Court surprisingly hostile to FOIA exemption

Thursday, December 2, 2010

WASHINGTON — The Supreme Court appeared surprisingly hostile yesterday to the government’s defense of an interpretation of the Freedom of Information Act that agencies have used to justify withholding a broad range of documents from public view.

The Court usually sides with the government in FOIA cases, but in Milner v. Department of the Navy, it appeared possible that the Court would rule in favor of a Washington state activist seeking information about a Navy munitions storage facility in Puget Sound.

At issue in the case is Exemption 2 of the FOIA, which allows government agencies to withhold documents “related solely to the internal personnel rules and practices of an agency.” But an appeals court ruling in 1981, amplified ever since by agencies and lower courts, has turned the exemption into a broader, catchall exemption. FOIA advocates say the broader interpretation is misused to justify turning down FOIA requests on the grounds that the requested information might allow someone to circumvent agency policies.

“In application, [the exemption] has been distorted to such a disturbing extent that agencies consistently cite Exemption 2 to withhold any document that could potentially fall into the ‘wrong hands,’” stated a brief filed in the case on behalf of news organizations.

Justices seemed annoyed most by the expansion of the exemption beyond its plain language. “It seems to me you're asking us to do your job,” Chief Justice John Roberts Jr. told Anthony Yang, assistant to the solicitor general. “You are telling us how sensitive these [documents] are and therefore it would harm the national interest if they have to be disclosed. If that’s true, you can classify them … instead of coming to us and saying you should torture the language in FOIA.”

Yang said classification would not be an adequate substitute for the exemption.

Justice Anthony Kennedy also seemed skeptical about the broad interpretation of the exemption, stating that if an agency promulgated rules about the placement of bombs, it is “hard for me to explain that it's just a personnel rule.”

The justices’ doubts about the government position was all the more notable because of the nature of the documents at issue. Glen Milner invoked FOIA in search of documents about the possibility of explosions at the Navy facility. The Navy invoked Exemption 2, and the 9th U.S. Circuit Court of Appeals upheld the Navy’s action.

Exemption 2 was meant to be “extremely narrow,” Milner's lawyer David Mann told the Court, not the “open-ended” interpretation the 9th Circuit and other circuits have given it. “Any time an agency feels it may be appropriate that it might not want to release something, it can rely on Exemption 2.”

Justice Samuel Alito Jr. was the only member of the Court to voice serious concern about national security. “The world has changed in a lot of ways,” he told Mann. “There is now I think much greater concern about the disclosure of information that has perhaps profound security implications.”

Yang, the government lawyer, urged the Court not 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.”

Roberts, in his critical questioning of Yang, even added a comment usually voiced by researchers who use FOIA. “It takes forever to get the documents,” he  said.

That prompted Yang to make an unusual concession. “We are not usually complying with the statute’s 20-day turnaround. That’s correct.”