(Slip Opinion)

OCTOBER TERM, 2012

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MCBURNEY ET AL. v. YOUNG, DEPUTY

COMMISSIONER AND DIRECTOR, VIRGINIA

DIVISION OF CHILD SUPPORT ENFORCEMENT,

ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT
No. 1217. Argued February 20, 2013Decided April 29, 2013
Virginias Freedom of Information Act (FOIA) grants Virginia citizens
access to all public records, but grants no such right to nonVirginians. Petitioners McBurney and Hurlbert, citizens of States
other than Virginia, filed records requests under the Act. After each
petitioners request was denied, they filed a 42 U. S. C. 1983 suit
seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlberts case, the dormant
Commerce Clause. The District Court granted Virginias motion for
summary judgment, and the Fourth Circuit affirmed.
Held:
1. Virginias FOIA does not violate the Privileges and Immunities
Clause, which protects only those privileges and immunities that are
fundamental. See Baldwin v. Fish and Game Commn of Mont.,
436 U. S. 371, 382, 388. Pp. 312.
(a) Hurlbert alleges that Virginias FOIA abridges his fundamental right to earn a living in his chosen professionobtaining property
records on behalf of his clients. While 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, the Court has struck down laws as violating this privilege
only when they were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Toomer v. Witsell, 334 U. S. 385,
395, 397. The Virginia FOIAs citizen/noncitizen distinction has a
nonprotectionist aim. Virginias FOIA exists to provide a mechanism

MCBURNEY v. YOUNG
Syllabus
for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone
foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Any effect the Act has of preventing citizens of other
States from making a profit by trading on information contained in
state records is incidental. Pp. 46.
(b) Hurlbert also alleges that Virginias FOIA abridges the right
to own and transfer property in the Commonwealth. The right to
take, hold, and dispose of property has long been seen as one of the
privileges of citizenship. See, e.g., Paul v. Virginia, 8 Wall. 168, 180.
However, Virginia law does not prevent noncitizens from obtaining
documents necessary to the transfer of property. Recordslike title
and mortgage documentsmaintained by the clerk of each circuit
court are available to inspection by any person. Real estate tax assessment records are considered nonconfidential and are often posted
online, a practice followed by the county from which Hurlbert sought
records. Requiring a noncitizen to obtain records through the clerks
office or on the Internet, instead of through a burdensome FOIA process, cannot be said to impose a significant burden on the ability to
own or transfer property in Virginia. Pp. 68.
(c) McBurney alleges that Virginias FOIA impermissibly burdens his access to public proceedings. 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, but that
requirement is satisfied if the nonresident is given access . . . upon
terms which . . . are reasonable and adequate for the enforcing of any
rights he may have, even though they may not be . . . the same in extent as those accorded to resident citizens, Canadian Northern R.
Co. v. Eggen, 252 U. S. 553, 562. Virginias FOIA clearly does not deprive noncitizens of reasonable and adequate access to Commonwealth courts. Virginias court rules provide noncitizens access to
nonpriviledged documents needed in litigation, and Virginia law
gives citizens and noncitizens alike access to judicial records and to
records pertaining directly to them. For example, McBurney utilized
Virginias Government Data Collection and Dissemination Practices
Act to receive much of the information he had sought in his FOIA request. Pp. 810.
(d) Petitioners sweeping claim that the Virginia FOIA violates
the Privileges and Immunities Clause because it denies them the
right to access public information on equal terms with Commonwealth citizens is rejected because the right to access public information is not a fundamental privilege or immunity of citizenship.

Cite as: 569 U. S. ____ (2013)

Syllabus
The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws. See, e.g., Los Angeles Police Dept.
v. United Reporting Publishing Corp., 528 U. S. 32, 40. Moreover, no
such right was recognized at common law or in the early Republic.
Nor is such a sweeping right basic to the maintenance or well-being
of the Union. Baldwin, supra, at 388. Pp. 1012.
2. Virginias FOIA does not violate the dormant Commerce Clause.
The common thread among this Courts dormant Commerce Clause
cases is that the State interfered with the natural functioning of the
interstate market either through prohibition or thorough burdensome
regulation. Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806.
Virginias FOIA, by contrast, neither prohibits access to an interstate
market nor imposes burdensome regulation on that market. Accordingly, this is not properly viewed as a dormant Commerce Clause
case. Even shoehorned into the Courts dormant Commerce Clause
framework, however, Hurlberts 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. 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. Pp. 1214.
667 F. 3d 454, affirmed.
ALITO, J., delivered the opinion for a unanimous Court. THOMAS, J.,
filed a concurring opinion.

Cite as: 569 U. S. ____ (2013)

Opinion of the Court

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

_________________

No. 1217
_________________

MARK J. MCBURNEY, ET AL., PETITIONERS v. NA-

THANIEL 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. 2.23700 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. 2.23704(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 Commonwealths refusal to furnish the additional
information did not abridge any constitutionally protected
privilege or immunity. Nor did Virginia violate the dor-

MCBURNEY v. YOUNG
Opinion of the Court

mant 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 Commonwealths 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 agencys 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. 111099
(CA4), p. 39A. The agency denied McBurneys request on
the ground that he was not a Virginia citizen. McBurney
later requested the same documents under Virginias Government Data Collection and Dissemination Practices Act,
Va. Code Ann. 2.23800 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.

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Opinion of the Court

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 Assessors 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 Hurlberts case, the
dormant Commerce Clause. The District Court granted
Virginias 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 361240 (2012 Cum.
Supp.); Ark. Code Ann. 2519105 (2011 Supp.); Del.
Code Ann., Tit. 29, 10003 (2012 Supp.); Mo. Rev. Stat.
109.180 (2012); N. H. Rev. Stat. Ann. 91A:4 (West
2012); N. J. Stat. Ann. 47:1A1 (West 2003); Tenn. Code
Ann. 107503 (2012). In Lee v. Minner, 458 F. 3d 194
(2006), the Third Circuit held that this feature of Delawares 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 peo-

MCBURNEY v. YOUNG
Opinion of the Court

ple, 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 Commn 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 Virginias 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 fourthframed broadlyis not
protected by the Privileges and Immunities Clause.
A
Hurlbert argues that Virginias 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

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Opinion of the Court

the citizens of that State ). But the Virginia FOIA does

not abridge Hulberts 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 States 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 States
counterassertion that the statutes 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-ofstate 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.
Virginias FOIA differs sharply from those statutes. By
its own terms, Virginias 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.

MCBURNEY v. YOUNG
Opinion of the Court

Va. Code Ann. 2.23700(B) (Lexis 2011). Hurlbert does

not allegeand has offered no proofthat 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. 2.23700(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.
5354. 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

Cite as: 569 U. S. ____ (2013)

Opinion of the Court

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
recordslike title documents and mortgage recordsthat
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 States 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, 55106 (Lexis
2012); notices of federal tax liens and other federal liens
against property, 55142.1; notices of state tax liens
against property, 58.1314 (Lexis 2009) (state taxes
generally), 58.1908 (estate tax liens), 58.11805 (state
taxes generally), 58.12021(A) (liens filed by agencies
other than the Tax Commission); and notice of mortgages
and other encumbrances, 8.01241 (Lexis Supp. 2012).
A similar flaw undermines Hurlberts 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 noncit-

MCBURNEY v. YOUNG
Opinion of the Court

izens. 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. 58.13122.2
(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 Virginias 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

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 clerks 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 clerks office.
Virginia Code Ann. 58.13300 (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
Virginias Supreme Courtand, in light of the fact that petitioners
have not been afforded an opportunity to rebut its importancewe 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 Courts case file).

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Opinion of the Court

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 noncitizens 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 Commonwealths courts. Virginias 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. 17.1208;
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. 2.23806(A)(3) (Lexis 2011).
McBurneys own case is illustrative. When his FOIA
request was denied, McBurney was told that he should
request the materials he sought pursuant to the Govern-

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MCBURNEY v. YOUNG
Opinion of the Court

ment Data Collection and Dissemination Practices Act.

Upon placing a request under that Act, he ultimately
received much of what he sought. Accordingly, Virginias
citizens-only FOIA provision does not impermissibly burden noncitizens ability to access the Commonwealths
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 Peoples 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

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11

Opinion of the Court

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 anothers 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 broadbased 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

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MCBURNEY v. YOUNG
Opinion of the Court

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, 80 Stat. 383, and Virginias
counterpart was adopted two years later, 1968 Va. Acts ch.
479, p. 690. There is no contention that the Nations 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 Virginias 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

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13

Opinion of the Court

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, 318319 (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 protectionismthat 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, 273274 (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).
Virginias 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
copieswhich would not otherwise existof state records.
As discussed above, the express purpose of Virginias
FOIA law is to ensur[e] the people of the Commonwealth
ready access to public records in the custody of a public

14

MCBURNEY v. YOUNG
Opinion of the Court

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. 2.23700(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 States 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, Hurlberts 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
governmentto 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, Virginias citizens-only FOIA provision does
not violate the dormant Commerce Clause.

Cite as: 569 U. S. ____ (2013)

15

Opinion of the Court

*
*
*
Because Virginias 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.

Cite as: 569 U. S. ____ (2013)

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 1217
_________________

MARK J. MCBURNEY, ET AL., PETITIONERS v. NA-

THANIEL 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 Courts opinion. Though the Court has properly 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).