The new requirements of Exemption 2

The U.S. Supreme Court in Milner v. Department of Navy established a three-prong test for determining whether federal records are “related solely to the internal personnel rules and practices of an agency” as set forth in FOIA Exemption 2:

1) The information must be related to internal rules or practices. This includes documents related to the selection, placement and training of employees;

2) The information must “relate solely” to personnel rules or practices. The court said that qualifying records must be exclusively personnel records; and

3) The information must be “internal.” This means that the agency must keep the record itself for its own use. The Supreme Court has noted, however, that personnel records cannot be considered internal when there is a “genuine and significant public interest in disclosure.”