McBurney v. Young

(Slip Opinion) OCTOBER TERM, 2012 1

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. 12–17. Argued February 20, 2013—Decided April 29, 2013

Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens

access to all public records, but grants no such right to non-

Virginians. Petitioners McBurney and Hurlbert, citizens of States

other than Virginia, filed records requests under the Act. After each

petitioner’s request was denied, they filed a 42 U. S. C. §1983 suit

seeking declaratory and injunctive relief for violations of the Privi-

leges and Immunities Clause and, in Hurlbert’s case, the dormant

Commerce Clause. The District Court granted Virginia’s motion for

summary judgment, and the Fourth Circuit affirmed.

Held:

1. Virginia’s 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 Comm’n of Mont.,

436 U. S. 371, 382, 388. Pp. 3–12.

(a) Hurlbert alleges that Virginia’s FOIA abridges his fundamen-

tal right to earn a living in his chosen profession—obtaining 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 burden-

ing out-of-state citizens. See, e.g., Toomer v. Witsell, 334 U. S. 385,

395, 397. The Virginia FOIA’s citizen/noncitizen distinction has a

nonprotectionist aim. Virginia’s FOIA exists to provide a mechanism

2 MCBURNEY v. YOUNG

Syllabus

for Virginia citizens to obtain an accounting from their public offi-

cials; noncitizens have no comparable need. Moreover, the distinc-

tion between citizens and noncitizens recognizes that citizens alone

foot the bill for the fixed costs underlying recordkeeping in the Com-

monwealth. 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. 4–6.

(b) Hurlbert also alleges that Virginia’s 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. Records—like title

and mortgage documents—maintained by the clerk of each circuit

court are available to inspection by any person. Real estate tax as-

sessment 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 clerk’s

office or on the Internet, instead of through a burdensome FOIA pro-

cess, cannot be said to impose a significant burden on the ability to

own or transfer property in Virginia. Pp. 6–8.

(c) McBurney alleges that Virginia’s FOIA impermissibly bur-

dens 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 Pa-

cific 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 ex-

tent as those accorded to resident citizens,” Canadian Northern R.

Co. v. Eggen, 252 U. S. 553, 562. Virginia’s FOIA clearly does not de-

prive noncitizens of “reasonable and adequate” access to Common-

wealth courts. Virginia’s 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

Virginia’s Government Data Collection and Dissemination Practices

Act to receive much of the information he had sought in his FOIA re-

quest. Pp. 8–10.

(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 Common-

wealth citizens is rejected because the right to access public infor-

mation is not a “fundamental” privilege or immunity of citizenship.

Cite as: 569 U. S. ____ (2013) 3

Syllabus

The Court has repeatedly stated that the Constitution does not guar-

antee 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. 10–12.

2. Virginia’s FOIA does not violate the dormant Commerce Clause.

The “common thread” among this Court’s 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.

Virginia’s FOIA, by contrast, neither prohibits access to an interstate

market nor imposes burdensome regulation on that market. Accord-

ingly, this is not properly viewed as a dormant Commerce Clause

case. Even shoehorned into the Court’s 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 Com-

monwealth 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. 12–14.

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) 1

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, Wash-

ington, 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. 12–17

_________________

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 Free-

dom 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, unsuccess-

fully 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 dor-

2 MCBURNEY v. YOUNG

Opinion of the Court

mant Commerce Clause. The state Freedom of Informa-

tion 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 deci-

sion of the Court of Appeals rejecting petitioners’ constitu-

tional 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 Common-

wealth’s Division of Child Support Enforcement to file a

petition for child support on his behalf. The agency com-

plied, but only after a 9-month delay. McBurney attrib-

utes 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 re-

quest 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 han-

dling 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 Gov-

ernment Data Collection and Dissemination Practices Act,

Va. Code Ann. §2.2–3800 et seq., and through that re-

quest 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.

Cite as: 569 U. S. ____ (2013) 3

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 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 Privi-

leges 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 free-

dom 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 Dela-

ware’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 Citi-

zens of each State [are] entitled to all Privileges and Im-

munities 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-

4 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 ad-

vantages 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.” Bald-

win 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 “fundamen-

tal.” 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 call-

ing, 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 pro-

vision 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 occupa-

tion, 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

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

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

not abridge Hulbert’s ability to engage in a common call-

ing in the sense prohibited by the Privileges and Immuni-

ties 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 pur-

pose of burdening out-of-state citizens. See, e.g., Hicklin,

supra, (striking down as a violation of noncitizens’ privi-

leges 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 resi-

dents,” 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 construc-

tion 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 ad-

vantage 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.”

6 MCBURNEY v. YOUNG

Opinion of the Court

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 citi-

zens of the Commonwealth) may obtain an accounting

from the public officials to whom they delegate the exer-

cise 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 underly-

ing 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 in-

formation 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) 7

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

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 sys-

tem 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 Vir-

ginia violates the Privileges and Immunities Clause by pre-

venting 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-

8 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. §58.1–3122.2

(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 cor-

rect 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 clerk’s office.” Tr. of Oral Arg. 38. Neither at oral argu-

ment 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 “reas-

sessment” 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).

Cite as: 569 U. S. ____ (2013) 9

Opinion of the Court

the Virginia FOIA slams the courthouse door on nonciti-

zens; 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 sat-

isfied 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 per-

son, 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 in-

spect 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 Govern-

10 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, Virginia’s

citizens-only FOIA provision does not impermissibly bur-

den 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

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

taining 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 in-

spection 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 recog-

nized in the early Republic. See, e.g., Cormack v. Wolcott,

37 Kan. 391, 394, 15 P. 245, 246 (1887) (denying manda-

mus to plaintiff seeking to compile abstracts of title rec-

ords; “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

12 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 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 Man-

agement 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 unwork-

able in practice”). Nonetheless, the Court has long inferred

Cite as: 569 U. S. ____ (2013) 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, 318–319 (1852); cf. Gib-

bons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.)

(dictum).

Our dormant Commerce Clause jurisprudence “signifi-

cantly 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, regula-

tory measures designed to benefit in-state economic inter-

ests by burdening out-of-state competitors.” New Energy

Co. of Ind. v. Limbach, 486 U. S. 269, 273–274 (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 protection-

ist 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

14 MCBURNEY v. YOUNG

Opinion of the Court

body or its officers and employees, and free entry to meet-

ings 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 avail-

able 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 manu-

facturer. We have held that a State does not violate the

dormant Commerce Clause when, having created a mar-

ket through a state program, it “limits benefits generated

by [that] state program to those who fund the state treas-

ury 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.

Cite as: 569 U. S. ____ (2013) 15

Opinion of the Court

* * *

Because Virginia’s citizens-only FOIA provision neither

abridges any of petitioners’ fundamental privileges and

immunities nor impermissibly regulates commerce, peti-

tioners’ constitutional claims fail. The judgment below is

affirmed.

It is so ordered.

Cite as: 569 U. S. ____ (2013) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–17

_________________

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 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 Com-

merce 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).