Argument preview: How broad is the scope of Exemption 2 of the Freedom of Information Act?

Under the Freedom of Information Act (“FOIA”), the public may obtain records from any federal agency unless those records fall within one of nine numerated exceptions.  On Wednesday, the Court will hear argument in Milner v. Department of the Navy (No. 09-1163), the first of two cases this Term concerning the scope of particular FOIA exemptions.  (The second is Federal Communications Commission v. AT&T, Inc., which the Court will hear on January 19, 2011.)

In Milner, the Court will consider whether FOIA Exemption 2, which protects from disclosure matters “related solely to the internal personnel rules and practices of an agency,” 5 U.S.C. § 552(b)(2), shields from disclosure “predominantly internal” materials whose “disclosure may risk circumvention of agency regulation.”

Background

Petitioner Glen Scott Milner lives near Indian Island, a small island in the State of Washington that houses one of the three naval magazines in which the Navy maintains non-nuclear explosives. Milner is a member of the Ground Zero Center for Nonviolent Action, a community organization dedicated to raising awareness of the dangers of the Navy’s activities in the area.

Wanting to learn what areas fell within the magazine’s blast radius in case an accident occurred, in 2003 and 2004 Milner submitted two FOIA requests to the Navy.  He sought – among other things – Explosive Safety Quantity Distance (“ESQD”) information for the naval magazine at Indian Island (“NMII”).  ESQD arc maps show the maximum area over which an explosion at a particular location would reach, and Navy personnel use ESQD information to establish minimum separation distances for the explosives and ammunition stored at NMII.  Although the Navy has shared an ESQD arc map for NMII with local first responders to facilitate emergency preparedness, it evaluates external requests for ESQD information on a case-by-case basis and restricts distribution of both the ESQD information and the document on which that data is based, OP-5.

The Navy disclosed most of the documents that fell within Milner’s request, but it withheld the ESQD information on the ground that its disclosure could threaten the safety and security of the naval magazine and the surrounding community.  When Milner filed suit under FOIA to compel disclosure of the additional documents, the Navy countered with a motion for summary judgment, arguing (among other things) that the information was protected under FOIA Exemption 2.  The district court agreed.

On appeal, the Ninth Circuit affirmed.  The court began by explaining that FOIA reflects “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.”  Moreover, it continued, Exemption 2 encompasses two separate exemptions:  “Low 2” and “High 2.”   In Department of the Air Force v. Rose (1976), the Court made clear that Exemption 2 covers rules and practices about mundane employment matters like parking facilities and lunch hours that are not of “genuine and significant public interest” – the so-called “Low 2” exemption.   However, the Court in Rose explicitly left open the question whether Exemption 2 could also cover materials whose “disclosure may risk circumvention of agency regulation” – the “High 2” exemption, which is now at issue in this case.

The opinion of the en banc D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco & Firearms (1981) is generally regarded as the framework for the High 2 exemption.  In Milner’s case, the Ninth Circuit adopted the Crooker standard, holding that a personnel document could be withheld under the High 2 exemption “if it is predominantly internal and its disclosure presents a risk of circumvention of agency regulation.”  Because they were “predominantly internal” and their disclosure would “point out the best target for those bent on wreaking havoc,” thereby presenting “a serious risk of circumvention of the law,” the court concluded that ESQD arcs were indeed exempt from disclosure.

Milner filed a petition for certiorari, which the Court granted on June 28, 2010.

Merits Briefing

Milner’s brief on the merits asks the Court to hold that there is no High 2 exemption to FOIA; rather, he contends, Exemption 2 applies only to “routine internal employee relations matters that are of no public interest.”  But at a minimum, he continues, the Court should sharply limit the scope of the High 2 exemption.

Milner makes four arguments supporting the theory that the High 2 exemption, particularly as construed by the Ninth Circuit in this case, exceeds the scope of Exemption 2.  First, the High 2 exemption conflicts with Congress’s goal in creating FOIA, which was intended to “open agency action to the light of public scrutiny.”  Second, the High 2 exemption does not fit with the plain language of Exemption 2, as it includes personnel materials that are only “predominantly,” rather than “solely,” internal.  Third, there is no support in the legislative history for the High 2 exemption.  To the contrary, as the Court explained in Rose, the legislative history made clear that Exemption 2 was intended to have a narrower reach than its predecessor exemption in the Administrative Procedure Act. Fourth, the policy concerns that informed Crooker were resolved by Congress’s 1986 amendment to Exemption 7, which now shields law enforcement records or information whose disclosure “could reasonably be expected to risk circumvention of the law.”

The Navy’s brief on the merits makes four main arguments in response.  First, the Navy argues that Crooker’s understanding of Exemption 2, which the Ninth Circuit adopted in this case, correctly interprets the text in light of its statutory and drafting history.   In particular, the Navy emphasizes, Congress decided to expand Exemption 2’s text to cover all “personnel rules and practices,” rather than merely “employment” rules and practices.  And Exemption 2 applies not only to personnel rules and practices, but also to materials that “relate solely” to them.  Moreover, most of Exemption 2’s text came from its predecessor exemption in the APA, which had been broadly construed.  Second, the Navy argues that the House Report for FOIA supports Crooker’s interpretation of Exemption 2.  Third, while Milner sees Congress’s 1986 amendment to Exemption 7 as proof that Exemption 2 should be reserved for mundane, solely internal personnel materials, the Navy views that amendment as a ratification of Crooker’s rationale.  Fourth, the Navy argues that, as this case illustrates, Exemption 2 – as interpreted by Crooker – plays an important role in protecting against the “common-sense harm” that could flow from public disclosure of some information.  According to the NMII commander, who submitted a declaration in the district court, releasing the ESQD information would enable people – including those with “less facially benign motives” than Milner – to determine the location, type, and quantity of explosives on Indian Island.