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The Reporters Committee for Freedom of the Press and 19 other media organizations filed a friend-of-the-court brief Tuesday asking the U.S. Supreme Court to reverse a lower court ruling that denied a federal Freedom of Information Act request for documents regarding ammunition storage procedures at a Washington state Naval base.
The brief argues that the U.S. Court of Appeals for the Ninth Circuit (San Francisco) erred when it sanctioned the Navy’s refusal to disclose the requested information, citing a broad reading of Exemption 2 to FOIA known as a "High 2" exemption.
Glenn Scott Milner, a Puget Sound resident and member of a community organization dedicated to raising awareness of the potential dangers of the Navy’s munition storage practices, submitted FOIA requests for information and maps outlining ammunition blast zones as well as safety and instructional documents for maritime traffic around explosive handling zones on Naval Magazine Indian Island.
Milner filed suit after the Navy withheld certain documents because it claimed their disclosure could threaten the security of the base and surrounding community if that information fell into criminal or terrorist hands.
"Mr. Milner's lawsuit is an important challenge to the trend toward the arbitrary use of the "High 2" exemption by the government," said Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press. "While the navy speculates the release of the information could cause harm, there is no question local residents will be better able to protect their families if they know the scope of the danger presented by the neighboring ammunition magazine."
In the court below, Judge William A. Fletcher filed a dissenting opinion. While not wholly discounting the propriety of the government invoking a "High 2" exemption, Judge Fletcher took issue with applying "High 2" withholdings on the grounds that some unknown third party posed a potential danger to agency operations or security. Judge Fletcher also noted that previous FOIA requests by Milner for comparable information from a nearby Naval base were readily provided to him. However, in the case of the Indian Island facility, which sits slightly more than a mile over open water from the nearest town, access was denied.
The media groups asked the Supreme Court to overturn the lower court’s decision, arguing that the ever-expanding reading of Exemption 2 to FOIA has “led to unchecked discretion on the part of the federal agencies in processing requests.” This gradual expansion, and the unbridled discretion it has imparted in agencies, has reduced FOIA to the very statute it was designed to replace, the media argued. Prior law allowed an agency to withhold records when it deemed it proper to do so in the "public interest."
The media also presented the court with numerous examples of news stories that have used records regarding chemical, nuclear and biological agent storage as well as infrastructure records to expose safety lapses and the resulting threats such lapses pose to local communities. If the U.S. Supreme Court upholds the broad reading given Exemption 2 by the lower court, the public potentially stands to lose the benefit of such reporting as those records may be withheld on similar bases as was the ammunition blast information, the brief stated.
The brief was submitted by the Reporters Committee, ALM Media LLC, the American Society of News Editors, The Associated Press, Bloomberg L.P., Cable News Network Inc., The Citizen Media Law Project, Dow Jones & Company Inc., The E.W. Scripps Company, the First Amendment Coalition, the First Amendment Project, the National Press Club, the National Press Photographers Association, Newspaper Association of America, The Newspaper Guild – CWA, NPR Inc., the Radio Television Digital News Association, the Society of Professional Journalists, Tribune Company and the Washington Post.