Justices again rein in exemption to FOIA

Tuesday, March 8, 2011

WASHINGTON — March 2011 is turning out to be a very good month for advocates of maximum disclosure of government documents under the Freedom of Information Act.

Less than a week after an important victory limiting one of the law’s exemptions in FCC v. AT&T, the Court yesterday handed down an even more significant decision narrowing another exemption, in Milner v. Department of the Navy.

The 8-1 Milner decision upends 30 years of federal government practice invoking the exemption at issue to withhold a broad swath of material — well beyond documents relating to “internal personnel rules and practices” that the exemption was written to protect from disclosure.

Last year alone, according to the ruling, federal agencies invoked this Exemption 2 more than 72,000 times to withhold documents from the public.

“Today’s ruling ensures that Exemption 2 will not become a catch-all that allows the government to keep vast amounts of information from the public, contrary to FOIA’s goal of allowing the public to know what its government is doing,” said Adina Rosenbaum of Public Citizen.

“For the second time in a week, the Supreme Court has reinforced the public’s right to get valuable information held by the government through the Freedom of Information Act,” said Lucy A. Dalglish, Reporters Committee for Freedom of the Press executive director.

As with last week’s ruling, Milner involved interpretation of an everyday word. In FCC v. AT&T the word was “personal,” as in “personal privacy,” and the Court ruled that the term could not be stretched to protect the privacy of corporations.

In Milner, the word under the microscope was “personnel.” The Navy invoked Exemption 2 shielding personnel documents, in response to a request from Glen Milner, a Puget Sound resident. He had asked for documents concerning explosives stored at a nearby Navy base and how to deal with a possible mishap.

Justice Elena Kagan, writing for the majority, said the word “personnel” in common parlance is understood to mean human resources or employee relations — and that defines the category of documents the exemption was meant to shield. “No one staring at these charts of explosions and using ordinary language would describe them in this manner,” Kagan wrote. The ruling also embraced the notion that to promote disclosure, all FOIA exemptions should be interpreted narrowly.

In spite of the ruling, Kagan said she understood the Navy’s desire to protect the explosives data from disclosure. But she said the government has “other tools at hand” besides Exemption 2, including other exemptions protecting classified documents or information complied for law enforcement purposes. Those other justifications are available to the Navy when the case goes back to lower courts.

Yesterday’s ruling was a death knell for a broad interpretation of Exemption 2 that dates back to a 1981 en banc decision of the U.S. Circuit Court of Appeals for the District of Columbia called Crooker v. Bureau of Alcohol, Tobacco & Firearms. That ruling upheld the use of Exemption 2 to withhold documents used to train law enforcement agents in surveillance techniques. The appeals court ruled that the exemption could be read to shield documents whose disclosure would “significantly risk circumvention of agency regulations or statutes.” Justice Ruth Bader Ginsburg, then a judge on the D.C. Circuit, was one of the nine judges in the majority in the Crooker ruling, and she was in the majority that rejected it yesterday.

Justice Stephen Breyer was the lone dissenter in Milner, stating that in light of the longstanding reliance on the Crooker interpretation, “I would let sleeping legal dogs lie.”

The Crooker opinion spawned new terms for what the exemption covered: “High 2,” referring to documents that might encourage circumvention of statutes, and “Low 2” meaning material relating to routine personnel matters that fits the literal meaning of the exemption. Government agencies began invoking the High 2 exemption in ever-widening ways, including to protect documents for national security reasons.

“The government invoked High 2 under Crooker as if it were the law of the land for 29 years, especially after 9/11,” said Dan Metcalfe, former director of the Justice Department’s office of information and privacy, which gave guidance to federal agencies on interpreting FOIA. Metcalfe is now executive director of the Collaboration on Government Secrecy at American University Washington College of Law.

But now, High 2 is dead or, as Kagan put it in her opinion: “Low 2 is all of 2 and … High 2 is not 2 at all.”

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