McBurney v. Young (12-17)
argument 12-17McBurney v. Young
Supreme Court of the United States
56 min
5 speakers
8 chapters
transcribed 4 days ago
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Transcript
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What is Virginia’s discriminatory public‑records policy and why does it matter?
We'll hear argument this morning first in Case 1217, McBurney v. Young. Mr. Gupta.
Thank you, and may it please the Court. All 50 States have public records laws. Forty-seven of those States make access available to residents and non-residents on equal terms. Virginia, by contrast, enforces a discriminatory access policy. And because commercial requesters make up the vast majority of records requesters, Out-of-state businesses bear the brunt of Virginia's policy.
When was the first of those laws enacted, do you know? I think it's in my adult lifetime that Florida was the first to enact a sunshine law. Am I correct about that?
That's right. All of these laws were in the 60s and the early 70s. The Virginia law was enacted in 1968. And we don't
deny that. covered by privileges and immunities clause, which
nobody had until the 1960s. Well, to be clear, the modern transparency laws are new, but they sit on top of well-established common law rights to access that are based not on modern notions of transparency, but on the right to secure property and other basic — But
those rights still exist in this State, don't they? Cannot you get records of deeds and whatever
the common law would have covered? Well, it's true that Virginia's law exempts deeds from its freedom of information law, but if I understand their position correctly, they would be entitled as a constitutional matter under their theory to preclude people from other states from accessing even deeds.
Well, I'll ask them. I didn't understand that to be their position, but I guess we can ask
them. Well, my client, Mr. Hurlburt, is in the business of gathering property records for his clients. Now, it's true that in Virginia he could get the deeds, But what he can't get and what he principally gathers for his clients are real estate tax assessment records. And those are a much richer storehouse of property-related information than
some of the deed. And you explained that business a little more fully than you did in the brief. He's in the business of collecting records from all the States about tax assessments.
That's right.
And he does that for a client who could very well ask himself. So what is the service that's being performed?
Well, you know, he doesn't just do the routine request. The large data companies are the ones who hire him. And they — if there are routine requests, they can do them themselves, although if they're not based in Virginia, they would still have to hire a Virginian to do it. But they bring him in when there's some flaw in the routine process, where the state is being recalcitrant or the local official is being recalcitrant. And he's an expert in being able to gather these records and knowing the processes, knowing what he's allowed to do and what he's not.
All he has to do is get somebody from Virginia to ask for him, right?
Well, he could hire someone from Virginia to do that, but that's sort of precisely what the — Well, but you don't
have to pay the person too much. He just has to write a letter saying, give me these documents, right?
He would still have to hire someone, and that would be an increased cost.
Well, an increased cost of I don't know how much. hundred bucks, right? Go write a letter, say you want these documents, and when they come to your house, give them to me.
Yeah, for the large data companies, you know, they will hire someone other than him to perform this service. They will, if you're talking about routine requests. But even, you know, even for them, if you're talking about a request that isn't routine, if he has to do something further to enforce the rights, he's going to have to do that in his own name, or the data company will have to hire someone other than him, someone based in Virginia to do that for them. And then he will lose that business. So the lower you go down in the food chain of the data industry, the bigger the effect of Virginia's
policy. How much of an impact, in fact, does it have on his business? I mean, there are 47 states who would provide this information.
Well, for him, in the Virginia market, it completely forecloses him from doing business in the Virginia market.
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Chapters
8 chapters
1
What is Virginia’s discriminatory public‑records policy and why does it matter?
0:00–7:42
2
How does the plaintiff’s business model rely on out‑of‑state access to tax‑assessment records?
7:42–14:23
3
What are the arguments about the economic impact of Virginia’s policy on interstate commerce?
14:23–20:39
4
How do the parties frame the Privileges‑and‑Immunities versus Dormant Commerce Clause claims?
20:39–27:44
5
What historical precedents and statutes do the Justices cite to assess the case?
27:44–35:39
6
Why do the Justices question whether the statute is a regulation of commerce or a governmental function?
35:39–43:56
7
How does the Court evaluate the state’s cost‑recoupment argument and the notion of “incidental” impact?
43:56–51:16
8
What is the Court’s final reasoning on whether Virginia can limit access to its public records?
51:16–57:04