Federal Open Government Guide

This exemption covers two different kinds of records. “Low 2” applies to agency management or “housekeeping” records Congress decided would not be of interest to the general public. “High 2” applies to internal documents that would allow a requester to circumvent laws or regulations or to gain an unfair advantage over other members of the public.

Initially, the provision was designed to relieve government agencies of the burden of maintaining for public inspection routine materials that are more or less trivial and assumed to have little or no public interest. This “Low 2” information includes documents such as employee parking rules and agency cafeteria rules. “Low 2” does not cover documents that could be viewed as the subject of legitimate public concern, such as personnel evaluation forms.²⁶

In contrast, internal “insider” information is protected by what has come be known as “High 2.” Agencies use this to withhold, for example, law enforcement manuals, computer security codes and a prison memorandum on telephone surveillance of prisoners. Agencies may use the exemption in conjunction with the arm of the law enforcement exemption that protects the enforcement process (Exemption 7(E)).²⁷ But the exemption also has applied to guidelines such as those for conducting an audit, for rating applicants for federal employment, and for awarding Medicare reimbursement. High 2 presumes that requesters should not get information that will allow them to circumvent not only laws, but agency policies and procedures as well. This is known as the “circumvention of harm” rationale.

Since Sept. 11, 2001, Justice Department FOIA officials have promoted the use of Exemption 2 to protect the government’s own assessments of vulnerability. Officials speculated that because terrorists might benefit from knowing about governmental vulnerabilities, information about them could be protected under the “circumvention of harm” rationale for invoking Exemption 2.

Initially, courts were not particularly receptive to using Exemption 2 to protect vulnerability information from terrorists, pointing out that the exemption applies only to “personnel” practices.²⁸ However, the courts have since upheld a number of agency decisions to withhold this type of information, including information on the airport detention of Iranian-born U.S. citizens and e-mail between the Department of Homeland Security and Census Bureau employees about individuals who identified themselves as Arab during the 2000 census. ²⁹

To be protected under “High 2,” information must still be predominantly internal and relate to a personnel practice. For example, an agency policy of protecting natural resources was not sufficient to allow the Forest Service to withhold maps showing the location of nesting sites of the Northern Goshawk, a large bird of prey. Even though the agency speculated that public disclosure of the maps would endanger the nests, courts ruled that maps are not predominantly internal and do not relate directly to personnel practices.³⁰

Unless disclosure would clearly enable the public to “circumvent” the agency’s regulations or statutes, staff manuals and instructions should not be withheld.³¹ Also, agencies should not withhold any more information than is necessary to protect against circumvention. If some of the materials are withheld, the agency must segregate out and release non-exempt portions of the records.

26 Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976).

27 Protecting Vulnerability Assessments through Application of Exemption 2, FOIA UPDATES, Vol. X, No. 3 (1989).

28 Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003); Coastal Delivery Corp. v. U.S. Customs Service, 272 F. Supp. 2d 958 (C.D. Cal. 2003).

29 Moayedi v. U.S. Customs & Border Prot., 510 F. Supp. 2d 73 (D.D.C. 2007); Elec. Privacy Info. Ctr. v. Dep’t of Homeland Security, No. 04-1625, 2006 U.S. Dist. LEXIS 94615 (D.D.C. Jan. 23, 2007).

30 Maricopa Audubon Society v. U.S. Forest Serv., 108 F.3d 1082 (9th Cir. 1997) and Audubon Soc’y v. U.S. Forest Service, 104 F.3d 1201 (10th Cir. 1997).

31 Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051 (D.C. Cir. 1981).