McBurney v. Young, No. 11-1099

Decided: February 1, 2012

Two men sued the Commonwealth of Virginia when their unrelated Freedom of Information requests were denied by the state. The Virginia statute states that only citizens of the Commonwealth have access to the information. Mark McBurney, a citizen of Rhode Island, sought government records regarding a child support dispute against his ex-wife. Roger Hurlbert, from California, sought tax assessment records for his real estate business. When their claims were denied, both men sued under the Privileges and Immunities Clause of the Constitution and Hurlbert brought a claim under the Dormant Commerce Clause arguing that the law prevented him from doing business in Virginia. The district court granted summary judgment for Virginia and both men appealed.

The Fourth Circuit affirmed the granting of summary judgment on the Privileges and Immunities claims. The court recognized that the statute, in practice, had a negative effect on Hurlbert’s ability to pursue his common calling. However, the infringement was incidental, amounted to little more than an annoyance to doing business in Virginia, and did not actually prevent so doing. The court also drew a distinction between McBurney’s right to access the courts of Virginia—which would be protected—and a right “to advocate for his interests” that the Privileges and Immunities Clause has never encompassed.

The court also affirmed the rejection of the Dormant Commerce Clause argument by Hurlbert. Such analyses fall under one of two “tiers.” The more stringent, enumerated in Sierra Club, prevents discriminating against out-of-state businesses for the purpose of protecting or propping-up in-state business. Because the Virginia FOIA statute had no intent to burden foreign business in the state, and any negative effects were incidental, Hurlbert was not entitled to the stricter analysis from Sierra Club. Moreover, because Hurlbert did not challenge the district court’s use of the less stringent Pike balancing test in his appellate brief, the argument was waived and the decision below stands.

Full Opinion

-C. Alexander Cable

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