Justices to resolve appellate court split over FOIA exemption

The U.S. Supreme Court has agreed to hear an appeal in a case over whether the Navy must release information related to military weapon caches near communities in Washington state under the Freedom of Information Act.

The case began in 2003 when Puget Sound resident Glen Scott Milner, a member of the Ground Zero Center for Nonviolent Action, an organization dedicated to raising community awareness of military explosive hazards, requested records from the Navy related to the locations and potential blast ranges of the weapons held at Washington’s Naval Magazine Indian Island.

The Navy released about a thousand pages responsive to Milner’s request but withheld 81 documents, claiming these records were exempt under a FOIA exemption that protects the disclosure of records "related solely to the internal personnel rules and practices of an agency.”

Milner filed suit to compel disclosure of the remaining documents but in 2007 a federal district court determined, without holding a trial, that the Navy, which argued that release of the records could be used to plan an attack or disrupt Navy operations on the island, had properly withheld the records.

Milner appealed that ruling and in August 2009 a three-judge panel for the U.S. Court of Appeals in San Francisco (9th Cir.) affirmed the lower court’s decision, 2-1, and categorized the records as “High [Exemption] 2”— an expanded interpretation of the personnel exemption that courts have used to withhold “sensitive government information” that, if disclosed, might “risk circumvention of agency regulation.”

The appellate court relied on this interpretation of the exemption, which is not codified in federal law, as the basis for its decision.

“[W]e hold that a personnel document is exempt as “High 2” if it is predominantly internal and its disclosure presents a risk of circumvention of agency regulation. Law enforcement materials… satisfy these criteria. However, other sorts of materials — such as Navy data used for internal planning and safety purposes — may also meet the standard for exemption under Exemption 2,” wrote Judge Richard C. Tallman in the majority opinion for the appellate panel.

The U.S. Supreme Court agreed on June 28 to hear the case and will likely seek to resolve the circuit split over the “High 2” exemption. At issue is whether the appellate panel erred in extending the risk of agency circumvention to virtually everyone, rather than specific regulated individuals or entities, as previous decisions have required.

“High 2, as the decision of the Ninth Circuit in this matter has interpreted it, means that anything that is not designed by the agency for public disclosure can be kept secret if the agency can come up with a creative reason explaining why a rule might be circumvented if data is released,” argued Milner in his petition asking the high court to hear the case.

Eight newspaper associations and the Society for Environmental Journalists argued in a friend-of-the-court brief to the appellate court that "[i]f Exemption 2 extends to any agency record that might be useful to lawbreakers, even when the agency’s personnel are not engaged in law enforcement, the ‘internal personnel’ restriction ceases to have any meaning. It is easy to imagine ridiculous applications, such as concealing all wasteful Pentagon spending because it might inspire anti-government riots."

Judge William A. Fletcher, who dissented from the appellate panel’s decision, agreed with open government advocates that “[t]he majority’s determination to expand Exemption 2 to protect information that the Navy has not seen fit to classify distorts Congress’s careful balance and defies the Supreme Court’s instruction that FOIA exemptions ‘must be narrowly construed’ and are ‘explicitly exclusive’."