McBurney and Hurlbert, along with data and media companies, challenged the state FOIA law under the Constitution's Privileges and Immunities Clause which prohibits states from discriminating against out-of-staters in favor of its own citizens and the Commerce Clause, which prohibits discrimination against interstate commerce. Hurlbert owns Sage Information Services, which obtains public real estate assessments for private clients. McBurney, a former Virginia resident, wanted to get documents from a Virginia child welfare agency involving a child support petition from his divorce from his wife.
The two men say it is unconstitutional to not allow everyone access to the protections of a state's FOIA law, especially considering the growing commerce potential of public records. Especially affected are data miners, who are disadvantaged by their inability to get information directly from Virginia on their own.
"We hold, however, that petitioners' constitutional rights were not violated," Justice Samuel Alito said for the court. "By means other than the state FOIA, Virginia made available to petitioners most of the information 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 dormant Commerce Clause."
The 4th U.S. Circuit Court of Appeals in Richmond had thrown the two men's case out before its appeal to the Supreme Court, but the 3rd Circuit Court of Appeals in Philadelphia struck down a similar citizens-only FOIA act in Delaware.
Other states like Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey have some form of law limiting access to public records for noncitizens.
The case is McBurney v. Young, 12-17.