The Supreme Court chose to limit the reach of an exemption to the Freedom of Information Act on Monday, adopting a narrow interpretation of the ability to withhold agency records. The near unanimous decision in Milner v. Department of Navy constrained the scope of FOIA’s Exemption 2, which protects from release any information “related solely to the internal personnel rules and practices of an agency.”
The case took shape when the Navy denied anti-nuclear activist Glen Milner’s FOIA request for maps of its main West Coast ammunition dump near Port Townsend, Washington. The Navy cited Exemption 2 in telling him that, “the disclosure would threaten the security of the base and surrounding community,” according to the Supreme Court decision. Claiming residents near the base may be at risk of an explosion, Milner appealed and lost in District Court and the Court of Appeals.
The Supreme Court case, which was argued in December, turned into a question about the meaning of the word “personnel.” Crooker v. Bureau of Alcohol, Tobacco & Firearms, a 1981 D.C. Circuit court case, established that while the word referred to “pay, pensions, vacations, hours of work, lunch hours, parking, etc.” it also encompassed “predominantly internal” information as well. The exemption took on two definitions: “High 2” to represent sensitive government information and “Low 2” to represent routine employee data.
In Justice Elena Kagan’s decision, she abolished the invocation of “High 2.” She wrote: “Exemption 2, consistent with the plain meaning of the term ‘personnel rules and practices,’ encompasses only records relating to issues of employee relations and human resources. The explosives maps and data requested here do not qualify for withholding under that exemption.”
The lone judge to vote against the decision was Justice Stephen Breyer, who wrote in his dissent that the court should hesitate to change the meaning of a word that was established 30 years ago by another federal judge. “I would let sleeping legal dogs lie,” he wrote.
The upending of the old definition will make it vastly more difficult for federal agencies to withhold documents under Exemption 2, which has historically been widely used. The provision was invoked 72,000 times last year alone.
This decision follows closely after last week’s decision in Federal Communications Commission v. AT&T, Inc., which barred corporations from claiming the right to personal privacy from the disclosure of law enforcement records under FOIA’s Exemption 7(C).