Mark J. Mcburney et al. v. Nathaniel L. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement et al.

Oral argument transcript · No. 12-17 · October Term 2012 · argued February 20, 2013 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Deepak Gupta, Washington, D.C., for the petitioner
• Earle Duncan Getchell Jr., State Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument this morning first in Case 12-17, McBurney v. Young. Mr. Gupta? ORAL ARGUMENT OF DEEPAK GUPTA ON BEHALF OF THE PETITIONERS

Deepak Gupta: Thank you, and may it please the Court: All 50 States have public records laws. 47 of those States make access available to residents and nonresidents 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.

Justice Scalia: When -- when was the first of those laws enacted? Do you know? I think it's -- I think it's in my adult lifetime that Florida was the first to enact a sunshine law. Is that -- am I correct about that?

Deepak Gupta: That's right. All of these laws -­

Justice Scalia: In the '60s. 3 Alderson Reporting Company Official

Deepak Gupta: In the '60s and the early '70s. The Virginia law was enacted in 1968. And we don't deny that -­

Justice Scalia: And you say that's a fundamental -- that's a fundamental right covered by Privileges and Immunities Clause, which nobody had until the 1960s?

Deepak Gupta: Well, to be clear, the modern transparency laws are new, but they sit on top of well-established common-law right -- rights to access that are based, not on modern notions of transparency, but on the right to secure property and other basic interests -­

Justice Scalia: But those -- those rights still exist in this State, don't they? Cannot you get records of deeds and whatever the common law would have covered?

Deepak Gupta: Well, it's true that -- 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.

Justice Scalia: Well, I'll ask them -- I didn't understand that to be their position, but -- but Alderson Reporting Company Official I guess we can ask them.

Deepak Gupta: Well, my client, Mr. Hurlbert, is in the business of gathering property records for his clients. Now, it's true that, in Virginia, he could get the deed, 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 simply the deed.

Justice Ginsburg: Can you -- can you explain that business a little more fully than you did in the briefs? He's in the business of collecting records from all the States about tax assessments.

Deepak Gupta: That's right.

Justice Ginsburg: And he -- and he does that for a client who could very well ask himself. So what is the service that's being performed?

Deepak Gupta: Well, he -- you know, he doesn't just do the routine request. The -- the large data companies are the ones who hire him. And they -- if they're 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 -- the routine process where the -- the State is being recalcitrant or the local official is being Alderson Reporting Company Official recalcitrant. And he's an expert in being able to gather these -- these records and knowing the process is knowing what he's allowed to do and what he's not allowed to do.

Chief Justice Roberts: All -- all he has to do is get somebody from -- from Virginia to ask for him, right?

Deepak Gupta: Well, he could hire someone from Virginia to do that, but that's -- you know, that's sort of precisely what the -­

Chief Justice Roberts: 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?

Deepak Gupta: He would still have to hire someone, and that would be an increased cost. And -- for

Chief Justice Roberts: Well, an increased cost of -- I don't know how much -- 100 bucks, right? Go -- write a letter, say you want these documents, and, when they come to your house, give them to me.

Deepak Gupta: 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 -- a request that isn't routine, if he has to do something further to Alderson Reporting Company Official 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.

Justice Ginsburg: How much -- how much of an impact, in fact, does it have on his business? I mean, there are 47 States who will provide this information.

Deepak Gupta: Well, for -- for him, in the Virginia market, it completely forecloses him from doing access -- business in the Virginia market. And, if other States were to have policies like this, he wouldn't be able to do business in those States as well. So if -- if the focus is on him and his business in Virginia, it completely cuts him off. If the focus is on -- on what the effect is in the aggregate, on the market as a whole, because most public records requests are commercial requests, it's going to have an effect on most commercial requesters who are out-of-State. And -­

Justice Scalia: Mr. Gupta, I -- I understand that the -- the reasoning of Virginia in not Alderson Reporting Company Official allowing out-of-State people to -- to get these FOIA requests is the following: That the purpose of these -­ these laws -- and I remember it when the first ones were enacted -- government in the sunshine. The purpose of it was not to enable people to get information, per se; it was to enable people to see how their government is working, so that they could attend to any malfeasance that is occurring in the process of government. It seems to me entirely in accord with that purpose of these laws to say it's only Virginia citizens who -- who are concerned about the functioning of Virginia government and ought to be able to get whatever records Virginia agencies have. What's -- what's wrong with that reasoning?

Deepak Gupta: A few responses, Justice Scalia. First, transparency was one purpose, but, as I said, these laws also carried forward the much more longstanding rights to access based on personal interests and property interests. Also, even at the time that these laws were enacted -­

Justice Scalia: But -- but you don't need any personal or property interest under these laws. You can just -- just out of curiosity, if you -- if you were a Virginian, at least, in Virginia, even though you have no interest in the matter at all, you can ask the agency Alderson Reporting Company Official for records about this or that. It -- it can't be based on -- on the traditional property interest. It's based on the ability of the citizens of the State to find out what the -- what the government of the State is up to.

Deepak Gupta: Even -- even at the time that these laws were enacted in the -- in the '60s, it was well-understood that they were going to have a big commercial impact. The property records industry was in full swing by the end of the late 19th Century.

Justice Ginsburg: But the point is that FOIA is tied to, as Justice Scalia said, the citizens should know what their government is doing. And you don't have to give any reason at all, if you were a part of that political community. Now, Virginia doesn't allow people from out-of-State to vote. They're not part of Virginia's political community. So why isn't this -- if you're not part of the political community, then you don't fall under FOIA, which is a peculiar statute, in that everybody who is covered by it can get whatever they want, and they don't have to give any reason for it.

Deepak Gupta: Right. Well, elections just simply don't work if you -- if you allow noncitizens to participate in elections or if you can't wall off the Alderson Reporting Company Official State in that respect. But what the State can't say is, simply because one purpose of this law is that we want to constitute ourselves as a political community, that we can exclude activities that have a big commercial effect. And -- you know, when we're looking under the Dormant Commerce Clause or under the Privileges and Immunities Clause, this Court's cases have said repeatedly you don't look to uncover the original legislative purpose, you look to whether there is discrimination, which there is here, on its face, and you look to whether there is a discriminatory effect. One example of how this policy is actually being -­

Justice Kagan: And is the only thing that's necessary -- excuse me -- is the only thing that's necessary that the law affect a few people commercially? I mean, how much -- how many of the requesters have to be engaged in some kind of commercial activity in order for your arguments to work?

Deepak Gupta: Well, what this Court has said is that there is no de minimis exception, if there's discrimination against commerce, but, here, what's going on is anything, but de minimis. Virginia does not deny that the -- the vast majority of the requesters are Alderson Reporting Company Official commercial requesters -- the vast majority of out-of-State requesters are commercial requesters. Their -- the amicus brief supporting their side, the Local Government Attorneys of Virginia amicus brief, at page 30, explains the way this policy -­ policy is being implemented, is that noncommercial requests are typically honored, but out-of-State requests by data miners are being categorically denied under the policy.

Chief Justice Roberts: But this -- this is not -- this is not a regulation of commerce. It's a State practice that may have an incidental effect on commerce, and the incidental effect may be disproportionate, depending upon whether you're State or local, but it's not a regulation of commerce.

Deepak Gupta: But that's -- that was the Fourth Circuit's theory, and I think incidental can mean a few different things, and I think in -- in their opinion, it -- it does mean at least three different things. So maybe it would be helpful if I try to unpack that. If it means incidental in terms of the effect on my client's business, I think, as I've explained, it's anything, but incidental; it completely forecloses him from the market. If it means incidental Alderson Reporting Company Official in terms of the -- the aggregate effect of this statute, again, it's not incidental because the vast majority of -- of affected parties under this policy are out-of-State commercial requesters, particularly data companies. And -- you know, if it means incidental compared to the purpose of the statute, as I've said, transparency was one purpose of the modern FOIA laws, but they also subsumed and sit on top of all of the longstanding rights of public access that have been around since the -- the first settlements in the United States -- or before the United States, when, in order to have a functioning property system, we recognized that you've got to have records of who owns what and -- and those records have to be made available to anyone in order to exercise property rights.

Chief Justice Roberts: What if the State of Virginia says, as a policy, we want to help Virginia businesses, and so we're going to open a business training, best practices institute, where you're going to learn how to be a better business person, but the only people who can come in are -- are Virginia businesses.

Deepak Gupta: Right.

Chief Justice Roberts: Under your theory, Alderson Reporting Company Official because that will have an effect -- an incidental effect on commerce in a way that's discriminatory, is -- is that unconstitutional?

Deepak Gupta: I don't think so. And there are a couple of distinctions. First, that's not something that the State exclusively is able to provide. It's not like the courthouse or the public archives across the street or the road that runs between them that only the -- the State is able to provide. Anyone can provide a business training institute, so the State is just one player among many. Also -- running a

Justice Scalia: But that -- that just goes to the extent of the impact, not -- not on the principle. And you say extent doesn't matter. You say there's no such thing as a de minimis exception.

Deepak Gupta: No -­

Justice Scalia: So that -- that explanation doesn't -- doesn't seem, to me, to hold water.

Deepak Gupta: Well, maybe I didn't explain it very well. To be clear, I think it's more than just a difference in degree; it's a difference in kind. These are fundamentally different when -- when you're talking about running the courthouse or running the public Alderson Reporting Company Official archives, nobody else can do that. Nobody else can collect -- you know, make tax assessments, collect those records, and keep the official public archive of those things. That -­

Justice Scalia: So what? So what? Except to the extent that that bears upon how much of a -- an imposition this is upon interstate commerce. It seems, to me, that's the only relevance of that point.

Deepak Gupta: Well -­

Justice Scalia: And -- and you dismiss that relevance. You say it doesn't matter how extensive the impact is on -- on interstate commerce.

Deepak Gupta: Well, to the extent that you -­ you think it does matter, I mean, that -- that distinction doesn't matter in this case because the impact is -- is great. The principal impact is an impact on out-of-State commerce. But let me -­

Chief Justice Roberts: Is that -- when you're talking about impact, is that a Pike analysis?

Deepak Gupta: No. I think this -- if you were in -- in the dormant Commerce Clause, this would be the per se rule of invalidity. You have facial discrimination. The -- the -­

Chief Justice Roberts: Well, I thought, if Alderson Reporting Company Official it was facial discrimination, you're not concerned about impact.

Deepak Gupta: That's right. That's right.

Chief Justice Roberts: I thought a question of talking about the effects on interstate commerce, that's the -- you know, the Pike analysis.

Deepak Gupta: No. What this Court has said is that -- that the first -- sort of first-tier scrutiny, the per se rule is -- is for cases where there's discrimination on its face or discrimination in effect. And then you've got this other category for the -- the Pike analysis, where the State regulates evenhandedly.

Justice Kennedy: What's your closest case in support of the proposition that this is impermissible as a discrimination against interstate commerce? What's your best case?

Deepak Gupta: When you say, "this," you mean the -- that public records access is commerce?

Justice Kennedy: If -- if you -- you are arguing, as one of your arguments here, that this is discriminatory as to -- as to interstate commerce, as I understand your argument, what is the best case you have to support your position? What's the closest case?

Deepak Gupta: Well, I think if you're -- if you're -- if the question is about whether or not Alderson Reporting Company Official records access is commerce, there's Reno v. Condon this Court's unanimous decision -­

Justice Kennedy: Well, my question is what's the best case you have for your argument?

Deepak Gupta: Well, I think -- you know, this Court's unanimous decision in Reno v. Condon held that, because people buy public records and sell them in interstate commerce, that's, indisputably, interstate commerce. So we -­

Justice Kennedy: But that wasn't a discrimination. That wasn't a -­

Deepak Gupta: That's right.

Justice Kennedy: That's just -- that goes to the question whether or not this is commerce.

Deepak Gupta: That -- that's right.

Justice Kennedy: What -- what is your best case to show that this is discriminatory in violation of our precedence?

Deepak Gupta: Well, Virginia doesn't deny that there's discrimination on its face, so I take your question to be asking -- you know, what about the commerce aspect? And in Reno v. Condon -­

Justice Kennedy: Now -- if I have to write the opinion, what case do I put down? I'm waiting. Alderson Reporting Company Official

Deepak Gupta: Yeah, I mean, you -- okay. So you can also look to Camps Newfound, which, I think -­ you know, was much -- much more attenuated to commerce. There, you had a generally applicable law, a property tax law -­

Justice Breyer: If I only have time to read one case -­

Deepak Gupta: Yeah.

Justice Breyer: -- or possibly two, which would you like me to read? I think that's, basically, the question. (Laughter.)

Deepak Gupta: Yeah. I mean -- you know, look. There's no case that's -- that's entirely on all fours, but -­

Justice Breyer: Okay. But I assume you don't want me -­

Justice Kennedy: That's why you're here. (Laughter.)

Deepak Gupta: So right. So -- so -- okay. So the Camps Newfound case is -- is a case where you had a generally applicable law. It was a property tax law. It exempted -- you know, charities that served primarily in-State residents. It was -- there is no evidence that the Alderson Reporting Company Official State of Maine intended that to be a -- you know, a discrimination against commerce and, obviously, swept more broadly and affected both commerce and non-commerce. But this Court said that -- you know, you had facial discrimination against commerce because there were people operating these summer camps, and they were treated differently -­

Justice Breyer: I'll look at those. But I think the Commerce Clause, basically, has, as its objective, insofar as it's dormant, to prevent a legislature or decisionmaker within its State discriminating in favor of their own State producers.

Deepak Gupta: Right.

Justice Breyer: Now, it's pretty hard for me to put this case into that mold.

Deepak Gupta: Well, I mean, one -- you know, one piece of evidence, Justice Breyer, is the media exception to the Virginia statute. It -- this -- this makes it clear that Virginia was aware that people who were requesting information for commercial purposes were going to use this statute and they exempted the press -­

Justice Scalia: It's just Virginia media, though, isn't it? Isn't it only media that -­

Deepak Gupta: That's right, Justice Scalia. So it's -­ Alderson Reporting Company Official

Justice Scalia: -- exists or is broadcast into Virginia?

Deepak Gupta: That's right. So it's -­ it's -­

Justice Scalia: Well, that's consistent with their purpose, that this statute is meant to assure good, honest government in Virginia.

Deepak Gupta: Well, if this is a statute, it's a pretty unusual statute that discriminates among newspapers, so it says -­

Justice Breyer: If it does what the -- I had exactly the same question for both parts of your argument, that what it's their -- am I right in thinking that anyone can get any information -- anyone in any State can get any information that pertains to him or her? Is that right or not?

Deepak Gupta: There is a separate Virginia -­

Justice Breyer: Is that right or not?

Deepak Gupta: Yes. There is a separate Virginia statute that allows this.

Justice Breyer: Okay. That's what I wanted to know, whether it's separate or not.

Deepak Gupta: That's right.

Justice Breyer: Anyone from Alaska to Hawaii can get any information that pertains to him or Alderson Reporting Company Official her. Second, that this has nothing to do with judicial records, there is a different statute that makes judicial records public.

Deepak Gupta: That's correct.

Justice Breyer: Okay. So we're, now, talking about the class of information, other than the two classes I've mentioned. And I then ended up -- and I'd like you to add something to this, if you can, that, really, this is about -- since getting information involves usually a benefit to the recipient, but, sometimes, harm to the person the information is about, that willing to run that harm and risk of harm is the interest in State good government, okay?

Deepak Gupta: Uh-huh.

Justice Breyer: Now, if that's the interest, that's an interest that probably a State has the right, just as it has the right to say other people can't vote in State elections, if that's the interest, then I guess it could take reasonable measures related to that interest. All right. Now, that is the -- the argument or the position that I would appreciate your addressing.

Deepak Gupta: Sure. You know, that -- we 20 Alderson Reporting Company Official don't deny that that's an interest that the State has, but then you have to see whether the -- the interest is reasonably furthered by the statute. And, here, you have a resource that is not finite, and the statute allows the State to recoup its expenses. So nothing is lost to Virginians. There isn't any loss in transparency to Virginians by extending access to out-of-State data companies.

Justice Ginsburg: But if it costs for Virginia -- Virginia has to take care of its own, and, if it has to service FOIA requests from all over, it's going to cost the State. It's going to have to hire people to do this. They're going to have to spend many hours going through these records, so the State doesn't -- it wants to conserve its resources for its own people.

Deepak Gupta: But -- but there's no loss in resources, Justice Ginsburg, because the statute allows Virginia to fully recoup any administrative expenses.

Justice Sotomayor: Counsel, I'm having -­

Justice Scalia: But they -- but they just don't want out -- they -- they don't want outlanders mucking around in -- in Virginia government. It's perfectly okay for good old Virginians to do that, but they don't want outlanders to do it. Why -- why is that Alderson Reporting Company Official unreasonable?

Deepak Gupta: Yeah. That -- that is certainly their interest. But you've got to see whether the policy serves -- serves -- you know, the interest, and -- and this is a statute that is supposed to promote transparency. It actually makes it less transparent.

Justice Sotomayor: Counsel, I'm -- I -­ there is underlying your argument a sort of fundamental belief that you are entitled to relief -- pardon the alliteration -- simply because the statute discriminates between citizens and noncitizens. Is that your position?

Deepak Gupta: No, not at all, I mean -­

Justice Sotomayor: So if it's not, what are the two rights that you -- or what rights are it that you're claiming have been violated? You say privileges and immunities. What's the privilege or immunity?

Deepak Gupta: It's the privilege or immunity of pursuing a common calling across State borders. So there's no dispute here that Mr. Hurlbert's common calling is -- is gathering data. In fact, those are the principal users of public records laws.

Justice Sotomayor: So is this -- is this an as-applied challenge to the -­

Deepak Gupta: That's right. Alderson Reporting Company Official

Justice Sotomayor: All right. MR. GUPTA: That's right.

Justice Sotomayor: So this is an as-applied challenge?

Deepak Gupta: Yes. So -- so it's an as-applied challenge with respect to Mr. Hurlbert's common calling. There's no -- there's no dispute that that is his common calling and that this law has the effect of completely cutting him off from pursuing his common calling in the Virginia market and that 47 other States -­

Justice Ginsburg: Then you would be doing something very strange with this statute because you would be saying Hurlbert has a right to this because it's his business. But the statute, the character of this statute is it doesn't matter what you want the information for. But you're saying the out-of -- the in-Stater, it doesn't matter. Out-of-Stater, is it your argument that, if this out-of-Stater has a good reason for getting this and it's related to the out-of-State's business, so you -- you're changing the character of a FOIA statute, which is it doesn't matter what you want it for.

Deepak Gupta: Right. I mean, you would -- you Alderson Reporting Company Official know, we would -- we would ask that you rule that the statute is unconstitutional, as applied to him, and then Virginia would have the choice, if it has a -­

Justice Sotomayor: I -- I'm having a problem, and then I think it's Justice Ginsburg's problem, which is, absent the statute, he can't demand that Virginia provide him with this information because that's how he wants to work, correct? So what's the added value that gives him a right to demand it merely because a statute exists? He doesn't have a right to the information.

Deepak Gupta: Well, he's -- all he's asking for is information that's available in the public archives on equal terms with Virginians. In the same way that -- that someone who -­

Justice Breyer: He -- he has a very reasonable request in my view, but the question isn't the reasonableness of his request. The question's -­ you know, whether they can do it. And the -- the way -­ the work -- the thing that's bothering me on the work part is this: It seems that the work is sort of tailored to the statute. It's in this way. I -- I have a job, and my job is to study election processes. And I write reports, and I find amazing things about differences Alderson Reporting Company Official among States. They're truly amazing. And I say -- you know, it would help me a lot if I was actually a voter in each of these States. That would help my job. It would lend authenticity, and I could learn things that I probably couldn't learn otherwise. Now, does that add anything to the argument? I mean, I don't think so, but it sounds a little bit like you're making that kind of argument -­

Deepak Gupta: No.

Justice Breyer: -- and -- and they either do have the right or they don't. And I don't know that it helps that I -- that I say, well, I really want it for my work.

Deepak Gupta: Right. But this is -- this is a profession that has existed since the founding era. I mean, we've -- you know, we've cited cases in our opening brief of -- of people hiring professionals to search the records for them before engaging in property transactions. By the late 19th Century, you had an enormous industry that was designed to do this. So this isn't -- Mr. Hurlbert isn't someone who's making up some profession. He's part of a very large industry that has done this for a very long time. And that industry, yes, like lawyers depend on Alderson Reporting Company Official courthouses or truckers depend on roads, his industry depends on access to the public archives. And -- you know, it's true that -- that now you have these modern public records laws, but I -- I think Virginia's argument would be the same if you were just talking about can -- can they bar the doors to the archives building? Can they bar the doors to the property records? So there's no -- I don't see any distinction in kind -­

Chief Justice Roberts: Is this -- is this your Privileges and Immunities argument or your dormant Commerce Clause argument?

Deepak Gupta: You know, I think the logic of both arguments are similar, but I think it, most clearly, is illustrated in the Privileges and Immunities context where -­

Chief Justice Roberts: So then it's not enough that this is a big deal to your client. It has to be something that is essential to hold the country together as a national unit. And it seems, to me, it's a bit of a stretch to say somebody gathering records about commercial -- under FOIA fits that description.

Deepak Gupta: I don't think it's a stretch at all, Justice -- Chief Justice. The -- the aggregators of records make possible mortgage origination, credit Alderson Reporting Company Official reporting, insurance adjustment. The -- the economy -- and you have an amicus brief -­

Chief Justice Roberts: No, but, see, they're just to get into those. Again, I think a lot of those examples you -- you do have access under other statutes. You're talking about mortgage rules and all that. Aren't those all -­

Deepak Gupta: No, no. Not to this kind of information. The -- the information that Mr. Hurlbert is gathering, tax assessment information, is essential to -- to mortgage origination and credit reporting. The people who hire him are large data companies, and the -­ the data industry brief explains the uses of this information. That -- that information is essential to these activities. And Virginia, virtually alone among the States, is -- is erecting this barrier to access that market and reserving the right to access that market to only people who live in the State. And -- and -- you know, this would be no different if it were just talking about the archives that -- that include all the information that the -­ yes, it's true that Virginia has exempted of the title itself, but I don't see that the logic of their position allows them to make that distinction. I mean, that's Alderson Reporting Company Official just a feature of their -- of their statute.

Justice Sotomayor: Could I -- I'm still trying to tease out what your claim is. Let's suppose Virginia passes a statute that says, We'll let nonresidents have access, but they have to pay all the costs. Nonresidents don't. Would that satisfy you as valid?

Deepak Gupta: I think that would be a closer question, but I think that presents some problems as well. I mean, so, in your hypothetical, it's free to the citizens of the State, but they're just passing the cost on to out-of-Staters. And -- you know, this -- this Court, in cases like Toomer and Mullaney, have said that at least -- you know, where the State can show that the nonresidents pose some unique evil, that the -- the State is entitled to pass the costs on.

Justice Sotomayor: Why isn't it just -- you just being costs them more?

Deepak Gupta: Right.

Justice Sotomayor: That was Justice Ginsburg's point, which is every time you've put in a request, you're costing them more money.

Deepak Gupta: Right. But -- but that would be discriminating against non as -- noncitizens solely Alderson Reporting Company Official because they're noncitizens. So, if there's some particular -­

Justice Sotomayor: Well, why? You were costing them more.

Deepak Gupta: Right. Well, that's -- that's precisely the rationale that -- that in Justice Kennedy's opinion for the Court in Barnard v. Thorstenn, this Court rejected. This -- the Virgin Islands wanted to say if we open up our bar to people from all over the country, it's going to increase the administrative resources. And this Court said, no, that's not a good enough reason. That's just discriminating on the basis of citizenship. But if, for example, the State could show that there was -- you know, there were shipping costs that were uniquely posed by nonresidents and they wanted to assess a $5 shipping fee for all nonresidents, that might be permissible. And, if there are no further questions, I'd like to reserve my time.

Chief Justice Roberts: Thank you, counsel. General Getchell? ORAL ARGUMENT OF EARLE DUNCAN GETCHELL, JR., ON BEHALF OF THE RESPONDENTS

Earle Duncan Getchell Jr.: Mr. Chief Justice, and may it Alderson Reporting Company Official please the Court: The -­

Justice Sotomayor: I'm not sure how you save administrative costs under this statute. They could go to any Virginia resident, it's not illegal, and probably will, it'll cost them something more, but not you, and get the very same information. So how do you justify this discrimination? Because it's so easily -- the administrative cost is going to be imposed anyway.

Earle Duncan Getchell Jr.: I would -- would suggest that the purpose of the statute, which is political, not commercial, left the State with the position that it was going to subsidize with tax dollars this function because we can't recover our overhead; we can over -­ only recover the actual cost.

Justice Sotomayor: So you want to give more businesses to Virginia citizens who will now charge out-of-State residents money to process their FOIA requests?

Earle Duncan Getchell Jr.: No, Your Honor. I don't think anybody was thinking about businesses of any sort. I think they were saying that we have a political hygiene statute. They were very much the fad. It happened in -- in my lifetime, too. I remember when 30 Alderson Reporting Company Official they were adopted. Nobody thought they were commercial in nature. And I do want to -- want to repel the notion that there is even substantial discrimination in this case because Mr. Hurlbert, in his admission that this is an as-applied challenge, has a difficulty with substantial equality of access, because it turns out that Mr. Hurlbert, in his reply brief, when he teed up the 1786 statute, which does give access -- did give access, he focused his argument on that statute. And if you run that statute, you will find that between 1830 -- 1813 and 1840, that you did not have general access. They went back to having to show a particular interest. But that -- from 1840, '41 until today, through the codes of 1819 and -- and up until the present code, Section 17.1208, he has the right of access to tax assessment records.

Chief Justice Roberts: So the -- if I understood your answer to Justice Sotomayor, the only reason you don't let out-of-Staters get these records is because of the added overhead costs?

Earle Duncan Getchell Jr.: No, Your Honor. It's just not part of the interests the State was trying to serve. The State -­

Chief Justice Roberts: Well, I know. Alderson Reporting Company Official But -- but -- so why don't you do it anyways? Just -- just as I asked your friend, it doesn't seem like that big a deal. It doesn't seem like that big a deal for you either. If you can recoup overhead costs from people who request -- and I'd assume you would be able to -- why don't other people -- people from West Virginia may have interest in how Virginia government operates, too. And -- and, again, if -- what cost is there to you, other than overhead? You don't want to keep how Virginia government operates quiet from outsiders when you let in -- its citizens get the access, do you?

Earle Duncan Getchell Jr.: The -- we are here to defend the decisions of the two lower courts that apply existing doctrine. And, under existing doctrine, only if we discover that this is a fundamental right, do I have to justify -­

Chief Justice Roberts: Well, that's under the Privileges -- the Privileges and Immunities argument.

Earle Duncan Getchell Jr.: That's correct.

Chief Justice Roberts: Okay. But what about the Dormant Commerce Clause?

Earle Duncan Getchell Jr.: Under the Dormant Commerce Clause, we would first have to have a regulation of Alderson Reporting Company Official commerce that's discriminatory. And I would say that a -­ that this is a governmental function. I would say that -­

Chief Justice Roberts: No, I know -- I understand your argument. I'm just asking you why bother? I mean, what -- what's the -- and that's certainly pertinent to some of the Commerce Clause analysis. And I haven't heard anything, other than the overhead costs. And I think you can recoup that from the requesters.

Earle Duncan Getchell Jr.: I cannot, Your Honor.

Chief Justice Roberts: Why not?

Earle Duncan Getchell Jr.: Mr. Chief Justice, the statute says I cannot recoup the cost of maintaining and generating the database, which is, by definition, overhead. I cannot -­

Chief Justice Roberts: Well, you've got to maintain and generate the database, anyway, for Virginia citizens who are going to ask for it. This is not an added cost. It's an added cost if you have to hire an additional person to handle -- as far as I can tell, just these two people.

Earle Duncan Getchell Jr.: It's an added burden, too. It's not all -­

Justice Scalia: But the Virginia citizens Alderson Reporting Company Official pay for that database, right?

Earle Duncan Getchell Jr.: They do. This is a taxpayer -­

Justice Scalia: And the out-of-Staters don't pay for the database.

Earle Duncan Getchell Jr.: This is a taxpayer-subsidized system.

Justice Scalia: And, besides, do -- do you -- is it the law that -- that the State of Virginia cannot do anything that's pointless? Only -- only the Federal Government can do stuff that's pointless? (Laughter.)

Earle Duncan Getchell Jr.: The -- there is a burden -- there is a non-financial burden as well because, as one who is subject to FOIA requests, we have a finite number of officials and employees who have to address these things. And that -­

Justice Sotomayor: You keep making that argument. But you don't stop residents for asking for the information from someone else. I mean, that's one of the points of your law, which is they can hire a Virginia resident to get it for them. Most of the big people are doing that already. So you're not saving any money if they can Alderson Reporting Company Official get the information simply by paying someone in Virginia to get it for them.

Earle Duncan Getchell Jr.: In -- in fact, the State of Virginia has made the policy decision to give this information to its citizens and not to inquire behind it to see whether or not somebody's doing it for an out-of-Stater. And not -­

Justice Scalia: Or even for commercial purposes. Don't you think if -- if those who created these government in the sunshine laws could have drafted them in such a way that inquiries for commercial purposes would not be allowed, but only those inquiries that are intended to look into the workings of State government and produce government in the sunshine, don't you think that they probably would have excluded commercial inquiries, if they could? But you can't tell which ones are commercial and which aren't.

Earle Duncan Getchell Jr.: And we don't -- and we don't try. We have a policy decision that we want to have a very simple system that allows our citizens to make inquiries without a demonstrated need or cause because we want there to be sunshine.

Chief Justice Roberts: It's no more complicated a system if you let out-of-Staters have Alderson Reporting Company Official access, too. You say we want a simple system. It's going to be the same system, whether you win or lose.

Earle Duncan Getchell Jr.: The thing that is of -- of great concern -- why do we care, why do we bother -- is the principle that when a government is providing a taxpayer-subsidized service of recent origin to its citizens, that it does not have to explain its choice, either under the Privileges and Immunities Clause or under the Dormant Commerce Clause. It is very important that we not find ourselves with lawsuits that say, "services." Voluntary services are, in fact, things that, now, have to be justified under those two provisions of the Constitution.

Justice Breyer: Well, that -- that's where he comes in with his argument because I -- I agree, you can -- you don't have -- let's say the most fabulous reason for doing this, but you have a reason. (Laughter.)

Justice Breyer: And so the question is, does it have to be better than that? And -- and they are saying yes. And, as I heard it, this -- what I would characterize as a strong argument -- this sort of, first of all, strikes me as a stronger argument, is that, look, if we go back into history, out-of-State Alderson Reporting Company Official real estate people could always get information about property -- let's say they had a client who wanted to buy it. Now, you've protected that. But, in today's world, it's important that we get statistics about this, too, because our economy is national. If we understand how States are taxing their real estate, we will know to what extent they increase the value, to what extent they increase the rate, to what extent they really get the money they are supposed to, to what extent they might get money or not get money in the future. And all of those things are nationally important, so that people can put them together and make -- better than we have done in the past -­ predictions about what is likely to happen to States and, hence, the national economy. All right. That's -- that's the kind of argument he's making. And he says, so, therefore, there is a national interest in the flow of this information. And that means you have to have a better than "uh-huh" kind of rationale. That's -- that's what he's saying, I think.

Earle Duncan Getchell Jr.: But it's very difficult for Mr. Hurlbert to make that fairly expansive argument because it turns out -­

Justice Breyer: Well, to be fair, I -- I Alderson Reporting Company Official was sort of expanding it. (Laughter.)

Earle Duncan Getchell Jr.: But, in point of fact, because he is entitled to the tax assessment data in the clerk's office, in the case of Henrico County, where he went, you go in the same building and -- if you're Mr. Hurlbert, you turn in one direction, you go to the clerk's office. And, if somebody in Virginia and wants to -­ for whatever reason, get it from the tax assessor's book, instead of from the clerk's book, you turn in the other direction.

Justice Kagan: But you don't deny that, in general, this does affect out-of-State data collectors, people who are engaged in the kind of business that Justice Breyer was talking about, is that right?

Earle Duncan Getchell Jr.: I have no idea in this record because we were on summary judgment -- cross motions for summary judgment, and the district court and the court of appeals, both in our judgment, correctly ruled that there's a two -- two-step inquiry. And the first step is whether or not there is a fundamental right. And in the absence of a -­

Justice Sotomayor: It's only in his 38 Alderson Reporting Company Official Privileges and Immunities Clause claim. MR. GETCHELL: Well -­

Justice Sotomayor: He claims that the dormant Commerce Clause has been effected because he reads this statute as saying only Virginia recording companies have access; out-of-State can't. And it's a fair reading of the statute. It only permits Virginia residents, which include commercial and noncommercial, to access the information. So assume, hypothetically, that the statute reads "only Virginia commercial businesses have access to this information" -­

Earle Duncan Getchell Jr.: If -- if, in fact, you want to rewrite the statute to -- subject to -- it to attack, obviously, that would then raise questions about a nongovernmental protectionist intent, but that's not the way this statute was written. It's not how it was crafted. It -- it has nothing to do with commerce.

Justice Sotomayor: Well, that's the question I'm -- I'm raising the best argument for your adversary, okay?

Earle Duncan Getchell Jr.: Right.

Justice Sotomayor: Because we could call it a direct -- he calls it direct discrimination because commercial businesses are being permitted in Virginia, Alderson Reporting Company Official but not noncommercial. You say it's indirect. How do we draw the line between direct and indirect, when the bottom-line consequence is the same?

Earle Duncan Getchell Jr.: I would -- I would have about three answers to that. The first -- the first one is that we don't trigger the dormant Commerce Clause analysis, unless we are exercising the police power of a State to regulate commerce. And that means -- it does mean that not every statute a State passes triggers an inquiry, even if it has an indirect effect on commerce. Whereas, here, we have a statute that has a solely political intent, the fact that -- that now that the amici want to tell us about this great burgeoning enterprise, they -- they want the Court to take that into account.

Justice Kennedy: Are you -- are you telling us that there is simply no commercial consequences to this statute at all, that Virginians find this to be of no commercial value, in any instance?

Earle Duncan Getchell Jr.: I am totally agnostic on this record because we don't have any data on that.

Justice Kennedy: Well, you were the one with summary judgment. Now, maybe -- maybe they didn't come forward with the information, but we interpret summary judgment in favor of -- of the losing party. Alderson Reporting Company Official And you're -- so you say you are totally agnostic. I am concerned that you are preventing them, by the summary judgment, from showing that there -- even with Virginians, there is a commercial value frequently to this information.

Earle Duncan Getchell Jr.: All right.

Justice Kennedy: It's not just political.

Earle Duncan Getchell Jr.: On this -- on this record -­ on this record, the position that was accepted by the two courts below, entirely in accordance with this Court's existing doctrine, was the first inquiry under Privileges and Immunities, was whether there was a fundamental right. If there -- if there is not, then we make no further inquiry.

Justice Kennedy: Let's talk about -- let's talk about the Commerce Clause. You are saying you are agnostic. You have no idea whether or not there might be some commercial value to this information. I would think, as an officer of the State of Virginia or as a matter of judicial notice, we could -- we could take notice that there is.

Earle Duncan Getchell Jr.: I'm saying that, under this record, that never came up, nor should it have come up, because what the court said on dormant Commerce Clause, both of the courts below, was this is not a regulation Alderson Reporting Company Official of commerce, it is a governmental action --

Justice Ginsburg: But it has -- it has -­

Justice Scalia: You are saying that it's no more necessary for you to show that there's no commercial value to allowing out-of-Staters to do this than it is necessary for you to show that there is no commercial value to your not allowing out-of-Staters to hunt deer in Virginia.

Earle Duncan Getchell Jr.: I believe -­

Justice Scalia: You say that it's up to Virginia -­

Earle Duncan Getchell Jr.: Correct, Your Honor.

Justice Scalia: -- whether -- whether out-of-Staters can hunt for Virginia game.

Earle Duncan Getchell Jr.: Correct.

Justice Scalia: And it's up to Virginia whether out-of-Staters can have access to the State's records, that they have no interest in, personally, under -- under this law. It seems, to me, perfectly logical.

Earle Duncan Getchell Jr.: But, remember, they do -­ they do have access to this information, both Hurlbert and McBurney.

Justice Kennedy: Of course, that assumes the question as to whether or not there is a general Alderson Reporting Company Official commercial interest in these -- in these -- in these documents. And you say, oh, you are agnostic. At least that means you are open to the possibility that there might be a commercial interest. (Laughter.)

Earle Duncan Getchell Jr.: Well, here's the problem in this case is because I think that we are not at first-tier analysis, because there is no regulation of commerce that is discriminatory -­

Justice Scalia: I didn't understand -- if that's your argument on it, I reject it as Justice Kennedy does. I -- I didn't understand you to be arguing that there is no commercial value.

Earle Duncan Getchell Jr.: I'm trying to explain why it doesn't matter.

Justice Scalia: Yes, that's what I thought. (Laughter.)

Earle Duncan Getchell Jr.: It doesn't -- it doesn't matter because if -- if, on the threshold inquiry, we don't have a discriminatory regulation of commerce, but just an ordinary governmental function, then only Pike-Church analysis could possibly -­

Justice Scalia: You -- you can't say discriminatory regulation. What about a tax? I mean, you can't tax discriminatorily, and I wouldn't call Alderson Reporting Company Official taxation, in and of itself, a regulation of commerce, would you?

Earle Duncan Getchell Jr.: The -- the fact of the matter is that it has been -- taxes have been found to be both violations of privileges and immunities and dormant Commerce Clause, where there were -- there was unequal taxation of commerce.

Justice Scalia: Well, even though it's -­ even though it's not a regulation of commerce?

Earle Duncan Getchell Jr.: Okay. Well, I -­

Justice Scalia: Okay. I mean, I guess that's your argument, then.

Earle Duncan Getchell Jr.: I apologize I chose a word that is not as apt as it should have been, but a regulation or taxation centering around commerce intended to affect and actually affecting commerce, it just -- this just isn't that kind of activity.

Justice Kagan: Well, General, can I-- just indulge me with a hypothetical. Suppose that the background for these statutes was different. The statutes were the same, but, in addition to talking about people's right to know about how their government works, the people spend a lot of time also talking about the economic benefits of a free flow of information in our country. Would that -- if that were true -- and I Alderson Reporting Company Official want to put myself on record as not remembering when these statutes were passed -- you know. (Laughter. )

Justice Kagan: But, if that were true, would this case be different? Or would you still be up here saying the same thing?

Earle Duncan Getchell Jr.: If -- if I had -- if I had a statute which, on its face, dealt with -- with commerce -­

Justice Kagan: The statute does exactly the same thing. I'm just suggesting that there might be two interests behind the statute. One is about knowing the way your government operates, and the other is about free flows of information in our economy. And, if both of those things had gone into the mix to create statutes of this kind, would you be up here saying the same thing or not?

Earle Duncan Getchell Jr.: I would be saying something at least slightly different, if I had different facts that I had to deal with, but I think, in principle, I would be arguing the power of the State to pass this kind of act without having to submit to the dormant Commerce Clause, at least first-tier dormant Commerce Clause analysis.

Justice Ginsburg: What else -- what else Alderson Reporting Company Official can Virginia do besides -- I don't know if there are elks in Virginia, but besides -- to reserve for its own -- for its own people? You say, this is -- good government in Virginia is for Virginians. Big game hunting, scarce resource can be reserved for in-State people. What else can Virginia do?

Earle Duncan Getchell Jr.: Well, Virginia can -- can do things including have in-State tuition. It can have -­ it can subsidize its own businesses, either by training programs or even by other direct subsidy from public FISK. It limits welfare payments to residents of the Commonwealth. When the Commonwealth is just acting as a government and not as a regulator or taxer of interstate commerce, it has the status of a coequal sovereign that, in its own sphere, is allowed to do its own policy choices.

Justice Kagan: I think the thing, General, that I was trying to get at, it seems to me you have a very good case that these statutes were -- were meant for a different purpose. But, in fact, it seems as though your friends there have a good case that these statutes have been taken over, to a large extent, across the country by economic enterprises doing economic Alderson Reporting Company Official things. And, at that point in time, Virginia's -­ and -- you know, you are only one of two States -­ Virginia's maintenance of this kind of -- no, it's Virginians -- you know, Virginia information for Virginians, looks very different from what it might have looked like when the statute was originally passed.

Earle Duncan Getchell Jr.: If -- if we were going to say, if you were going to say that -- that this is an inquiry that needs to be made under the Commerce Clause, this would be a particularly poor vehicle for doing it because the Fourth Circuit held that the Pike analysis of the district court was not appealed, and, therefore, this case could not be sent back on remand to develop a burden analysis of a record -­

Justice Kennedy: But Pike is not relevant here. Pike involves -- the Southern Pacific v. Arizona the -- where there were -- where there were melons -­ where there were melons, and Arizona wanted to make sure that you had labels and packing of the melons in Arizona. That was -- that was discriminatory against -­ against interstate -- against interstate commerce. That's not -- that's not dormant Commerce Clause, but that is discrimination, and there is discrimination here. 47 Alderson Reporting Company Official

Earle Duncan Getchell Jr.: Well, there's -- there's discrimination, only in the sense that we discriminate against people who we don't let vote because they don't live in the Commonwealth as well. I mean, we -- this statute has a function. It's a legitimate function and -­

Justice Kennedy: You -- you could say the same thing, we don't discriminate against Californians who want to come and pack their melons in Arizona.

Earle Duncan Getchell Jr.: Well, I would say that -­ that whether or not somebody can deal with an item in commerce is -- is -- raises Commerce Clause questions. And just, like in Reno v. Condon, where the State of South Carolina was choosing to take its records and sell them into the stream of commerce, there, the Court held that -- that they thereby became a thing in commerce. The records of the tax assessor of the County of Henrico, which are available through the clerk's office to Mr. Hurlbert, are not things or persons in commerce, nor are they -­

Justice Kennedy: It -- it would surprise me if an out-of-State investor, who was thinking of putting a large plant in Virginia, had absolutely no interest in Virginia's tax policies.

Earle Duncan Getchell Jr.: But they are available. They Alderson Reporting Company Official are publicly available. They are not just not available through this adjunct service. All -- all FOIA is, is a device where you don't have to go and look. There has always been public access for these -- these records.

Justice Breyer: So -- so suppose -- I mean, I think they have an argument, saying, of course, this information would be useful for gathering national statistics and helping the national economy. I think that's true. On the other hand, you say, well, but, look, there must be something left that the States can reserve to their own citizens, there must be something. They can't protect their own commerce; that's clear. They can't discriminate against people who want to come here and live here. That's clear. They can't do this and that and the other thing, but, gee, there must be something. I mean, can't they reserve at least their -- their beaches for their own citizens? No. Parking near their beaches? Well, maybe. And -- and maybe deer. And, if not this, what? That's the end. Okay? So that's, basically, what you are saying. This is just an interest in trying to find out how State institutions work, and the voters have the main interest there, and this is other -- so you say the other one is Alderson Reporting Company Official attenuated, but not non-existent. He says the other is important, though he recognizes States should be able to do something. So if you were me, how would you decide? How would you choose? (Laughter.)

Justice Breyer: What is the standard, because you know the -- the Privileges and Immunities Clause is -- is considerably opaque, and there are very few cases on it. And so what -- how would you tell me to -- to resolve that -- that tension because there is a tension.

Earle Duncan Getchell Jr.: I -- I think there that -­ that the important policy issue in this case for us is precisely as you articulated. There -- there is residual sovereign power in the State to act, and we have to violate the Constitution, clearly, before we lose that authority. And, under existing privileges and immunities doctrine, the privileges and immunities are -- are few; they are -- they have been enumerated in the courts, they are similar in character, having to do with commerce, not governmental action. So I would say you would not extend privileges and immunities.

Justice Scalia: We are talking about Alderson Reporting Company Official State-owned documents, aren't we?

Earle Duncan Getchell Jr.: Yes, Your Honor.

Justice Scalia: There is not much that's as close to the sovereignty of the State as the possession and right to exclude people from its own records and its own documents, right?

Earle Duncan Getchell Jr.: I agree, Your -­ Justice Scalia.

Justice Scalia: So the -- the issue is can the State allow its own citizens, for purposes of seeing that the government is -- is being run on the up-and-up, have access to those documents, without letting the whole world?

Earle Duncan Getchell Jr.: Yes, Your Honor, that is our position.

Justice Sotomayor: So why doesn't the dormant Commerce Clause affect the hypothetical I laid out? Because, directly, this permits Virginia commercial businesses to get something that out-of-Staters can't. The State is putting this instrument into commerce. You say, I don't know that. But make the assumption that we think the record's clear enough on that point. I know you want to fight me on that, but it's hard -- it's a fight with no legs because you have Alderson Reporting Company Official to know that commercial enterprises in Virginia seek these records.

Earle Duncan Getchell Jr.: I am -- I am arguing that, of course, I think we say in our brief that -- that they can be put into commerce. They are put into commerce, but we don't put them into commerce. And we have -- in the architecture of our bill -- our act has nothing to do with commerce. And if a State can't deal with -­

Justice Sotomayor: Tell us, under our jurisprudence -- the dormant Common Commerce jurisprudence -- and I have some colleagues who don't -- who don't believe it should exist. Take that argument out. Why is this not a dormant Commerce Clause case?

Earle Duncan Getchell Jr.: Because it is not an exercise of the State police power to regulate commerce. The documents in the -- in the tax assessor's office of the County of Henrico are not things or persons in commerce, nor are they channels or instrumentalities of commerce. They are just the records of the sovereign, which we will allow our citizens to obtain. Unless the Court has further questions, I think this argument has been developed from our standpoint.

Chief Justice Roberts: Thank you, General. Alderson Reporting Company Official Mr. Gupta, you have three minutes remaining. REBUTTAL ARGUMENT OF DEEPAK GUPTA ON BEHALF OF THE PETITIONERS

Deepak Gupta: Thank you. Just a few quick points: First, I just want to clear up, on the statute, I want to make it clear that this statute does allow the State to fully recoup its costs, including administrative costs, and the State hasn't said otherwise. And, secondly, the suggestion has been made -­

Justice Scalia: Excuse me. The -- I -- I think what he's saying is you don't have to pay the costs of developing and maintaining those records, which costs are paid by the citizens of Virginia, which gives them an additional interest in being able to get to those documents. You -- you don't claim that -- that you pay for the development and the maintenance of those records. You just pay for the incremental costs of giving it to you, right?

Deepak Gupta: That -- that's right, Justice Scalia -­

Justice Scalia: And Virginians pay for all the rest? Alderson Reporting Company Official

Deepak Gupta: That -- that's right, Justice Scalia, and that's true of other things, like roads and courthouses. And I think this gets to -- Justice Breyer asked for our test, to try to differentiate this from other services, and I'd like to try to provide one. I think, at least where you've got a function that is reserved to the State -- only the State can do it, only the State can run the archives -- it's necessary as a channel to -- to commerce. And in the -­ in the modern economy, this is as much part of the information infrastructure as transportation is, like courthouses, like archives, like roads. It would not stretch limited resources. It would not cost the State additional money, and it would not jeopardize important local traditions or institutions -­

Justice Ginsburg: Are you leaving out -­

Deepak Gupta: -- that I think you can feel comfortable -­

Justice Ginsburg: Are you leaving it -­ you -- you switched now to-- and you were led there, but you switched to the dormant Commerce Clause. What about your other client, McBurney? He doesn't have any dormant Commerce Clause claim.

Deepak Gupta: Right. And I -- I think the Alderson Reporting Company Official test that I just laid out would work for both clauses. It's a limiting principle on the justification side. But -- but that's right, Mr. McBurney does not have a dormant Commerce Clause claim. His claim is based on equal access to proceedings. He wanted to get recovery of child support that he was owed. So he is a creditor seeking to pursue a debt on equal terms with people in the State of Virginia, and the State set up a process. As one step along the way to court, you go to the agency, you ask the agency to enforce. The -- the agency has unique enforcement tools. It can suspend someone's driver's license, for example. It can -- it can intercept income tax refunds, and it can go to court on your behalf. And all he's asking for is the rules of the game. He wants to know what procedures apply to that process. And at least where a -- an agency has a process that directly affects a non-stater in the pocketbook, all we are saying is that equal access to the proceedings means equal access to the information governing those proceedings. And, finally, I would just like to close by saying that -- you know, what I don't think we heard on the justification side from the State was really any Alderson Reporting Company Official justification because the State can recoup its costs. And so they are not saying that this will cost them anything more, which was the only justification they pressed in -- in the courts below. And so they are left with the position that they can discriminate simply because they think they can. And, if you look at the Privileges and Immunities Clause, it sits right next to the Full Faith and Credit Clause, which indicates, if anything, that the framers thought that the movement of public records across State lines was important to interstate comity. They changed the Articles of Confederation version, which did not include public records; it only referred to judicial records. They added a mention of judicial records -- nonjudicial records and saw that that was important to -- to comity across State lines. But -- but their position is about the step before that. It's about whether you get the records in the first place. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:16 a.m., the case in the above-entitled matter was submitted.)