I. History of the High 2/Low 2 Distinction

In Milner, the U.S. Supreme Court resolved a significant split among federal circuit courts of appeal as to the scope of Exemption 2, and limited the types of records for which agencies may now invoke Exemption 2.4

Prior to Milner, three federal appeals courts interpreted Exemption 2 strictly, holding it applied to records “related solely to the internal personnel rules and practices of an agency” — a category of Exemption 2 materials commonly referred to as “Low 2.”5 For example, a court ruled that the Department of Justice could withhold under “Low 2” those portions of a Drug Enforcement Administration Agents’ manual that addressed “mere ‘housekeeping’ matters, such as instructions on filling out forms” and “procedures for requisitioning cars from the car pool.”6

However, four other federal appellate courts ruled that Exemption 2 included — in addition to “Low 2” materials — “predominant[ly] internal[]” materials, the disclosure of which would “significantly risk[] circumvention of federal statutes or regulations.”7 This category of materials became known as “High 2.”8 Agencies relied on this “High 2” interpretation to withhold, for example, portions of an agency manual that referred to investigative techniques,9 as well as FBI symbols related to informants.10

The government aggressively relied on “High 2” following the September 11, 2001, terrorist attacks. Citing the need to “safeguard sensitive but unclassified information related to America’s homeland security,” then-White House Chief of Staff Andrew Card in 2002 instructed executive agency and department heads to withhold “sensitive critical infrastructure information” under Exemption 2.11 Similarly, the Department of Justice issued guidance in 2001 stating that “[a]gencies should be sure to avail themselves of the full measure of Exemption 2’s protection,” and specifically noted that “High 2” could be used to withhold “a wide range of information.”12

In Milner, the U.S. Supreme Court clarified that “Low 2 is all of [Exemption] 2 (and that High 2 is not 2 at all).”13 The Court held that the U.S. Navy could not rely on Exemption 2 to withhold data and maps that calculate and depict hypothetical munition detonation blast ranges, as the materials related to “the physical rules governing explosives” and “the handling of dangerous materials,” rather than “the workplace rules governing sailors” or “the treatment of employees.”14

Therefore, in arguing that Exemption 2 does not apply to the records you seek, you should explain how they are not “related solely to the internal personnel rules and practices of an agency.”

4 See id.

5 See Stokes v. Brennan, 476 F.2d 699, 702-03 (5th Cir. 1973); Cox v. U.S. Dep’t of Justice, 576 F.2d 1302, 1309-10 (8th Cir. 1978); Hawkes v. Internal Revenue Serv., 467 F.2d 787, 796-97 (6th Cir. 1972).

6 Cox, 576 F.2d at 1308-09.

7 See Crooker, 670 F.2d at 1053; Milner v. U.S. Dep’t of Navy, 575 F.3d 959, 965 (9th Cir. 2009), rev’d, 131 S.Ct. 1259 (2011); Massey v. Fed. Bureau of Investigation, 3 F.3d 620, 622 (2d Cir. 1993), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011);Kaganove v. Envtl. Prot. Agency, 856 F.2d 884, 889 (7th Cir. 1988), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011).

8 Milner, 131 S. Ct. at 1263.

9 Crooker, 670 F.2d at 1072-73.

10 Massey, 3 F.3d at 622.

11 Memorandum from Andrew H. Card, Jr., to The Heads of Executive Departments and Agencies (Mar. 19, 2002) (attaching accompanying Memorandum from Laura L.S. Kimberly, et al. to Departments and Agencies (Mar. 19, 2002)).

12 U.S. Dep’t of Justice, Office of Information and Privacy, FOIA Post (Oct. 15, 2001).

13 Milner, 131 S. Ct. at 1265 (internal citation omitted).

14 Id. at 1266.