Mark McBurney v. Nathaniel Young, 667 F.3d 454

Appellants McBurney and Hurlbert challenge Virginia’s Freedom of Information Act (VFOIA) citizens-only provision as unconstitutional under the Privileges and Immunities Clause and the dormant Commerce Clause.
District Court granted summary judgment for Appellees, holding VFOIA’s citizens-only provision does not violate the Privileges and Immunities Clause or the dormant Commerce Clause.
McBurney, a Rhode Island citizen with Virginia ties, requested records from Virginia DCSE; DCSE denied access as non-citizen and confidential.
Hurlbert, a California citizen, requested Henrico County real estate tax assessment records; Henrico denied access due to non-citizen status.
Appellants argued the provision burdens fundamental rights, equal access to information, and their ability to pursue common callings and economic interests.
Appellants appealed after remand from an earlier decision; the court reviews de novo the constitutional challenges to VFOIA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does VFOIA’s citizenship restriction infringe the Privileges and Immunities Clause?	McBurney/Hurlbert: nonresidents denied rights essential to national unity and equal access to government information.	Appellees: restriction is permissible; rights claimed are not among the Clause’s fundamental rights or are incidental to disclosure.	No violation; citizenship restriction does not burden a protected fundamental right under the Clause.
Does VFOIA violate the Privileges and Immunities Clause by burdening a right to pursue a common calling or engage in political/economic advocacy?	Hurlbert/McBurney: nonresidents’ ability to pursue a common calling or advocate interests is infringed.	VFOIA does not regulate professions or licenses; any effect on a common calling or advocacy is incidental.	VFOIA does not implicate a protected right to pursue a common calling or other asserted rights; claim fails.
Does VFOIA's citizenship restriction violate the dormant Commerce Clause by discriminating against noncitizens in commerce-related effects of information access?	Noncitizens are burdened in pursuing business relying on Virginia records; statute discriminates in effect and purpose.	Statute advances governmental accountability, with only incidental impact on out-of-state businesses; no protectionist purpose.	District court did not err; second-tier Pike analysis applies; no dormant Commerce Clause violation.

Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371 (1978) (permissible state distinctions; only rights bearing on national vitality require equal treatment)
Toomer v. Witsell, 334 U.S. 385 (1948) (pursuit of a common calling fundamental; nonresidents must not face wholesale barriers)
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (Pike test for balancing burdens on interstate commerce when no facial discrimination)
Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553 (1920) (right of citizens to institute actions in other states)
Canadian N. Ry. Co. v. Eggen, 252 U.S. 553 (1920) (right of citizens to sue in other states (cited in Privileges and Immunities discussion))
Saenz v. Roe, 526 U.S. 489 (1999) (fundamental rights protection under Privileges and Immunities Clause; limits on discrimination)
Friedman v. Supreme Court of Va., 822 F.2d 423 (4th Cir. 1987) (incidental burdens on noncitizens not always protected; distinguishes direct regulatory burdens)
Davis v. Dept. of Revenue of Ky., 553 U.S. 328 (2008) (dormant Commerce Clause framework and modern interpretation)
Granholm v. Heald, 544 U.S. 460 (2005) (dormant Commerce Clause—strikes down state protections favoring in-state over out-of-state)