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Argument recap: Pinning down the scope of Exemption 2

On Wednesday, the Court heard oral argument in Milner v. Department of the Navy, a case concerning the scope of Exemption 2 of the Freedom of Information Act.  During argument, the Court seemed troubled by the prospect of upsetting an understanding on which lower courts and the government had relied for thirty years, but it seemed perhaps more troubled by the broad reading of Exemption 2 proposed by the government.

David Mann, a Seattle-based attorney, argued on behalf of petitioner Glen Scott Milner.  The theme of Mann’s argument was that, while Exemption 2 is narrow, other exemptions protect the government’s security interests.

Justice Alito began by asking Mann whether the Court should defer to the reliance that lower courts, and possibly also Congress and the Executive Branch, had placed on the D.C. Circuit’s decision in Crooker for nearly thirty years.  He noted that the world had changed significantly since 1981, and that there is now “much greater concern about the disclosure of information that has perhaps profound security implications.”  Mann responded to the first question in the negative, pointing to the 1986 amendments to Exemption 7; moreover, he emphasized, other exemptions could protect such information from disclosure. 

Justices Breyer and Scalia pressed Mann on his Exemption 7 argument.  Justice Breyer asked why Congress’s 1986 amendments to Exemption 7 indicated that Exemption 2 should be read narrowly, rather than that Congress was ratifying Crooker.  Mann responded that although Congress had considered an amendment to Exemption 2, it instead amended Exemption 7 so as to resolve the concerns in Crooker.  Justice Scalia asked if Mann was making the “extraordinary proposition” that laws are “in effect only for so long as the Congress that passed them is sitting, and then the failure to make any changes in light of judicial decisions by later Congresses effectively amends the law.” Although Justice Sotomayor chimed in on Mann’s side, Justice Scalia seemed unpersuaded, contending that it was hard enough to figure out Congress passed a law, much less why they did not pass a law.

Justice Kennedy suggested that a victory by Milner would actually lead to more materials being classified and withdrawn wholly from scrutiny.  “So really what you are arguing for is for withholding more information from more people.”  Mann responded that he was not arguing for more withholding, but that it was not a correct use of Exemption 2 to withhold documents from some people but not others.  “If this map that we are looking at is that secure, then perhaps it should be that secure and protected across the board.”

When the questioning returned to the relationship between Exemptions 2 and 7, Mann seemed to almost concede his argument that Crooker was an inappropriate expansion of Exemption 2’s plain language: “[T]he issue here is not so much Crooker as it is what the Ninth Circuit has done to, we believe, expand Crooker.”  Scalia asked him if he was “abandoning” his stance that the language of Exemption 2 was “quite clear.”  Mann replied that he was not.

Arguing on behalf of the Department of the Navy, Assistant to the Solicitor General Anthony Yang opened by arguing that Crooker’s interpretation of Exemption 2 had provided “a workable standard” for thirty years.  Justice Sotomayor asked what the textual basis for Crooker was.  Yang explained “internal” and “related solely” separately.  Later in the argument, the Justices seemed unsettled by Yang’s broad definition of “personnel”:  for example, Justice Scalia suggested that “[a]ll the rules of an agency would . . . be sucked in.”  Yang distinguished rules that govern only personnel from those that the public must take into account as well.  Justice Scalia quipped, “I suppose the Office of Personnel Management has a pretty broad Charter, then, on your theory of what the adjective means.  OPM must be a very powerful agency.” 

Chief Justice Roberts asked a question that was echoed by other Justices during Yang’s argument:  “Why, if these maps are so sensitive as you suggested, why weren’t they classified?”  When Yang emphasized the need to share information with local responders and the difficulties in sharing classified information, the Chief Justice countered that Yang was “asking us to do your job.”  If it would harm the national interest to disclose documents, then agencies can classify them instead of asking the Court to “torture the language in FOIA” to allow nondisclosure.  Later in the argument, the Chief Justice and Justice Breyer pressed Yang on how long it would take to clear firemen to see a classified document.  Justice Alito asked what may have been a helpful question: “Do you think it’s practical to classify all of the information that might have security implications?” 

Justice Ginsburg then asked how Yang’s definition of Exemption 2 was narrower than its predecessor exemption in the Administrative Procedure Act.  Yang gave examples of things that would have been encompassed under the old exemption – phone books and arguably budgets – but were not encompassed under Exemption 2, and he cited the House Report for Exemption 2, arguing that Congress ratified Crooker when it amended Exemption 7 in 1986. 

Chief Justice Roberts broke in, saying that he “would have thought that the amendment to Exemption 7 really cut the other way.”  Yang responded that Congress’s goals in amending Exemption 7 were to extend Crooker in a way that lowered the bar for law enforcement records and to specifically overrule the D.C. Circuit’s decision in Jordan. 

Justice Sotomayor asked Yang whether he saw any difference between his position and Crooker.  He replied that he did not.  Justice Kagan asked what the Court could do to protect the government’s reliance interests, assuming that a majority found “this statutory interpretation untenable” and the Navy lost.  Yang replied that, though he did not want to assume such a thing, the government could return to Congress.  Justice Breyer broke in, stating that it would be impracticable for the government to return to Congress if it had to classify all the documents that the Crooker understanding had protected.  But Chief Justice Roberts noted that agencies already have to review all the documents requested under FOIA before releasing them to see if other exemptions would apply.  Yang replied that there were a large number of FOIA requests.  Chief Justice Roberts added, “And it takes forever to get the documents.” 

Yang closed by arguing that the legislative history supported his position, and he responded to a question from Justice Alito by agreeing that classification was not a practicable solution.  Exemption 2, he continued, addresses a special problem that the other exemptions do not: the problem of releasing documents whose circumvention would frustrate the function of having those documents for the agency.

Mann gave his rebuttal uninterrupted.  He stated that the FOIA exemptions were narrow with one open-ended exception: Exemption 3, which Congress left open for itself.  The Navy, he argued, was asking for “what Congress wouldn’t give them in 1964 or ’66, broad discretion.”

Recommended Citation: Kathryn McCann, Argument recap: Pinning down the scope of Exemption 2, SCOTUSblog (Dec. 3, 2010, 1:27 PM),