Federal Judiciary

Opinion recap: Court interprets FOIA Exemption 2 narrowly

By Kathryn McCann - Guest

On Monday, the Court issued its decision in Milner v. Department of the Navy (No. 09-1163), holding that Exemption 2 of the Freedom of Information Act (FOIA) shields only those records relating to employee relations and human resources issues. The Court rejected the ?High 2? exemption created by the D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco & Firearms and adopted by three other courts of appeals, including the Ninth Circuit below.

Exemption 2 protects from disclosure material that is ?related solely to the internal personnel rules and practices of an agency.?  The federal government had urged the Court to adopt Crooker?s analysis, under which federal agencies could withhold not only records relating to employee relations and human resources (?Low 2?), but also those records whose disclosure could risk circumvention of the law (?High 2?).  Applying the ?High 2? exemption in this case, the Ninth Circuit had upheld the Navy?s refusal to supply petitioner Glen Milner with Explosive Safety Quantity Distance (ESQD) information for munitions held at Naval Magazine Indian Island, which is near Mr. Milner?s home.

In an opinion authored by Justice Kagan and joined by seven other Justices, the Court sharply rejected the federal government?s arguments for adopting the Crooker construction, explaining that High 2 contradicts both the clear text of Exemption 2 and Congress?s goals in enacting FOIA.  When ?personnel? is used as an adjective, the Court reasoned, it means ?human resources?; thus, the Court continued, ?the only way to arrive at High 2 is by taking a pen to the statute.?  The Court criticized the government?s ?text-light? interpretation of the statute and its reliance on ambiguous legislative history instead of the clear text.  Such a reading, the Court emphasized, not only was textually incorrect, but also flouted FOIA?s ?goal of broad disclosure? and the Court?s practice of construing FOIA exemptions narrowly.

The Court also rejected the argument made by Justice Breyer in his dissent ? that it should adopt the High 2 reading because lower courts have relied upon Crooker and followed it for thirty years.  First, the Court noted, this rationale was immaterial because the Court lacks a ?warrant to ignore clear statutory language on the ground that other courts have done so.?  Second, the lower courts have not universally relied on Crooker: the circuits are divided four to three.  And Crooker has not been ?extensively discussed or debated?; indeed, outside of the D.C. Circuit, federal appeals courts have only cited Crooker?s analysis of Exemption 2 five times in the past three decades.

The Court similarly rejected the government?s suggestion that it adopt a new construction of Exemption 2 ?based on the plain text . . . alone? ? for example, the phrase ?personnel rules and practices of an agency? would be construed as ?an agency?s rules and practices for its personnel.? But, the Court noted, a ?personnel file? is not ?any file an employee uses.?  This proposed construction, which the Court dubbed ?Super 2,? would allow Exemption 2 to serve as an ?all-purpose back-up provision? for withholding.

Although it rejected the application of Exemption 2 to protect the documents in this case, the Court emphasized that the government did have ?other tools at hand to shield national security information and other sensitive materials.?  For example, Exemption 1 prevents access to classified documents, Exemption 7 protects information ?compiled for law enforcement purposes? whose release ?could reasonably be expected to endanger the life or physical safety of any individual,? and Exemption 3 shields records exempted from disclosure by any other statute.  In particular, the Court noted, the Ninth Circuit may still address the Navy?s Exemption 7 claim on remand.  Indeed, Justice Alito wrote a separate concurrence to emphasize that ?the Navy has a fair argument that the [ESQD] information falls within Exemption 7(F).?

Full post as published by SCOTUSBLOG on March 08, 2011 (boomark / email).