing 2009 WL 1209037, at *6).  In particular, Judge Gregory noted that "a state's attempt to burden a right protected by the Privileges and Immunities Clause triggers heightened judicial scrutiny" and "the only circuit to consider an analogous citizens-only provision found that the provision did violate the Privileges and Immunities Clause."  Id. at *8 (citing Lee v. Minner, 458 F.3d 194 (3d Cir. 2006)); id. at *9 (although noting that Delaware had a substantial interest in establishing and defining its own political community, the court held that the citizens‑only provision in Delaware's Freedom of Information Act violated the plaintiff's fundamental right to "engage in the political process with regard to matters of national importance on equal terms with state residents" (internal quotation marks omitted)).

    While the federal courts within the Fourth Circuit are clearly not bound by the Third Circuit's decision in Lee, it could be just a matter of time before the VFOIA's citizen-only provision is likewise struck down as unconstitutional.

    Topics: legal research, Commerce Clause, Steve Friedman, The Lawletter Vol 34 No 10, Virginia Freedom of Information Act, Privileges and Immunities Clause

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