Virginia’s FOIA allows “citizens of the Commonwealth” access to certain government records. A citizen of Rhode Island and a citizen of California tried to use the law to get records, but they were rebuffed because they were not Virginians. They sued, contending that Virginia’s FOIA violates the Privileges and Immunities Clause in Article IV and the dormant Commerce Clause. They lost.
Judge Agee wrote the opinion in McBurney v. Young, in which Judge Niemeyer and Judge Gregory joined.
The challenge relied heavily on a Third Circuit ruling, Lee v. Minner, 458 F.3d 194 (3d Cir. 2006), that held unconstitutional a similar Delaware law. Judge Agee wrote that the decision in Lee extended the Privileges and Immunities Clause beyond what the Supreme Court has staked out, and that, in any event, the right at issue in that case was different from the right at issue in the Fourth Circuit case.