Opinion recap: Court interprets FOIA Exemption 2 narrowly
on Mar 8, 2011 at 10:33 am
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 â€œHigh 2â€ 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 â€œrelated solely to the internal personnel rules and practices of an agency.â€Â The federal government had urged the Court to adopt Crookerâ€™s analysis, under which federal agencies could withhold not only records relating to employee relations and human resources (â€œLow 2â€), but also those records whose disclosure could risk circumvention of the law (â€œHigh 2â€).Â Applying the â€œHigh 2â€ exemption in this case, the Ninth Circuit had upheld the Navyâ€™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. Milnerâ€™s home.
In an opinion authored by Justice Kagan and joined by seven other Justices, the Court sharply rejected the federal governmentâ€™s arguments for adopting the Crooker construction, explaining that High 2 contradicts both the clear text of Exemption 2 and Congressâ€™s goals in enacting FOIA. Â When â€œpersonnelâ€ is used as an adjective, the Court reasoned, it means â€œhuman resourcesâ€; thus, the Court continued, â€œthe only way to arrive at High 2 is by taking a pen to the statute.â€Â The Court criticized the governmentâ€™s â€œtext-lightâ€ interpretation of the statute and its reliance on ambiguous legislative history instead of the clear text.Â Such a reading, the Court emphasized, not only was textually incorrect, but also flouted FOIAâ€™s â€œgoal of broad disclosureâ€ and the Courtâ€™s practice of construing FOIA exemptions narrowly.
The Court also rejected the argument made by Justice Breyer in his dissent â€“ that it should adopt the High 2 reading because lower courts have relied upon Crooker and followed it for thirty years.Â First, the Court noted, this rationale was immaterial because the Court lacks a â€œwarrant to ignore clear statutory language on the ground that other courts have done so.â€Â Second, the lower courts have not universally relied on Crooker: the circuits are divided four to three.Â And Crooker has not been â€œextensively discussed or debatedâ€; indeed, outside of the D.C. Circuit, federal appeals courts have only cited Crookerâ€™s analysis of Exemption 2 five times in the past three decades.
The Court similarly rejected the governmentâ€™s suggestion that it adopt a new construction of Exemption 2 â€œbased on the plain text . . . aloneâ€ â€“ for example, the phrase â€œpersonnel rules and practices of an agencyâ€ would be construed as â€œan agencyâ€™s rules and practices for its personnel.â€ But, the Court noted, a â€œpersonnel fileâ€ is not â€œany file an employee uses.â€Â This proposed construction, which the Court dubbed â€œSuper 2,â€ would allow Exemption 2 to serve as an â€œall-purpose back-up provisionâ€ 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 â€œother tools at hand to shield national security information and other sensitive materials.â€Â For example, Exemption 1 prevents access to classified documents, Exemption 7 protects information â€œcompiled for law enforcement purposesâ€ whose release â€œcould reasonably be expected to endanger the life or physical safety of any individual,â€ and Exemption 3 shields records exempted from disclosure by any other statute.Â In particular, the Court noted, the Ninth Circuit may still address the Navyâ€™s Exemption 7 claim on remand.Â Indeed, Justice Alito wrote a separate concurrence to emphasize that â€œthe Navy has a fair argument that the [ESQD] information falls within Exemption 7(F).â€