The Privileges and Immunities Clause only protects fundamental privileges and immunities.
Petitioners Mark McBurney and Roger Hurlbert are citizens of Rhode Island and California, who both requested documents under the Virginia Freedom of Information Act, but whose requests were denied because of they were not Virginia citizens.. The petitioners filed suit seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hulbert’s case, the dormant Commerce Clause.
Does the Virginia Freedom of Information Act, Va. Code Ann. §2.2-3700 et seq., violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause?
The Court affirmed the judgement of the lower court. It does not violate the Privileges and Immunities Clause or the dormant Commerce Claus because the law does not burden and interstate market. Additionally, Virginia created the market and the provision states that the Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. The challenged provision of the Virginia FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to the Commonwealth’s courts. Further, the dormant Commerce Clause is not violated because it does not interfere with the natural functioning of the interstate market either through prohibition or through burdensome regulation.