Supreme Court to Determine Public Records Threat

The first Monday in October is traditionally the start of the U.S. Supreme Court’s annual term. During the first week, the Court typically hears a few cases, and announces some of the other cases they have chosen for review during the Term.  This amounts to something less than 200 cases out of thousands of petitions addressed to  the Court.

So, anyway, at the end of last week,  I,  like all good Americans, was perusing the Supreme Court’s orders ( you don’t do that?!) and I came across a case with potential impacts for genealogists.

The case is called McBurney vs Young. It challenges the law of the Commonwealth of Virginia which provides that persons not residing in Virginia are not entitled to access to Virginia’s public records.

I did not know that the Virginia Freedom of Information Act (VFOIA) limts access to public records to citizens of Virginia.  Neither did Mark McBurney, who had lived in Virginia for 13 years before moving to Rhode Island, or Roger Hurlbert,  a Californian who finds real estate records for clients all over the country. The brief filed on their behalf asking the High Court to hear the case, states the facts as follows:

 When McBurney’s former wife defaulted on her child support obligations, McBurney asked the Virginia Division of Child Support Enforcement (DCSE) to file a petition for child support on his behalf while he was living overseas in Australia.  Although DCSE told McBurney that his petition was filed in August 2006, DCSE did not actually file the petition until April 2007, depriving McBurney of almost nine months of child support payments.

Believing that DCSE mishandled his child support petition, McBurney submitted a VFOIA request to DCSE in April 2008 seeking “all emails, notes, files,DCSE denied McBurney’s request because he was not a citizen of the Commonwealth.  In May 2008, McBurney sent a second VFOIA request seeking the same records—as well as treatises, statutes, legislation, regulations, administrative guidelines and other reference materials relied on by DCSE “when one parent is overseas”—but was again denied access to those records because of the statute’s citizens-only provision.1

As for Hurlbert, the petition states:

Roger W. Hurlbert is a California citizen and the sole proprietor of Sage Information Services, a company he formed in 1987. Hurlbert earns his living by obtaining public records from real property assessment officials on behalf of private clients.  The requested documents are often copies of computer-readable databases of property ownership, valuations, land tenure, and land use.  Hurlbert obtains these documents by making requests under state Freedom of Information statutes and negotiating with local officials for the removal of impediments to their release. Although he operates his business from California, his clients seek public documents from real property officials nationwide.

In 2008, a client hired Hurlbert to obtain documents from the Tax Assessor of Henrico County, Virginia.  An official from the office denied Hurlbert’s request because he was not a Virginia citizen.  Hurlbert no longer requests records in Virginia and has advised  clients that he cannot offer his services there.  As a result, he has lost business.2

McBurney and Hurlbert claim that the Virginia law violates their rights under an arcane provision of the Constitution called the “Privileges & Immunities Clause.”3 This part of the Constitution is rarely relied upon by the courts for decision and there have been conflicting rulings from the Courts of Appeals, and from the Supreme Court itself. The fact that the Court decided to hear the case may indicate that the Justices want to clear up this area of law.

The implications for genealogists are clear.  If every state had such a rule, it would be a calamity for genealogists.  The fact that this case arises in Virginia, one of the original states,  makes it just as bad.

The Court gave no indication as to when it will hear arguments in this case, and it may be as late as June 2013 before the case is decided. I’ll keep an eye on it for you.

Show 3 footnotes

  1. McBurney vs Young, Case No. 12-17, Petition for Writ of Certiorari, at p. 5, granted 5 October 2012 (citations omitted)
  2. McBurney vs Young, Case No. 12-17, Petition for Writ of Certiorari, at p. 5, granted 5 October 2012 (citations omitted)
  3. U.S.Const., art. IV, sec. 2

2 Responses to “Supreme Court to Determine Public Records Threat”

  • Craig says:

    Thanks for commenting, James. I used “arcane” in the sense of “understood by very few.” The Privileges and Immunities clause fits that definition, I think! By the way, the petitioners also rely on the dormant Commerce Clause. I think the petitioners have got a great shot at winning this case and the Court will give more guidance on the Privileges and Immunities Clause.

    I didn’t mention it in the body of the post, but the same day McBurney was accepted, the Court also granted cert in a case in which I filed an amicus brief urging the Court to grant the writ. It’s City of Arlington, Tex., v. FCC, wherein petitioners and amici argue that an agency is not entitled to Chevron deference when interpreting its own jurisdiction. Pretty exciting!

  • james Tanner says:

    I guess I would not characterize the Privileges and Immunities clause as arcane since, as an attorney, I used it from time to time in various matters. Especially when laws, like these, differ substantially from state to state.

October 2012
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