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 which would allow a requester to circumvent laws or regulations or to gain an unfair advantage over other members of the public.

The exemption covers records that are:

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 in which the general public is assumed to have little or no interest. Examples covered under “Low 2” include employee parking rules and agency cafeteria rules. “Low 2” would not cover documents that could be viewed as the subject of legitimate public concern, such as personnel evaluation forms.²⁵

“High 2” protects against release of internal “insider” information. Agencies have invoked it to withhold 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)). But the exemption has also applied to guidelines for conducting an audit, for rating applicants for federal employment, for awarding Medicare reimbursement, etc. 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.

After Attorney General Ashcroft directed agencies to consider various reasons for invoking exemptions Justice Department FOI officials called agency attention to advice they had issued in 1989 on the “circumvention protection” of Exemption 2. That advice said the exemption should be “fully available” to protect the government’s own assessments of vulnerability. In light of the tragedies of Sept. 11, 2001, they now speculated that because terrorists might benefit from knowing about vulnerabilities, information about them could be protected under the “circumvention” of harm rationale for invoking Exemption 2.²⁶

Courts have not been particularly receptive to the use of Exemption 2 to protect vulnerability information from terrorists, pointing out that the exemption applies only to “personnel” practices. However, courts have allowed agencies to withhold the same information agencies claim might be useful to terrorists, under the same rationale, by invoking an arm of the law enforcement exemption (Exemption 7(E)).²⁷

To be protected under “High 2,” information must still be predominantly internal and relate to a personnel practice. An agency policy of protecting natural resources was not sufficient to allow the Forest Service to withhold maps showing the location of nesting sites. 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.²⁸

Unless disclosure would clearly enable the public to “circumvent” an agency agenda, staff manuals and instructions should not be withheld.²⁹ Also, agencies should not withhold any more information than is necessary to protect against circumvention. They still must segregate out and release non-exempt portions of the records.

Next section: Statutory Exemption