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Quick Look: Milner v. Department of Navy Ruling

March 7, 2011

The Supreme Court

The U.S. Supreme Court just issued a decision in Milner v. Department of the Navy.  In the 8-1 decision (Justice Breyer was the lone dissenter), the court ruled that Exemption 2 of the Freedom of Information Act only pertains to “records relating to employee relations and human resources issues.”  This stands against the commonly applied broad interpretation of exemption 2, described in Crooker v. Bureau of Alcohol, Tobacco, and Firearms, that encompassed records whose release would “significantly ris[k] circumvention of agency regulation or statutes.”

Exemption 2 was applied 3,364 times in 2010 by the DOD and represents just over 10 percent of DOD’s FOIA rejections based on claimed exemptions.  The text of the statutory exemption (5 U. S. C.§552(b)(2)) is below:

(b) This section does not apply to matters that are…

(2) related solely to the internal personnel rules and practices of an agency

Courts and agencies commonly refer to the exemption for human resource materials (e.g. personnel files) as “Low 2″ and the broadly interpreted exemption 2 (e.g. “records whose disclosure would risk circumvention of the law”) as “High 2″.  The courts ruling, written by Justice Kagan, maintains that “under this Court’s construction of the statutory language, Low 2 is all of 2.”

The case arose out of a FOIA request from Puget Sound resident Glen Scott Milner, requesting Explosive Safety Quantity Distance (ESQD) data regarding the Navy’s Indian Island Installation in Puget Sound.  Ostensibly, Milner was interested in information regarding the placement and blast radius of explosive munitions on the installation and any potential danger to surrounding residents.  The Navy denied Milner’s request, citing Exemption 2 and claiming that the disclosure of any information could potentially threaten the security of the installation and surrounding community, particularly if it fell into the hands of a terrorist organization or other militant group.

Of course, the decision does not mean that Milner will get his way.  A decision regarding the applicability of Exemption 7 is still pending in the Ninth Circuit Court.  Additionally, Kagan made it very clear that Exemption 2 is not the only means available to the DOD in preventing the disclosure of the data, claiming, “the Government has other tools at hand to shield national security information and other sensitive materials,” and citing potentially applicable Exemptions 1, 3, and 7.  Further Kagan allows that “if these or other exemptions do not cover records whose release would threaten the Nation’s vital interests, the Government may of course seek relief from Congress,” an option that some speculate will be the DOD’s most-likely recourse.

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