U.S. Supreme Court rules “High 2” exemption does not exist

From the Spring 2011 issue of The News Media & The Law, page 12.

The U.S. Supreme Court ruled in March that an exemption often used by federal agencies to prevent the release of documents they consider sensitive does not exist, sending federal Freedom of Information Act officers scrambling for another exemption to deny public access to such documents.

In an 8-1 decision in Milner v. Department of the Navy, the Court ruled that the “High 2” interpretation under Exemption 2 to FOIA, which had been used by federal agencies for approximately 30 years to withhold a wide range of information, should never have been created by the courts.

Exemption 2, which exempts information “related solely to the internal personnel rules and practices of an agency” had been interpreted since 1981 as containing a “High” and a “Low” level after the U.S. Court of Appeals for the District of Columbia held in Crooker v. Bureau of Alcohol, Tobacco & Firearms that “predominately internal” documents that “risk circumvention of the law”could be withheld under Exemption 2.

“High 2” has been used to withhold a wide-range of documents including those concerning the identification of aircraft on Federal Aviation Authority radar plots, codes pertaining to the Drug Enforcement Administration’s internal system of identifying investigations and information related to an immigration detention facility’s suicide prevention procedures.

Since the terrorist attacks on Sept. 11, 2001, “High 2” has been used to withhold unclassified documents concerning “critical infrastructure” that could conceivably be used to cause harm to, among other things, national security, according to the U.S. Department of Justice’s 2004 FOIA guide. Critical infrastructure includes systems that keep the country operating, such as communications, energy, transportation and banking.

Any document “that reasonably could be expected to enable someone to succeed in causing the feared harm” that cannot appropriately be classified may be exempt under Exemption 2, according to the guide. This stance is consistent with a 2002 memorandum, issued by then-White House Chief of Staff Andrew Card, that encouraged the use of Exemption 2 to withhold “sensitive” information.

“Low 2” was used to exempt materials that fit under the literal wording of the exemption, which includes documents about the procedures relating to internal personnel matters such as pay, pension, vacation and parking policies.

In the opinion, written by Justice Elena Kagan, the Court held that “Low 2 is all of 2 (and that High 2 is not 2 at all).” The “High 2” interpretation “is nowhere evident in the statute,” the decision noted.

Glen Scott Milner, a Puget Sound, Wash., resident, requested information from the U.S. Navy about the explosive power of munitions at the nearby Naval Magazine Indian Island base.

The information is used to aid in the safe storage and transport of munitions, by prescribing the minimum distance munitions must be from each other. The information is also used to design and construct storage facilities to help minimize explosive chain reactions.

Milner requested the information because it also contains maps charting potential blast radii if there were an explosion on the base.

Milner wanted the information in order to find out if the munitions storage posed a threat to local communities and publicly navigable waters.

The Navy denied the request under the “High 2” exemption, claiming the release of the information would threaten the security of the base and the surrounding areas if it fell into the wrong hands.

The government argued that the information is used by the Navy to identify security issues and to prevent harm, but if it were to be used by a terrorist, it could “wreak havoc,” as a U.S. Court of Appeals in San Francisco (9th Cir.) panel, sitting in Seattle, observed.

The federal district court and the appeals court found for the Navy, saying “High 2” was properly applied to withhold the records. Milner argued that Exemption 2 only applied to routine internal personnel practices, which does not include ammunition maps. David Mann, attorney for Milner, said he never believed in a “High 2” exemption.

“We went into [this case] with the goal of dismantling the High 2 exemption,” Mann said.

In its opinion, the Court relied on the literal meaning of the statutory language: “’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.”

“[T]his odd reading,” the Court said of the use of a “High 2” exemption, “would produce a sweeping exemption, posing the risk that FOIA would become less of a disclosure than a ‘withholding statute.’”

The majority also dismissed the position of the lone dissenting justice, Justice Stephen Breyer, who posited that “High 2” should be sanctioned because it had been in wide use for more than 30 years.

The Court also dismissed the government’s argument that there was clear legislative intent to support a broad interpretation of Exemption 2, finding that legislative history “is meant to clear up ambiguity, not create it.”

The government argued that a 1966 House Report on FOIA showed an intent to cover more information than the text implies. However, the Court also noted a 1965 Senate report, with a nearly opposite interpretation, that advocated for a “Low 2” reading only. “When presented, on the one hand, with clear statutory language and, on the other, with dueling committee reports, we must choose the language.”

Exemption 2, as properly interpreted according to the Court, does not contain protections under which the information that Milner requested may be withheld. “The explosives maps and data requested here do not qualify for withholding.”

The Court was sensitive to the fact that it was upsetting years of precedent in the appellate courts. Breyer noted that there are many records that are now without protection of a FOIA exemption, including: blueprints for buildings that store biological agents, agency credit card numbers, security plans for the Supreme Court Building and Supreme Court justices, Bureau of Prisons guidelines for controlling riots and storing hazardous chemicals, guidelines for assessing the sensitivity of military programs, and guidelines for processing Medicare reimbursement claims.

As such, the Court recognized that the Navy has a significant interest in withholding the documents, but cited other avenues for the Navy to pursue, including classifying documents, which may be done even after a document is requested through FOIA, or seeking a legislative fix.

The case was remanded to the Ninth Circuit for the Navy to argue an alternate exemption, 7(F), which was not raised before the Supreme Court.

In his concurrence, Justice Samuel Alito suggested the documents could be withheld under Exemption 7(F), which exempts law enforcement materials whose release “could reasonably be expected to endanger the life or physical safety of any individual.”

The biggest problem with applying Exemption 7(F) to the “Explosive Safety Quantity Distance” information sought by Milner is the requirement that the materials be for law enforcement purposes. Traditionally, this and the other exemptions under Exemption 7 are applied to police records.

Alito argued that, because the information sought by Milner is created to prevent harm to the base and the surrounding communities, it should qualify as being created for law enforcement purposes because “[c]rime prevention and security measures are critical to effective law enforcement as we know it.”

The Navy cited this exemption in addition to Exemption 2 when it withheld the documents, but it was not subject to litigation because the Ninth Circuit only ruled on Exemption 2 in its majority opinion. However, the dissenting judge in the Ninth Circuit mentioned Exemption 7(F) and dismissed its applicability because the Navy, in his view, is not a law enforcement agency.

At press time, the Ninth Circuit had not yet received the mandate from the Supreme Court to take the case, but Mann said that it could come down any day, at which point he expects a briefing schedule. Mann expects that the government will want another opportunity to argue Exemption 7(F), as does he. Mann said he believes the government’s 7(F) argument is “extremely weak.”

Tom Blanton, director of the National Security Archive at George Washington University, which frequently requests and publishes declassified documents obtained through FOIA, said he thinks there are several proposals in the works to exempt records that had previously been withheld under the “High 2” exemption. “Amendments will come forward,” he said. “Everyone knows they’re coming.”

The question is the form the amendments come in, Blanton said. “Advocates would much prefer not to return to wide open language” that was previously recognized and thrown out by the Milner decision. The preferable route would be for real, specific categories or records to be exempted through multiple, narrow statutes, he said.

In the meantime, Blanton said agencies will find ways to avoid releasing documents that previously would be withheld under Exemption 2.

The records will be classified, they will be withheld under another exemption, or agencies will “drag their heels” on processing the requests, “hoping for a change in the law,” Blanton said.

Any change in the law, should be narrow, Blanton said. Otherwise, it would be “contrary” to the stated policy of the Obama administration, which stated there is a presumption toward openness in FOIA.

Blanton’s predictions already seem to be coming true. On April 15, the U.S. Department of Defense sent a package of legislative proposals to Congress for inclusion in the National Defense Authorization Act for the Fiscal Year 2012 that included two Exemption 3 statutes that appear to address two classes of records that were once considered exempt under “High 2.”

The first would exempt Department of Defense “critical infrastructure” from disclosure, specifically including “explosives safety information (including storage and handling)” in the definition for critical infrastructure.

Mann says that the Department of Defense proposal would cover the information his client requested and that, while he is glad the government has not attempted to create a new “High 2,” he does not like the proposal.

“At least it’s a narrow approach,” Mann said. “But I still think communities should have access to this information.”

The second proposal would exempt military flight information.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief to the Supreme Court, urging a rejection of “High 2.”

The U.S. Department of Justice did not respond to a request for comment for this story.