Washington attorney Deepak Gupta has built his career on representing the “little guy” in cases where he says “a big institution is doing something that is hard to justify.”
In McBurney v. Young, his latest petition for certiorari, the big institution is the Commonwealth of Virginia and the little guys are two men who could not get the records they wanted under the state’s freedom-of-information act.
The Virginia law only guarantees access to public records to citizens of the state and newspapers, magazines and radio and television stations that circulate or broadcast into Virginia. Gupta wants the Supreme Court to find that the statute violates the Privileges and Immunities Clause of Article IV because it discriminates against non-Virginians, and the dormant Commerce Clause because it discriminates against interstate commerce.
He argues that the U.S. Court of Appeals for the Fourth Circuit’s decision in February that the law is constitutional prevents journalists, policy-makers and businessmen from researching issues of national significance.
“By denying noncitizens the right to access public records, the Commonwealth deprives citizens of other states the opportunity to scrutinize – and learn from – its public policies and actions,” Gupta wrote in the petition, which he filed in June.
Gupta previously worked at Public Citizen and the Consumer Financial Protection Bureau, and opened his own appellate and policy boutique this summer. McBurney is the first court filing for the firm, which will be named Gupta Beck when its fifth attorney joins this month.
While the office will represent plaintiffs in class actions and consumers’ and workers’ rights issues, Gupta expects it to have robust constitutional-law and public-policy practices. Of counsel Brian Wolfman, who co-directs the Georgetown University Law Center’s Institute for Public Representation, and is the former director of the Public Citizen Litigation Group, brought McBurney to the firm. Students in the Georgetown clinic worked on early drafts of the brief.
There are two petitioners in the case. Roger Hurlbert runs a business that specializes in obtaining public records for clients, but could not get the tax documents he sought because he is from California. Mark McBurney once lived in Virginia, and tried to get information regarding his child-support application there after his former wife defaulted on payments.
Gupta first argues that the statute violates the Privileges and Immunities Clause, under which a state cannot discriminate against non-residents on rights that are fundamental to the “livelihood of the Nation.”
Gupta said that the clause protects access to records because political advocacy campaigns routinely use information from public documents. Additionally, he wrote, information requests are instrumental to rights that the Court has already authorized, including doing business, purchasing property and suing in a state.
The Court has not decided a case on Privileges and Immunities grounds in decades, and it needs to address confusion about the scope of the clause, Gupta said.
In 2006, the U.S. Court of Appeals for the Third Circuit invalidated a Delaware law that was similar to the Virginia statute, and citizens-only provisions are in flux in such states as Arkansas and Tennessee. This uncertainty makes it difficult for data companies to do 50-state surveys, Gupta wrote.
Gupta also wants the Court to find that the Virginia act discriminates against interstate commerce. Records-retrieval companies like the one Hurlbert runs are part of a booming industry, and businesses that are not based in Virginia are at a disadvantage under the statute, Gupta wrote.
The Court has held that statutes that favor in-state economic interests are “presumptively invalid,” but the Fourth Circuit avoided that rule when it found that any effect the Virginia law has on interstate commerce is incidental, Gupta wrote.
The Consumer Data Industry Association, as well as coalitions of government transparency groups and media organizations are filing friend-of-the-court briefs in support of Gupta’s petition.
Although the statute does not restrict access for out-of-state newspapers and magazines that circulate in Virginia or radio and television stations that broadcast there, it does affect many online and grassroots outlets.
“Under that exception, the Washington Post can request records in Virginia, but the Huffington Post cannot, and that doesn’t make a whole lot of sense,” Gupta said.
Jamie Schuman is a freelance writer and third-year student at The George Washington University Law School.