McBurney filed a state Freedom of Information Act request in Virginia which was denied on the grounds that he was not a citizen of Virginia. He filed suit arguing the citizen’s only approach violated the Privileges and immunities clause of the 14th Amendment and the dormant commerce clause. The district court granted summary judgment to Virginia and the 4th circuit affirmed. Resolving a circuit split, the Court unanimously affirmed. The Court held that the citizen’s only approach did nto violate the right to conduct a common trade as the act did not burden out of state business form conducting their business and the approach recognized the interest of Virginia citizens to have information to hold their government accountable and that they bear the costs of the records system. The Court held the citizen only approach did not violate the right to own and transfer property as the land records are freely available and in many instances posted on eh internet. The Court held that the citizen only approach did not violate the right to access public proceedings as Virginia’s rules of court allow discovery in civil cases and another Virginia statute allows access to information generated about a person whether the person is a citizen or not. In fact, McBurney utilized that statute to obtain most of the information he sought in his request. Finally, the Court rejected any general right to equal access to information noting that there was no such right in the common law or at the time of the founding. Further, freedom of information acts are recent innovations and the Union has not been threatened by citizen only approaches. The Court also rejected the dormant commerce clause claim holding freedom of information laws neither regulate or burden interstate commerce and, in any event, having created the “market’ for copies of documents, Virginia is allowed under precedent to limit the benefits to its citizens. Justice Thomas filed a concurrence noting his position that there is no dormant commerce clause limitation on state power.
The writ of certiorari was dismissed as improvidently granted. A three judge concurrence was filed arguing that the writ was granted on the factual understanding that the delays in Boyer’s case were due to a failure to pay for court appointed attorneys. The concurrence argued that the record in fact demonstrates that most of the delay came from repeated continuance requests from the defense. Thus, the concurrence argued dismissal was appropriate as the question presented assumed facts which turned out to be incorrect. A four judge dissent was filed which argued that pretrial delay due to lack of funding must be counted against the state for speedy trial purposes. As Louisiana state courts failed to do so, the dissent would have remanded for a correct analysis. It noted that Louisiana’s public defender system generally is underfunded and overworked and expressed regret that the majority declined to clarify the effects of this underfunding for speedy trial claims.