The Freedom of Information Act (FOIA), 5 U.S.C. § 552, allows citizens to access government documents unless one of nine numerated exemptions applies. Exemption 2 [5 U.S.C. § 552(b)(2)] exempts from disclosure records “related solely to the internal personnel rules and practices of an agency.” In this case, petitioner Glen Milner requested maps showing how far an explosion would travel from the U.S. Navy’s Magazine Indian Island into the surrounding public waters, property and community. The Navy refused to release the maps although it did disclose most of the requested documents to Milner. The district court granted summary judgment in favor of the Navy.
On appeal, the Ninth Circuit affirmed. More specifically, the court explained that there are two categories of information that may fall within Exemption 2’s ambit-“Low 2” and “High 2.” Low 2 materials include rules and practices regarding mundane employment matters such as parking facilities, lunch hours, and sick leave, which are not of “genuine and significant public interest” (See Dep’t of the Air Force v. Rose, 425 U.S. 352, 363). The High 2 exemption protects more sensitive government information. This category applies to “internal personnel rules and practices,” disclosure of which “may risk circumvention of agency regulation.” Only the High 2 category is at issue here. As to the latter, the Ninth Circuit adopted the standard enunciated in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc) and held that a personnel document is exempt as “High 2” if it is predominantly internal and its disclosure presents a risk of circumvention of agency regulation. It concluded that the documents requested in the case at hand are predominantly internal and their disclosure would present a serious risk of circumvention of the law as they “point out the best target for those bent on wreaking havoc.”
Milner filed a petition for certiorari, which the Supreme Court granted and the case came on for oral argument before the Court yesterday. The transcript of the oral argument is available here.
Counsel for the petitioner began by making the following points: “First, the plain language of Exemption 2 dictates an extremely narrow category of materials, those related solely to internal personnel policies and rules. Second, even if you look beyond the plain language and look to the legislative history, the legislative history is focused, and the additional legislative history from the House is focused, only on law enforcement or investigatory materials, items that were covered through the 1986 amendments to FOIA, making any additional judicial High 2 unnecessary. The third point: Because of FOIA’s purpose, if you find that the language, the plain language, is not clear or if you find that the legislative history isn’t sufficient, then the focus must be on an interpretation that supports disclosure, not secrecy. And finally, Congress in enacting FOIA conducted the balancing. It reserved for it, itself, the authority to add to or expand FOIA through Exemption 3. It did not leave agency discretion available for the agencies to decide what documents they can provide or not.”
Counsel for the respondent replied that the petitioner “has asked this Court to disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies and the courts since the D.C. Circuit’s en banc decision in Crooker.”
The Associated Press, which was among the 20 news media organizations that filed a brief urging the court to limit the government’s invocation of the personnel exemption, highlighted some interesting aspects of the oral argument (Mark Sherman, High court questions broad use of FOIA exemption): For example, Chief Justice John Roberts said the administration was asking the court “to torture the language in FOIA” to keep the documents from being made public. Roberts also noted the public’s frustration with FOIA, even when the government is willing to turn over material. “It takes forever to get the documents,” he said. Several other justices indicated that they also thought the government and several appeals courts that have dealt with FOIA lawsuits have interpreted the exception too broadly. Justices Samuel Alito and Stephen Breyer appeared most sympathetic to the government’s view.
More information on the case, including links to briefs, is available here.