During the 1960s and 1970s, the country underwent a quiet revolution in open government. In 1966, Congress passed the Freedom of Information Act (FOIA), and all 50 states -- those, that is, that didn't already have "sunshine laws" -- followed suit. Those laws are now a key part of politics, news-gathering, and business. They allow a requester to demand governmental records for any reason, and they require government to furnish copies without an excessive charge. FOIA requests are used to expose governmental wrongdoing, provide cheap discovery in litigation, fuel large-scale journalistic investigations, create multi-state research surveys, and obtain detailed data that can be mined, exploited, and sold.
Most states have opened their records to anyone who asks. However, Virginia and Tennessee extend the guarantee only to those within their borders. (Some other states have ambiguous laws providing access to every "citizen," which could mean state citizen or federal. Delaware limited access to in-staters until the Third Circuit struck that requirement down in 2006.) The challengers argue that the "citizen only" laws conflict with two provisions of the Constitution. One is the "privileges and immunities" clause of Article IV; the other is the so-called "dormant commerce clause," which courts have deduced from Congress's power to regulate commerce "among the several states."
Put another way, if state records are documents about government and accountability, they say, they are "privileges and immunities" and the state can't discriminate among American citizens in granting them; if they are simply a valuable product, the state can't hog them for its own people.
The challengers in McBurney come from both camps. Mark J. McBurney is a former Virginian who was awarded child support from his ex-wife under a Virginia divorce decree. When he moved to Australia, however, the state bungled its responsibility to collect his payments. By the time the error was discovered, McBurney had lost the chance to seek nine months' payments, now barred by the statute of limitations. He asked for all records related to his case, but was denied because he was no longer resident in the state.
Roger Hurlbert, meanwhile, owns a business in California that obtains local tax records for private clients. There are lots of reasons why out-of-state interests need these records -- particularly if they are thinking of locating businesses or real-estate developments in Virginia. Though tax records are freely available to residents, local officials told Hurlbert he couldn't have them. He could hire a local to request for him, but that would raise his costs. As a result, he no longer does business in Virginia.
McBurney and Hurlburt argue that this violates Article IV's guarantee that "[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Nobody knows exactly what this provision means, but since the nineteenth century it has been read to guarantee that states can't bar out-of-staters from exercising basic rights inside the state. Hurlbert also argues that the law discriminates against his business, and that it thus is a state-imposed burden on interstate commerce. Under the so-called "dormant" commerce clause, states can't discriminate against out of state business, or clog the general flow of commerce, without a good reason.