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Milner v. Department of the Navy (09-1163)

in

Oral argument: Dec. 1, 2010

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 5, 2009)

FREEDOM OF INFORMATION ACT, HIGH 2 EXEMPTION, AGENCIES

Glen Milner filed a request with the Department of the Navy under the Freedom of Information Act, 5 U.S.C. § 552, to gain access to files describing the blast radius of Navy-managed munitions stored on Indian Island in Washington state. The Navy refused, claiming the requested documents were exempt from disclosure under Exemption 2 of the Freedom of Information Act, which exempts records that are "related solely to the internal personnel rules and practices of an agency." Some courts have interpreted Exemption 2 to cover two types of information: (i) "Low 2" information, which consists of relatively trivial internal matters and (ii) "High 2" information, which is considered more substantial and the disclosure of which would "risk circumvention of a legal requirement." The United States Court of Appeals for the Ninth Circuit held that the requested information was exempt from disclosure under the High 2 interpretation of Exemption 2. Milner argues that the High 2 Exemption is not supported by the plain text of the statute or its legislative history, and that the Navy must disclose the information. In contrast, the Navy argues that High 2 correctly expresses Congress's intentions in creating Exemption 2. This decision will determine the scope of agency disclosure in response to the public requests for information pursuant to the Freedom of Information Act.

Free Enterprise Fund v. Public Co. Oversight Bd. (08-861)

in

Oral argument: Dec. 7, 2009

Appealed from: United States Court of Appeals for the District of Columbia Circuit (Aug. 22, 2008)

AGENCIES, ADMINISTRATIVE LAW, SEPARATION OF POWER, APPOINTMENTS CLAUSE, SARBANES-OXLEY ACT OF 2002

In 2002, Congress passed the Sarbanes-Oxley Act in reaction to the perceived failures of the self-regulatory system for accounting procedures that led to the infamous Enron and WorldCom scandals. The Act established the Public Company Accounting Oversight Board to supervise the audit of public companies. Although the Board is under the authority of the Securities and Exchange Commission, its members are not subject to direct removal or appointment by the President and it retains the power to set and raise its own budget. In this case, the Supreme Court will determine whether the Act’s establishment of the Board is an unconstitutional violation of separation of power principles and whether the Board’s structure violates the Appointments Clause. Petitioners argue that the Act violates separation of powers by diminishing the President’s ability to control or supervise Board members. Respondents argue that the Act does not violate separation of powers because Congress can grant exclusive appointment and removal authority to the Heads of Departments. Petitioners additionally argue that the Board’s structure violates the Appointment Clause because Board members are Principal Officers and, even if they were to be construed as Inferior Officers, their appointment is still unconstitutional, because the SEC is not a “Department” and its Commissioners are not the SEC’s “Head,” as required by the Clause. In response, Respondents argue that Board members are inferior officers because they are controlled directly by the SEC, and that the SEC is in fact a “Department” over which the President can exercise broad control and the Commission is its “Head” because it exercises the SEC’s collective powers. The case will ultimately determine the permissibility of the scheme currently in place that regulates US financial markets.

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