High Court Tackles FOIA Exemption

Image via WikipediaThe U.S. Supreme Court heard arguments this week in Milner v. U.S. Dept. of the Navy (Case No. 09-1163) involving the breadth of Exemption 2 of the Freedom of Information Act ("FOIA") [5 U.S.C. sec. 552(b)(2)].

The appellant is seeking a reversal of the decision of the U.S. Circuit Court of Appeals for the Ninth Circuit, which upheld the Navy's refusal to turn over documents sought by Washington resident Glen Scott Milner. Milner requested safety maps and other pertinent data concerning the Indian Island Navy munitions storage facility near Port Hadlock on Puget Sound near his residence.

In denying Milner's FOIA request, the Navy cited Exemption 2, which allows government agencies to withhold documents involving an agency's personnel rules and practices.  Counsel for the appellant argued the plain language of Exemption 2 protects the narrow category of materials involving personnel policies and rulees and shouldn't be broadly construed as a "High 2" exemption shielding information, the disclosure of which "may risk circumvention of agency regulation," in contrast to a "Low 2" exemption that addresses employment issues.

Counsel for the  Dept. of the Navy protested that appellant was attempting to alter 30 years worth of accepted FOIA practice.  Although the High Court often sides with the government on FOIA matters, appellant found a receptive audience in Chief Justice John Roberts and Justices Kennedy, Sotomayor and Scalia. Several news media organizations filed amicus briefs in support of Milner.