The Swami gets McBURNeyed by the Supremes

Thoughtful prediction of 6-3 vote for petitioners proves wrong, big time, as 9-0 Court upholds Virginia citizens-only FOIA provision.

[Blogmeister’s Note: Paging Dr. Heimlich! A couple of months ago, our Supreme Court Haruspicator Extraordinaire, the Swami (a/k/a Kevin Goldberg) confidently predicted that the petitioners in McBurney v. Young would win, 6-3, in the Supreme Court. That’s the case involving a constitutional challenge to Virginia’s FOIA law, which is available only to Virginia citizens.  The decision is now out and, oops, the Court went 9-0 the other way. When we were finally able to track the Swami down for a follow-up post on the decision, his initial response was to send us a tear-stained resignation letter expressing his sense of commitment, his pride, his dedication to process, etc., etc. Upon closer examination, however, the letter turned out to be a transparent semi-plagiarism of Richard Nixon’s 1974 resignation speech. We talked the Swami off the ledge, leaned on him a bit, and he has now provided the following take on the Court’s decision.]

Yep, I was wrong, but seriously, nobody – and I mean NOBODY – saw this coming. Sure, plenty of folks might have thought the Court would uphold the law. But none of them would have put their own hard-earned money on a 9-0 verdict.  Not even the most accommodating bookie would have given odds on a unanimous verdict in this one.  And even knowing the final result, I stand by my earlier words that “Justices Ginsburg, Sotomayor and Kagan seemed clearly to favor Messrs. McBurney and Hurlbert”. 

So I’m shocked – not only by the result, or the Court’s unanimity, but by the overwhelming and radical antipathy toward open records laws expressed by the entire Court through Justice Alito’s pen. And I’m angry at the Court’s liberal block for signing onto that position (more on that below).

As I outlined in my earlier post (where you can find the underlying facts, in case you’ve forgotten them), this case came down to two issues: (1) whether the Virginia statue’s restriction violates the Privileges and Immunities Clause of the Constitution because it affects fundamental rights, and (2) whether it violates the “Dormant Commerce Clause” because it interferes with the “natural functioning of the interstate market either through prohibition or through burdensome regulation”. Petitioners McBurney and Hurlbert advanced four separate Privilege and Immunities Clause-based attacks on the Virginia law. 

Here’s how Alito addressed each of those attacks:

  1. “Virginia’s citizens-only FOIA provision abridges [Hurlbert’s] ability to earn a living in his chosen profession, namely obtaining property records from state and local governments on behalf of his clients.”  The Court agreed that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling”. But according to Alito, a law violates the Clause only when the law is enacted for “the protectionist purpose of burdening out-of-state citizens”.  Here the Court found no such “protectionist purpose”. The Virginia statute was enacted to “ensure [Virginians] ready access to public records in the [state government’s] custody . . ., and free entry to meetings of public bodies wherein the business of the people is conducted.” The law is, thus, non-protectionist: it merely allows citizens to oversee the actions of those who govern them.
  2. “The Virginia FOIA abridges the right to own and transfer property in the Commonwealth”. Alito simply found the Virginia law has no such effect, since it provides for the release of these property records through other means (primarily the court system).  
  3. “[The Virginia law] impermissibly burdens [Petitioner’s] ‘access to public proceedings’”. Alito responded here (figuratively, unlike his literal, but silent, mouthing during the 2010 State of the Union Address): “Not true”. First, the Privileges and Immunities Clause doesn’t require that citizens and non-citizens be treated equally. But, more important, citizens and non-citizens do have equal access to Virginia’s judicial records. In fact, when McBurney’s FOIA request was denied, he used another law to receive much of the same information he had sought under FOIA. So the restriction cannot be said to impermissibly burden non-citizen’s ability to access Virginia courts.
  4. “[T]he Virginia FOIA . . . denies [non-Virginia citizens] the right to access public information on equal terms with citizens of the Commonwealth.”  Here, Alito claimed that the Court has “repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”   Taking a stroll through the history of access to information, he observed that, prior to the enactment of the federal FOIA in the late 20th Century, any access to information was guaranteed only to persons with a direct interest in the matters contained in the requested records. So, while Petitioners might have legitimate constitutional rights to earn a living, own or transfer property, or have access to public proceedings (i.e., the rights addressed in the first three arguments summarized above), there simply is no fundamental right in access to information. [Swami’s note: I just threw up in my mouth a little as I wrote that]. 

However, as I made clear in my post-argument prediction, I didn’t think the case would turn on the Privilege and Immunities Clause, even though I firmly believe that access to information is and should be a fundamental right in a democracy. The fact that at least some members of the Court don’t share my belief was apparent during the argument (as I reported). But I sensed at least a split on the Dormant Commerce Clause issue, which a two-part analysis: (a) FOIA-obtainable information is part of the stream of commerce, and (b) the law impermissibly favors Virginia citizens over non-citizens.   

How wrong could I be? As it turns out, the Court didn’t even get to the second portion of that analysis because the nine Justices, led by Alito, concluded that Virginia’s law doesn’t regulate or burden interstate commerce. Rather, the Virginia FOIA law – and, presumably, all FOIA laws – are purely political creatures not related to commercial matters. (This will doubtless come as news to the biggest single segment of requesters of information under the federal FOIA: commercial requesters seeking information about competitor businesses). Further, the Court decided, even if there were a “market” for public documents in Virginia, it’s a market that Virginia created and administers, which, based on earlier cases, means it cannot implicate or violate the Dormant Commerce Clause.

So where does this leave us? 

In the short term, we can expect to see more states start to limit FOIA requests to citizens only (for those keeping score, states already doing so include, in addition to Virginia: Alabama, Arkansas, Missouri, New Hampshire, New Jersey, Tennessee and, though the Third Circuit threw out their law, Delaware). Why? Because from the state’s perspective, such citizens-only restrictions keep costs down and limit the amount of information the state must produce.  What state doesn’t want to do that? And now everybody knows exactly how to draft and justify such a restriction to ensure they withstand constitutional scrutiny.

More disturbingly, perhaps, we have all nine Justices of the Supreme Court of the United States on record as viewing open records laws with disdain, if not outright contempt. How could the Court – and especially its liberal members – endorse this flip blow-off of the right to access public information:

[The broad-based right to access public information is not] “basic to the maintenance or well-being of the Union.” . . .. FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966 . . . and Virginia’s counterpart was adopted two years later. . . . 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.

I expected that from Alito and Scalia (shoot, I’ve heard Scalia express it in so many words before). But not from some of the others. It’s very disheartening.

Still, the Swami will press on, firmly committed to the goal of maximum access to government information. I won’t let this get me down. I can’t let this get me down. Big majorities of the Court have been wrong before (obvious examples: Plessy v. Ferguson 7-1, Dred Scott 7-2). Let’s just hope that this latest instance can somehow get turned around before too much damage is done.

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