U.S. Supreme Court rejects FOIA "High 2" exemption

Christine Beckett | Freedom of Information | Feature | March 7, 2011

The U.S. Supreme Court held Monday that the use of a "High 2" exemption to the federal Freedom of Information Act to withhold non-personnel records is improper, saying that the expansive interpretation of the exemption does not exist.

Milner v. Department of the Navy is the second major FOIA case the Supreme Court has decided in the last week. In both Milner and last week's FCC v. AT&T, the Court held in favor of narrow interpretations of FOIA exemptions.

The exact wording of Exemption 2 covers information "related solely to the internal personnel rules and practices of an agency." However, in 1981, the U.S. Court of Appeals for the District of Columbia established the "High 2" and "Low 2" distinctions in its ruling for Crooker v. Bureau of Alcohol, Tobacco & Firearms. The distinctions were first discussed years before by the U.S. Supreme Court, but never resolved.

"Low 2" has been interpreted as relating to the direct interpretation of the Exemption 2 language, meaning personnel matters relating to pay, pension, vacation, parking and so forth. "High 2" has been used to exempt a wider range of information using the Crooker standard of exempting those documents that would "risk circumvention of the law."

In Monday's case, Glen Scott Milner, a Puget Sound, Wash., resident, requested from the Navy a chart mapping the potential blast radii -- Explosive Safety Quantity Distance, or ESQD, information -- of the Naval Magazine Indian Island base near his home. The Navy denied that request, claiming a "High 2" exemption to FOIA because release would threaten the security of the base and the surrounding areas.

A federal district court and the U.S. Court of Appeals in San Francisco (9th Cir.) agreed that the exemption applied. Milner argued that Exemption 2 is limited to routine internal personnel practices, a category that does not include ammunition maps.

The Supreme Court relied on the literal meaning of the statutory language in its decision. Justice Elena Kagan, writing for the majority, focused on the use of the term personnel when holding that there was no "High 2" exemption. Eight justices were in the majority, with Justice Samuel Alito writing a concurring opinion; only Justice Stephen Breyer dissented.

"'Personnel,' in this common parlance, means 'the selection, placement, and training of employees and . . . the formulation of policies, procedures, and relations with [or involving] employees or their representatives," the Court held. "Our construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . .)."

The Court held that allowing the "High 2" exemption to persist would risk undercutting the intent of FOIA because it could potentially be applied to any document held by the federal government. "[T]his odd reading would produce a sweeping exemption, posing the risk that FOIA would become less a disclosure than a 'withholding statute.'"

The Court also dismissed the government's argument that the legislative history showed an intent to allow a more expansive use of Exemption 2. The Court held that legislative history "is meant to clear up ambiguity, not create it."

The Court held that, without "High 2," the ESQD information requested by Milner does not fall under Exemption 2. "By no stretch of the imagination do they relate to 'personnel rules and practices,' as that term is most naturally understood." However, the Court did not order the ESQD information to be released. Instead, it sent the case back to the Ninth Circuit to determine if the information could be withheld under a different exemption, Exemption 7(F), which exempts documents whose release could put others in danger. In his concurrence, Alito explored in detail the potential application of Exemption 7(F).

David Mann, attorney for Milner, said they knew that the decision would not result in an immediate release of the records, but that was not the goal of litigating to the Supreme Court. "We went into this with the goal of dismantling the High 2 exemption," he said. "I was never a believer that High 2 ever existed."

Mann said that the application of Exemption 7(F) was argued before the Ninth Circuit already, but was not addressed in the majority opinion because it turned on Exemption 2. The dissent discussed Exemption 7(F) -- and dismissed it -- Mann said, but he still hopes for the opportunity to reargue why Exemption 7(F) does not apply, in light of Alito's concurrence.

However, "today is all about High 2," Mann said. "It's a great victory for the Freedom of Information Act."