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.
Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.
Does Exemption 2 of the Freedom of Information Act protect from disclosure primarily internal documents of some public interest if they could be used to circumvent agency regulations?
In late 2003 and early 2004, Glen Milner submitted requests under the Freedom of Information Act (“FOIA”) to the Department of the Navy for information concerning safety procedures on Naval Magazine Indian Island (“NMII”). See Milner v. U.S. Dept. of the Navy, 2007 WL 3228049 at *1 (W.D. Wash. 2007). NMII is an island in the Puget Sound, used by the military for the storage and shipment of explosives and other weapons. See id. The island is within three miles of several towns, a state park, and various pleasure and work boaters who use the surrounding water. See Milner v. U.S. Dept. of the Navy, 575 F.3d 959, 972 (9th Cir. 2009).
The Navy conducts magazine management and safety operations according to the Ammunition and Explosive Ashore Safety Regulations for Handling, Storing, and Production Renovation and Shipping manual (“OP-5 manual”). See Milner, 575 F.3d at 961. The purpose of the OP-5 manual is to provide safety regulations for individuals working with hazardous materials, such as explosives. See id. The OP-5 manual also requires the Navy to develop certain technical information, including Explosive Safety Quantity Distance (“ESQD”) data. See id. at 962.
Milner requested all ESQD information for the ammunition depot on NMII, including ESQD maps and diagrams of the site and the safety procedures instituted based on ESQD data. See Milner, 2007 WL 3228049 at *1. ESQD is a measure of the effects of an explosion over varying distances away from the center of the blast. See id. The Navy uses this information to determine how far apart it must store types and quantities of explosives in case of accident or attack in order to avoid chain reactions. See Milner, 575 F.3d at 962.
The Navy identified approximately 1,000 relevant documents, and provided Milner with all but 81 of them. See Milner, 575 F.3d at 962. Milner sued under FOIA to force the Navy to provide the remaining 81 documents. See id. The commanding officer of NMII submitted an affidavit arguing that individuals could use the denied information to attack or interfere with NMII operations, and that the information was protected under Exemption 2 of FOIA. See id.; 5 U.S.C. § 552(b)(2).
Exemption 2 is one of nine exclusive exemptions to FOIA, and it explicitly allows an agency to refuse to disclose matters “related solely to the internal personnel rules and practices of an agency.” See Milner, 575 F.3d at 963; 5 U.S.C. § 552(b)(2). Some circuit courts have identified two types of information that meet Exemption 2: “Low 2” information, which is trivial in nature, and “High 2” information, which must be “predominately internal” and the disclosure of which “significantly risks circumvention of agency regulations or statutes.” See Department of Justice Guide to the Freedom of Information Act at 184–85.
The United States District Court for the Western District of Washington held for the Navy on the grounds that the requested material was “High 2” information. See Milner 2007 WL 3228049 at *24–25. The United States Court of Appeals for the Ninth Circuit affirmed, ruling that the ESQD information represented “primarily internal” policies that NMII staff needed to follow when dealing with explosives and procedures. See Milner, 575 F.3d at 969, 971–72. Furthermore, the court determined that disclosure would risk circumvention of agency regulation. See id. at 972.
The United States Supreme Court granted certiorari to determine whether the High 2 Exemption is an appropriate interpretation of Exemption 2 of the FOIA. See Milner v. Dept. of the Navy, 130 S. Ct. 3505 (2010).
The Supreme Court will determine whether Exemption 2 to the Freedom of Information Act (“FOIA”) covers all internal personnel rules and policies that risk allowing the circumvention of agency regulation if disclosed.
According to Glen Milner, Exemption 2 prevents access to routine internal personnel matters of no public interest. See Brief for Petitioner, Glen Milner at 16. Public Citizen, the American Civil Liberties Union, and others agree, asserting that Exemption 2 primarily exists to save agencies the trouble of maintaining records that the public could not have a reasonable interest in inspecting. See Brief of Amici Curiae Public Citizen, et al. in Support of Petitioner at 5. According to Public Citizen, documents covered by Exemption 2 narrowly include information relating to employee salary, parking, vacations, and lunch hours. See id. at 7. Public Citizen claims that limiting the information that remains confidential under Exemption 2 is necessary to encourage the full disclosure of information and promote government transparency. See id. at 18, 23. Public Citizen fears that, without a narrow interpretation of Exemption 2, agencies will refuse to disclose information based on political motivations rather than genuine national security concerns. See id. at 25.
In contrast, the Department of the Navy adopts a more expansive definition of Exemption 2. The Navy contends that Exemption 2 encompasses all “predominantly internal rules and practices governing agency personnel,” the disclosure of which would “significantly risk circumvention of agency functions.” See Brief for Respondent, Department of the Navy at 18. The Navy believes that the concern should not be whether the information requested is of a public interest, but whether an individual could use the information to subvert the agency’s interests. See id. at 18. The Navy argues that the disclosure of certain internal information relevant to the public interest would render that information useless for its intended agency purposes and make agencies less effective in carrying out important official functions. See id. at 18–19.
Milner believes the purpose of FOIA is to effectuate government transparency and facilitate an important check against agency corruption. See Brief for Petitioner at 13. Milner asserts that a broad reading of Exemption 2 would allow agencies to withhold information of substantial public interest. See id. at 29. The Reporters Committee for Freedom of the Press and nineteen other news media organizations fear that such a withholding would limit the ability of journalists to adequately scrutinize and monitor agency action. See Brief of Amici Curiae The Reporters Committee for Freedom of the Press, et al. in Support of Petitioners at 18. The Reporters Committee claims that journalists and other citizens have used their access to agency information in the past, and require continued access in the future to serve the public good. See id.
The Navy counters that Exemption 2 protects information Congress determined should be confidential. See Brief for Respondent at 27. The Navy argues that FOIA balances the agency’s interest in confidentiality with the public’s right to information. See id. at 27–28, 30. For example, the Navy believes that full disclosure of all sensitive information with some public interest could allow terrorists to plan attacks. See id. at 12. The Navy sees no reason to make terrorists’ jobs easier by disclosing a broad spectrum of sensitive information that could cause significant harm. See id. The Navy asserts that ESQD data provides the precise information terrorists would need to cause the maximum amount of damage to Indian island and the surrounding area. See id.
The Supreme Court will balance the public interest of freedom of information with the agency interest of keeping information secure, and, ultimately, refine FOIA’s boundaries.
This case presents the issue of whether Exemption 2 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(2), exempts the Navy from having to disclose its Explosive Safety Quantity Distance ("ESQD") data. See Brief for Respondent, Department of the Navy at 6–7. Exemption 2 of FOIA provides that FOIA does not apply to matters "related solely to the internal personnel rules and practices of an agency." See 5 U.S.C. § 552(b)(2). The Navy argues that the United States Court of Appeals for the Ninth Circuit was correct in endorsing the "High 2" interpretation of Exemption 2 first adopted by the United States Court of Appeals for the District of Columbia. See Brief for Petitioner, Glen Milner at 7–8; Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981). The High 2 Exemption provides that the government is exempt from disclosing materials that are "predominantly internal and [their] disclosure presents a circumvention of agency regulation." See Brief for Petitioner at 7–8. In contrast, Milner argues that this exception is too broad and does not fit with the goals of FOIA. See id. at 10.
Intent of FOIA
Petitioner Glen Milner argues that the High 2 Exemption goes against the intent of FOIA. See Brief for Petitioner at 13–14. Milner asserts that FOIA aims to promote full disclosure of agency action and procedures to the public unless those procedures fall within one of nine narrowly tailored exemptions. See id. at 13. He maintains that Congress created FOIA in response to an earlier disclosure statute that withheld too much information from the public. See id. at 14.
The Department of the Navy contends that Congress created FOIA as a means to balance the public's interest in disclosure against the government's interest in keeping certain information confidential. See Brief for Respondent at 49. The Navy maintains that the enumerated exemptions on FOIA are not just narrow exceptions to disclosure, but rather are a means of addressing the interest of the government in the balancing equation. See id. at 49–50. The Navy argues that FOIA did not intend to promote full disclosure, but rather the "fullest responsible disclosure." See id. at 50.
Language of FOIA’s Exemption 2
Milner further maintains that High 2 conflicts with the plain language of Exemption 2. See Brief for Petitioner at 14–15. Milner argues that Exemption 2 only authorizes withholding information that is "related solely to the internal personnel rules and practices of an agency" not the broader category of information that is "predominantly internal” and "would risk circumvention of agency regulation." See id. at 15. Milner contends that this expansion of Exemption 2 adds a new two-prong test that is not found within the statute. See id. at 17. Similarly, Milner maintains that if a statute explicitly lists one item of a group, but ignores others, it should be interpreted to apply only to those specifically enumerated. See id. at 24. Therefore, Milner argues that because Exemption 2 explicitly excluded only material "related solely to internal personnel rules and practices," it should not apply to materials that merely implicate those internal rules. See id.
In contrast, the Navy argues that the High 2 Exemption can be traced directly to the wording of the statute. See Brief for Respondent at 20. The Navy maintains that the correct interpretation of Exemption 2 is that it protects information "concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions." See id. The Navy contends that Exemption 2 includes not only the agency's internal procedures, but also information associated with those procedures. See id. at 21. The Navy maintains the Exemption protects information that agency personnel use to perform their duties. See id. at 21–22. The Navy argues that "internal" refers to practices that are normally not disclosed to the public, and that the '"solely" means that the information must be directly related to internal rules and practices. See id. at 21. Therefore, the Navy maintains that these two definitions show that Congress intended Exemption 2 to protect information that an agency maintains for its own use as long as it directly relates to the internal rules and practices of that agency. See id.
Legislative History of FOIA
Milner argues that Exemption 2 is unambiguous on its face so there is no need to analyze the legislative history. See Brief for Petitioner at 20. However, Milner maintains that even if the Supreme Court chooses to examine the legislative history, the record does not support a broad interpretation like that of the High 2 Exemption. See id. Milner states that the House and Senate Reports provide conflicting interpretations of Exemption 2. See id. at 22. He maintains that the Senate Report provides a narrower and more accurate interpretation of Exemption 2. See id. Milner argues that the Supreme Court adopted the Senate Report because its narrow interpretation of Exemption 2 was more in line with the spirit of disclosure behind FOIA. See id. at 23.
In contrast, the Navy contends that the legislative history indicates that Congress intended to prevent disclosure of documents when that would circumvent agency functions. See Brief for Respondent at 30. The Navy maintains that the House Report discussed Exemption 2 and repeatedly stated that it would apply when disclosing particular information would risk circumvention of an agency's function. See id. The Navy also argues that the Supreme Court, in an earlier case on Exemption 2, did not decide which report was more authoritative, and only found the Senate Report to be more applicable in that particular case because there was no risk of circumventing agency function. See id. at 38–39. The Navy maintains that in the present situation, where there is a risk of impeding the proper functioning of an agency, the Court should look to the House Report to determine the intent behind Exemption 2. See id.
Milner further argues that if Congress had wanted Exemption 2 to broadly include High 2, it would have explicitly modified it when it modified Exemption 7 in 1986. See Brief for Petitioner at 30. Milner explains that in 1986 Congress considered a bill amending both Exemptions 2 and 7 to resemble the High 2 Exemption. See id. at 33–34. Milner argues that because this bill did not pass, the High 2 Exemption does not conform to Congress's intended interpretation of Exemption 2. See id. at 34–35.
The Navy contends that Congress did not explicitly modify Exemption 2 to encompass High 2 because the courts had already adopted the High 2 Exemption. See Brief for Respondent at 42–43. The Navy argues that Congress amended Exemption 7 in light of how the D.C. Circuit Court of Appeals had previously interpreted Exemption 2, and chose not to overturn the court’s recognition of the High 2 Exemption. See id. The Navy maintains that this indicates Congress's approval of the High 2 Exemption. See id. at 44.
Disclosure of Explosive Safety Quantity Distance Data
Milner argues that even if the Court does recognize the High 2 Exemption, the exemption should be interpreted narrowly and preclude the disclosure of ESQD data. See Brief for Petitioner at 36. Milner contends that High 2 should only apply to documents "related solely to internal personnel rules and practices." See id. Milner argues that the ESQD data includes information about the area beyond Indian Island potentially affected by explosions, and so are of interest to the public and do not solely relate to internal rules or practices. See id. at 37.
The Navy maintains that ESQD data is only relevant to civilian personnel for emergency planning purposes. See Brief for Respondent at 47. The Navy argues that disclosing ESQD data would circumvent the agency's goal of safely storing ammunitions. See id. at 47–48. The Navy also argues that disclosing the data would declassify the location and amount of munitions on the island and consequently could create a safety risk. See id.
The Supreme Court will decide the extent to which agencies must disclose primarily internal information under the Freedom of Information Act. Milner argues that Exemption 2 of FOIA does not prevent access to information of public interest, such as the ESQD data for Indian Island. The Navy contends that Exemption 2 protects information that could be used to circumvent agency regulations, even if the information is of public interest. The Court’s decision will balance the public’s right to access to agency records with the government’s right to control potentially harmful information.
Edited by: Kate Hajjar
· ptleader.com, Patrick J. Sullivan: U.S. Supreme Court to Hear Case about Navy and Indian Island (July 7, 2010)
· Radio Television Digital News Association, Kathleen Kirby: Media Organizations Urge Supreme Court to Preserve Key Tool for Watchdog Journalism (Oct. 28, 2010)