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The delicate act of balancing the public’s right to know with national security in a time of terrorism was displayed on the floor of the U.S. Supreme Court in arguments held Wednesday morning.
The case before the court, Milner v. Department of the Navy, concerned the Navy’s decision to withhold documents requested under the federal Freedom of Information Act regarding U.S. Navy maps depicting the placement of explosives at a Washington state naval munitions site.
The Navy refused area resident Glen Scott Milner’s FOIA request for safety maps and data that show the placement and potential blast ranges of ammunition stored in Naval Magazine Indian Island, located near Port Hadlock, Wash. Milner was seeking information on the potential dangers to the nearby communities of the Navy's munition storage practices.
The decision to withhold the records, which has been upheld by lower trial courts and the U.S. Court of Appeals in San Francisco (9th Cir.), is grounded in the “High 2” FOIA exemption. The High 2 exemption is applied to records that, if disclosed, the government believes would enable individuals to circumvent agency regulation or law. The Navy argued that disclosure in this case would potentially threaten the security of the base and its surrounding communities should such information fall into terrorist hands and provide them with a blueprint on how to cause maximum damage.
At Wednesday's argument, Milner's attorney, David Mann, argued that FOIA Exemption 2 is limited to routine internal personnel practices, a category that does not include ammunition maps. The statute under Exemption 2 exempts from disclosure information "related solely to the internal personnel rules and practices of an agency."
The "High 2" category of Exemption 2, which was judicially recognized in 1981 in Crooker v. Bureau of Alcohol, Tobacco and Firearms and was intended to apply to more sensitive government information, is an overly-broad and unnecessary example of judicial legislation, Mann contested.
"The world has changed in a lot of ways since 1981, and one is that there is now, I think, much greater concern about the disclosure of information that has perhaps profound security implications," said Justice Samuel Alito.
Assistant to the Solicitor General Anthony Yang, who argued the case for the Navy, argued that disclosure of the requested documents would also be a slap in the face to 30 years of courts’ reliance on the High 2 exemption as set forth in Crooker.
Justice Sonia Sotomayor pointed out how Crooker broadened Congress’ language in Exemption 2 from “related solely to the internal" to “predominantly internal” in what she called some “sort of judicial crafting.”
Mann also explained the importance of the narrowly-tailored language Congress used in writing Exemption 2. The danger of a broad interpretation is that “any time an agency feels it may be appropriate that it might not want to release something, it can rely on Exemption 2,” he said.
High 2 was incorrectly applied in this case considering that it historically has been used to cover law enforcement and investigative materials, “items that were covered through the 1986 amendments to FOIA, making any additional judicial High 2 unnecessary,” Mann said.
Yang argued that Congress’ adoption of FOIA section 7(e), which exempts from disclosure investigative techniques and procedures, was an endorsement of High 2.
However, Chief Justice John Roberts said that Congress' amendment of Exemption 7 had no effect on Exemption 2.
“Well, they amended Exemption 7 … to adopt Crooker in certain areas,” Yang said.
“Yes. Exactly,” Roberts replied, “not this one.”
In her questioning of Mann, Sotomayor mentioned that Congress made a conscious decision to not apply Crooker to Exemption 2 when adding Exemption 7. “So there has to be a meaning to the decision to limit the amendment,” she said.
However, there could be an infinite number of reasons why a law was not passed, Justice Antonin Scalia said.
“It seems to me you're asking us to do your job,” Roberts said to Yang, taking note of what emerged as the heart of the matter at argument. If the documents were truly sensitive enough to harm the national interest, the Navy could classify them “instead of coming to us and saying you should torture the language in FOIA," he said.
One reason for not classifying the documents is to make them available for local fire and police officials in case of an emergency, Yang said.
“If the Navy doesn't believe that these documents can be or should be classified, but the Navy doesn't want to release these documents for some reason, then the Navy's recourse is to go to Congress as other agencies have done and seek a special protection for these documents,” Mann said.
Returning to the language of the exemption, the court questioned Yang about what constituted personnel files.
Scalia and Sotomayor agreed for the sake of argument that everything in a government agency could be considered personnel files.
“All functions have to be undertaken by humans,” Justice Anthony Kennedy added somewhat wryly.
The Reporters Committee for Freedom of the Press filed an amicus brief on behalf of Milner.