                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2006

Lee v. Gov DE
Precedential or Non-Precedential: Precedential

Docket No. 05-3329




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                                       PRECEDENTIAL


 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 Case No: 05-3329

                 MATTHEW LEE


                           v.

  RUTH ANN MINNER, in her official capacity as
Governor of the State of Delaware; M. JANE BRADY,
     in her official capacity as Attorney General
               of the State of Delaware,


                                 Appellants


  On Appeal from the United States District Court
             For the District of Delaware
           (D.C. Civ. Action No. 03-1063)
 District Judge: The Honorable Joseph J. Farnan, Jr.


                Argued May 9, 2006


  BEFORE: BARRY and SMITH, Circuit Judges,
                and DITTER, District Judge*

              (Opinion Filed: August 16, 2006)


W. Michael Tupman (Argued)
Delaware Department of Justice
102 West Water Street
Third Floor
Dover, DE 19904
       Counsel for Appellant

David C. Vladeck (Argued)
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Suite 312
Washington, DC 20001
       Counsel for Appellee

Lucy A. Dalglish
The Reporters Committee for Freedom of the Press
1101 Wilson Boulevard
Suite 1100
Arlington, VA 22209-2211
       Counsel for Amicus Curiae-Appellee

                OPINION OF THE COURT

      *
         The Honorable J. William Ditter, Jr., Senior District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

                              2
SMITH, Circuit Judge.

       The question presented in this appeal is whether
Delaware’s Freedom of Information Act (“FOIA”), 29 Del.
Code Ann. § 10003, violates the Privileges and Immunities
Clause of the United States Constitution by restricting
noncitizens’ rights to access, inspect, and copy public
documents. We conclude that it does. Accordingly, we will
affirm the District Court’s orders granting summary judgment
in favor of Matthew Lee and enjoining the State of Delaware
from limiting FOIA benefits to its own citizens.

                               I.

        Plaintiff-Appellee Matthew Lee is a citizen of New York.
He serves as the Executive Director of Inner City
Press/Community on the Move, a community and consumer
organization based in New York City. He is also a lawyer and
author. Much of Lee’s published work focuses on alleged
predatory practices of banks and other financial service
companies and the regulation of these entities by state and
federal authorities. Lee regularly publishes articles on these
issues in print media and online sources. In addition to these
activities, Lee submits testimony and public comments on behalf
of Inner City Press/Community on the Move to banking and
other regulatory agencies on related topics.

       On January 12, 2003, Lee requested records from

                               3
Delaware’s Attorney General regarding Delaware’s decision to
join a nationwide settlement with Household International, Inc.,
resolving an investigation into Household’s deceptive lending
practices. The request was made pursuant to Delaware’s FOIA.
Ten days later, State Solicitor Malcolm Cobin sent Lee a letter
denying his request. In relevant part, the letter stated:

       You request records of this office relating to the
       recent settlement with Household International
       Inc. and “for actions by your office on
       Household’s continuing predatory lending and
       insurance in connection therewith.” Your request
       is hereby denied. Pursuant to 29 Del. C. § 10003,
       “All public records shall be open to inspection
       and copying by any citizen of the State during
       regular business hours . . .” Your address
       indicates that you are not a citizen and therefore
       would not be entitled to inspect and copy public
       records under FOIA.

App. at 167.1

       1
           In its entirety, § 10003 provides:

       (a) All public records shall be open to inspection
       and copying by any citizen of the State during
       regular business hours by the custodian of the
       records for the appropriate public body.
       Reasonable access to and reasonable facilities for

                                4
        On September 3, 2003, Lee again requested information
pursuant to § 10003 regarding the Household settlement,
including any records related to a potential conflict of interest.
State Solicitor Cobin denied Lee’s request, citing the reasons set
forth in his previous letter.

      On November 24, 2003, Lee filed a complaint in the
United States District Court for the District of Delaware against
Governor Ruth Ann Minner and Attorney General M. Jane




       copying of these records shall not be denied to
       any citizen. If the record is in active use or in
       storage and, therefore, not available at the time a
       citizen requests access, the custodian shall so
       inform the citizen and make an appointment for
       said citizen to examine such records as
       expediently as they may be made available. Any
       reasonable expense involved in the copying of
       such records shall be levied as a charge on the
       citizen requesting such copy.

       (b) It shall be the responsibility of the public
       body to establish rules and regulations regarding
       access to public records as well as fees charged
       for copying of such records.

29 Del. Code Ann. § 10003.

                                5
Brady,2 alleging that the citizenship requirement in Delaware’s
FOIA violates the Privileges and Immunities Clause of the
United States Constitution. Delaware filed an answer and, on
January 14, 2004, Lee moved for summary judgment. Delaware
objected, indicating that it would need to take discovery to
determine whether the citizenship requirement interfered with
Lee’s fundamental right to engage in his trade as a journalist.
The Court deferred consideration of Lee’s summary judgment
motion and set a discovery schedule. Lee and Cobin were the
only two witnesses deposed. After the close of discovery, Lee
renewed his motion for summary judgment and Delaware filed
a cross-motion for summary judgment.

       On May 13, 2004, the District Court issued an order
granting summary judgment in favor of Lee and denying
Delaware’s cross-motion. In its accompanying opinion, the
Court explained that Delaware’s citizen-only provision violated
Lee’s fundamental right to “practice his common calling as a
journalist and consumer activist on the same terms and
conditions” as Delaware citizens who share his profession and
to “engage in the political process with regard to matters of both
national political and economic importance.” App. at 18, 21.
The Court also considered Delaware’s argument that the
citizenship requirement is substantially related to the State’s
interest in “defin[ing] the political community and


       2
         Lee sued Governor Minner and Attorney General
Brady only in their official capacities. The District Court
subsequently dismissed the Governor as a defendant because she
had no particular enforcement authority under Delaware’s
FOIA. Lee does not challenge that ruling on appeal. For
purposes of this opinion, we will refer to the Defendant-
Appellant as “Delaware” or “the State.”

                                6
strengthen[ing] the bond between citizens and their government
officials.” Id. at 22 (citation omitted). Although the Court
acknowledged that the State’s asserted interest might be valid in
other contexts, it concluded that, in this case, Delaware had
failed to “demonstrate[] how allowing noncitizens access to the
same public information available to the State’s citizens impedes
or thwarts those interests.” Id. at 22. It further explained:

       If, as Defendants contend, one of the goals of the
       FOIA is to strengthen the bond between citizens
       and their government by ensuring transparency
       and accountability in government, then
       nonresidents are no more a threat to this goal than
       residents. Indeed, consumer advocates and
       journalists like [Lee] are particularly suited to
       advancing the goals of transparency and
       accountability, whether they are Delaware
       citizens or not, and it is difficult to understand
       how such external scrutiny might undermine the
       bond between citizens and their government.

Id. at 24. The Court also issued an order permanently enjoining
Delaware’s Attorney General “from refusing to honor or
respond to [FOIA] requests . . . on the basis of the requestor’s
residency or citizenship” and directing the Attorney General to
“process and evaluate FOIA requests from nonresidents or
noncitizens in the same manner in which FOIA requests from
citizens of Delaware are processed and evaluated.” Id. at 34-35.

       After the District Court entered the injunction, Delaware
sought a stay pending appeal. The District Court denied the
motion for a stay. Delaware filed this timely appeal,
challenging the Court’s order granting summary judgment in

                               7
favor of Lee and the order granting Lee’s request for injunctive
relief.

                                II.

       The District Court exercised jurisdiction over this matter
pursuant to 28 U.S.C. § 1331. Because the District Court
entered a final order, this Court has jurisdiction pursuant to 28
U.S.C. § 1291.

        Our review of a District Court’s order granting summary
judgment is plenary. Camiolo v. State Farm Fire & Cas. Co.,
334 F.3d 345, 354 (3d Cir. 2003). We apply the standard set
forth in Federal Rule of Civil Procedure 56(c), under which we
may affirm the District Court’s order if, when viewing the
evidence in the light most favorable to the nonmoving party,
there is “no genuine issue as to any material fact . . . and the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c).

                                III.

        Article IV, section 2 of the United States Constitution
provides that “[t]he Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”
U.S. Const. art. IV, § 2. The Privileges and Immunities Clause
was designed to “fuse into one Nation a collection of
independent sovereign States,” Toomer v. Witsell, 224 U.S. 385,
395 (1948), and its object was “to place the citizens of each
State upon the same footing . . . so far as the advantages
resulting from citizenship in those States are concerned,” Paul
v. Virginia, 75 U.S. 168, 180 (1868). As the Supreme Court
explained, “[t]he section, in effect, prevents a State from

                                 8
discriminating against citizens of other States in favor of its
own.” Hague v. CIO, 307 U.S. 496, 511 (1939).

        The Supreme Court has set forth a three-prong test to
determine whether a state action or policy violates the Privileges
and Immunities Clause. See Toomer, 334 U.S. at 396; A.L.
Blades & Sons, Inc. v. Yerusalim, 121 F.3d 865, 870 (3d Cir.
1997). Under that test, a court must: (1) determine whether the
policy at issue burdens a right protected by the Privileges and
Immunities Clause; (2) consider whether the state has a
“substantial reason” for the discriminatory practice; and (3)
evaluate whether the practice bears a substantial relationship to
the state’s objectives. See Toomer, 334 U.S. at 396; Supreme
Court of New Hampshire v. Piper, 470 U.S. 274, 284 (1985);
A.L. Blades, 121 F.3d at 870.

       We agree with the District Court that the citizens-only
provision of Delaware’s Freedom of Information Act burdens
noncitizens’ right to “engage in the political process with regard
to matters of national political and economic importance.”
Although in some cases the State’s asserted objective of
“defining its political community” might justify a discriminatory
practice, in this case, there is an insufficient nexus between the
State’s policy of excluding noncitizens from receiving FOIA
benefits and that objective. For that reason, we will affirm the
judgment of the District Court.




                               A.

      The first prong of the Supreme Court’s test requires us to
determine whether the right asserted by the plaintiff is protected

                                9
by the Privileges and Immunities Clause. The contours of the
Privileges and Immunities Clause, however, have not been
“precisely shaped by the process and wear of constant litigation
and judicial interpretation,” and the reach of the Clause is not
“well developed.” See Baldwin v. Fish & Game Comm’n of
Montana, 436 U.S. 371, 379-80 (1978). Consequently, in
deciding whether a given right is protected under Article IV,
section 2, we have limited guidance.

        Despite the relative paucity of judicial pronouncements
regarding the reach of the Privileges and Immunities Clause,
there are basic principles that we can distill from the existing
case law. On one hand, it is clear that a state need not apply all
its laws or extend all its services equally to citizens and
noncitizens. Id. at 383. The Clause does not prohibit, for
example, the use of citizenship as a basis for suffrage rights or
qualification for elective office. Id. (citations omitted). On the
other hand, it is equally clear that a state may not deprive
noncitizens of the ability to “engage in an essential activity or
exercise a basic right.” Id. at 387. Such rights and activities
include those that are “‘fundamental’ to the promotion of
interstate harmony,” “‘bear[] upon the vitality of the Nation as
a single entity,’” United Bldg. & Constr. Trades Council v.
Mayor & Council of Camden, 465 U.S. 208, 218 (1984)
(quoting Baldwin, 436 U.S. at 388), and are “important to the
‘maintenance of the Union.’” Piper, 470 U.S. at 281 (quoting
Baldwin, 436 U.S. at 388)). Along those lines, the Supreme
Court has held that the pursuit of a common calling, the
ownership or disposition of privately held property, and access
to the courts are protected under the Privileges and Immunities
Clause. Baldwin, 436 U.S. at 383 (citing Ward v. Maryland, 12
Wall. 418 (1871); Blake v. McClung, 172 U.S. 239 (1898);
Canadian Northern R. Co. v. Eggen, 252 U.S. 553 (1920)); but

                               10
cf. id. at 388 (rejecting challenge to Montana law which
imposed a higher fee for elk hunting licenses on nonresidents
than on residents and explaining that elk hunting is “a recreation
and a sport” and that “[e]quality in access to Montana elk is not
basic to the maintenance and well-being of the Union”).

                                1.

        In this case, Lee alleges that the citizens-only provision
of Delaware’s FOIA burdens two fundamental rights: (1) his
right to pursue his “common calling” as a journalist and (2) his
right to “engage in the political process with regard to matters
of political and economic importance.” See Appellee’s Br. at
14-15. The District Court concluded that both of these rights
were protected under the Privileges and Immunities Clause. On
appeal, the State concedes–as it must3–that the right to pursue


       3
         See United Bldg. & Constr. Trades Council v. Mayor
& Council of Camden, 465 U.S. 208, 219 (1984) (holding that
Privileges and Immunities Clause protected right of noncitizen
to engage in construction work and noting that “the pursuit of a
common calling is one of the most fundamental of those
privileges protected by the Clause”); see also Piper, 470 U.S.
274 (holding that New Hampshire policy which restricted
practice of law by out-of-state residents violated Privileges and
Immunities Clause); Toomer, 334 U.S. 385 (concluding that
South Carolina statute which imposed higher licensing fee on
nonresident shrimp fisherman was unconstitutional); Mullaney
v. Anderson, 342 U.S. 415 (1952) (holding that licensing fee for
nonresident commercial fishermen constituted discriminatory
tax in violation of Privileges and Immunities Clause); Ward v.
Maryland, 79 U.S. 418 (1871) (striking down Maryland state
licensing scheme that imposed higher financial burden on
noncitizens who sought to trade in goods manufactured outside

                               11
one’s “common calling” is one that is protected by the
Privileges and Immunities Clause. It argues, however, that (1)
Lee has failed to establish that his “common calling” is
journalism and (2) the citizens-only provision does not impose
a sufficiently substantial burden on Lee’s right to pursue his
journalistic activities to render its Freedom of Information Act
constitutionally infirm. Because we conclude that the second
right asserted by Lee–the right to “engage in the political
process with regard to matters of national political and economic
importance”–is protected under the Privileges and Immunities
Clause, we need not address these arguments.

                                2.

       In the proceeding below, the District Court concluded
that the “citizenship requirement impacts [Lee’s] ability to
engage in the political process with regard to matters of both
national political and economic importance.” App. at 20. It
explained: “As the ‘corporate home’ for thousands of
corporations in the United States, Delaware’s regulations have
nation-wide political and economic impact, and therefore, it
seems reasonable that noncitizens should have the same access
to public records as Delaware citizens.” Id. at 20-21. On
appeal, Delaware argues that the District Court erred in holding,
as a matter of law, that the right of noncitizens to access public
records is protected by the Privileges and Immunities Clause.
We disagree.


of Maryland); but cf. Salem Blue Collar Workers Ass’n v. City
of Salem, 33 F.3d 265, 270 (3d Cir. 1994), cert. denied, 513 U.S.
1152 (1995) (holding that direct public employment is not a
right protected by the Privileges and Immunities Clause).


                               12
        Although the most common types of challenges under the
Privileges and Immunities Clause involve “economic
discrimination,” the Supreme Court noted in Piper that it “has
never held that the Privileges and Immunities Clause protects
only economic interests.” Piper, 470 U.S. at 281 n.11 (1985)
(citing Doe v. Bolton, 410 U.S. 179 (1973) (concluding that a
Georgia statute which permitted only residents to secure
abortions violated the Clause)). In fact, in Piper, the Supreme
Court explained that the right to practice law was a protected
right not only because of the legal profession’s role in the
national economy, but also because of lawyers’ “noncommercial
role” in “rais[ing] unpopular federal claims” and
“champion[ing] unpopular causes.” Id. at 281.

        No state is an island–at least in the figurative sense–and
some events which take place in an individual state may be
relevant to and have an impact upon policies of not only the
national government but also of the states. Accordingly,
political advocacy regarding matters of national interest or
interests common between the states plays an important role in
furthering a “vital national economy” and “vindicat[ing]
individual and societal rights.” See Tolchin v. Supreme Court of
the State of New Jersey, 111 F.3d 1099, 1111 (3d Cir. 1997)
(citing Piper, 470 U.S. at 280-81).

       Effective advocacy and participation in the political
process, however, require access to information. In the words
of the District Court, access to records is “the hallmark of
effective participation in democracy.” App. at 20. The very
purpose of a freedom of information law “is to ensure an
informed citizenry, vital to the functioning of a democratic
society . . . .” See, e.g., John Doe Agency v. John Doe Corp.,
493 U.S. 146, 152 (1989) (construing the federal Freedom of

                               13
Information Act); see also 29 Del. Code Ann. § 10001
(acknowledging that “[i]t is vital in a democratic society that
public business be performed in an open and public manner . .
. .”). Because political advocacy is an “essential activity” which
“bear[s] upon the vitality of the Nation as a single entity,”
Baldwin, 436 U.S. at 387, 383, and because access to public
records is necessary to the ability to engage in that activity, we
conclude that access to public records is a right protected by the
Privileges and Immunities Clause.

        Noncitizens’ access to public records–and the political
advocacy enabled by such access–is undoubtedly burdened by
§ 10003. Delaware’s FOIA is facially discriminatory insofar as
it limits access to information to those individuals who are
citizens of the State. Moreover, the burden on noncitizens’
access to information–and, accordingly, on noncitizens’ ability
to engage in political advocacy regarding topics upon which that
information touches–is not merely incidental. See Tolchin, 111
F.3d at 1111-12 (noting that it is necessary to “distinguish
between incidental discrimination against nonresidents and
discrimination that imposes too heavy a burden on their
privileges”) (citations omitted). Because noncitizens are
precluded from obtaining any FOIA information, at any time,
for any reason, the burden is substantial.4


       4
          The State contends that the burden is insubstantial
insofar as a noncitizen can obtain records by engaging a citizen
to file a FOIA request on his or her behalf. We find this
argument unpersuasive. Although some noncitizens may have
contacts in Delaware who are willing to submit a request for
them, others will be forced to expend considerable effort and
money to obtain the assistance of a citizen. Moreover, a
requirement which necessitates reliance on the citizen of another

                               14
                                B.

       Because the citizens-only provision of Delaware’s FOIA
burdens a fundamental right under the Privileges and Immunities
Clause, it can only withstand constitutional scrutiny if Delaware
has a “substantial reason” for the discriminatory practice and if
that practice bears a substantial relationship to the State’s
objectives. Delaware’s purported reason for restricting access
to information under its FOIA is to “define the political
community and strengthen the bond between citizens and their
government.” Appellant’s Br. at 17. The public record law, the
State contends, is an “extension of the right to vote.” Id. at 18.
Because noncitizens are not entitled to vote, it argues, they
similarly are not entitled to access public information.

       Delaware relies on the Supreme Court’s decision in
Sugarman v. Dougall, 413 U.S. 634 (1973), to support its
contention that the State has an “interest in establishing its own
form of government, and in limiting participation in that
government to those who are within ‘the basic conception of a
political community.’” Id. at 642-43 (quoting Dunn v.
Blumstein, 405 U.S. 330, 334 (1972)). Indeed, the Court has
recognized that this interest is “substantial” and that a state has
“broad power to define its political community.” Id. at 643. In
Sugarman itself, however, the Court further explained that “in
seeking to achieve this substantial purpose . . . the means the
State employs must be precisely drawn in light of the
acknowledged purpose.” Id. The Court concluded that the New
York Civil Service law at issue in that case was unconstitutional



state is contrary to the Privileges and Immunities Clause’s
purpose of promoting interstate harmony.

                                15
because it excluded foreign nationals from employment and this
exclusion was “neither narrowly confined nor precise in its
application.” In this case, Delaware has stated a “substantial
reason” for the citizens-only limitation in its public records
law–i.e., defining its political community. As discussed below,
however, the citizens-only provision bears little–if
any–relationship to this goal.

                                C.

       Under the third prong of the test set forth in Toomer and
A.L. Blades, we must evaluate whether the State’s
discriminatory action bears a substantial relationship to its stated
objectives. In this case, Delaware’s FOIA discriminates
between citizens and noncitizens and its purported interest in
“defining its political community” is both recognized and
“substantial.” Nevertheless, the State has offered no reason why
permitting noncitizens to access public information would
diminish its ability to define its political community. There is
no evidence that allowing noncitizens to directly obtain
information will weaken the bond between the State of
Delaware and its citizens.5 Put simply, there is no nexus


       5
          We note that the first section of Delaware’s FOIA
statute provides that “[i]t is vital in a democratic society that
public business be performed in an open and public manner . .
. .” 29 Del. Code Ann. § 10001. As the District Court
explained, if the goal of Delaware’s public records act is to
ensure transparency and accountability, permitting noncitizens
to access public documents is more likely to advance the goals
of Delaware’s FOIA than to thwart them. Moreover, because
information is not a diminishing resource, there is no risk that
permitting noncitizens to access public information will impair

                                16
between the State’s purported objective and its practice of
prohibiting noncitizens from obtaining public records.
Accordingly, we conclude that the citizens-only provision of §
10003 violates the Privileges and Immunities Clause.

                                IV.

        Pursuant to Article IV, section 2, a state may not
discriminate against noncitizens with respect to any protected
right unless the state has a substantial reason for the
discriminatory policy that bears a substantial relationship to the
state’s objectives. Delaware’s public records law discriminates
on its face between citizens and noncitizens. Although the State
has a substantial interest in “defining its political community,”
the citizens-only provision of its public records law does not
bear a substantial relationship to that interest. Accordingly, we
conclude that the provision violates the Privileges and
Immunities Clause of Article IV. We therefore will affirm the
District Court’s orders granting summary judgment in favor of
Lee and enjoining Delaware from limiting FOIA benefits to
Delaware citizens.




a citizen’s ability to do so as well. Indeed, the only justification
we can see for imposing an absolute bar to noncitizens’ access
to information is that the very act of exclusion creates a sense of
identity among Delaware citizens. Such a justification is
contrary to principles of comity inherent in Article IV, section
2.
