Justice Department issues guidance on FOIA Exemption 2

More than two months after the U.S. Supreme Court rejected the "High 2" interpretation of Exemption 2 to the federal Freedom of Information Act in Milner v. Department of the Navy, the Department of Justice's Office of Information Policy yesterday issued guidance to all federal agencies on how best to respond to what it described as "a landmark case in the history of the FOIA."

In acknowledging that "High 2" no longer exists, OIP instructed agencies to conduct a three-part inquiry into whether records can be held withheld under Exemption 2. Exemption 2 excepts from mandatory disclosure under FOIA those records "related solely to the internal personnel rules and practices of an agency."

First, agency personnel must determine that the records at issue are related to "personnel" rules and practices. OIP notes that this was the "key word" the Supreme Court focused on within the exemption and it is the term that primarily defines the exemption's scope. Quoting from language found in the Milner decision, the guidance notes that records related to employee relations and human resource matters, including the "selection, placement, and training of employees and . . . the formulations of policies, procedures, and relations with [or involving employees] employees or their representatives," meet this threshold requirement.

OIP guidance specifically instructs that records written "for" personnel to use in fulfilling job duties do not fall within the definition of a personnel record if they are not directly related to personnel matters.

Second, the records must relate "solely" to personnel rules and practices, meaning they are "exclusively" or "only" related to personnel matters.

Finally, the records must be "internal"; that is, "the agency must typically keep the records to itself for its own use," according to the high Court.

The guidance noted that the last two requirements bear upon whether the records are of "genuine and significant public interest." Citing prior Supreme Court case law in which the Court held that Exemption 2 did not apply to records of summary reports detailing U.S. Air Force Academy cadet disciplinary matters, the guidance notes that often the public has an interest in what could be viewed as an internal personnel matter.

The guidance continues: "Thus, in assessing whether information relates 'solely' to the 'internal' personnel rules and practices of an agency, it is necessary for agencies to assess whether there is a 'genuine and significant public interest in disclosure'" despite the fact that a record may be properly classified as a "personnel" record.

The guidance goes on to note that, even if a record could be withheld under Exemption 2, the record may be a prime candidate for discretionary disclosure. Attorney General Eric Holder's March 19, 2009, FOIA memorandum encouraged agencies to make discretionary releases if no foreseeable harm would result from disclosure.

"The opportunities to make discretionary disclosures of material technically protected by the newly defined Exemption 2 remain as viable as ever," the OIP guidance says. "Thus, before invoking Exemption 2, agencies should ensure that they first make a determination whether disclosure of the information at issue would cause foreseeable harm." Given that the primary thrust of Exemption 2 was "simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection" rather than a specific need for secrecy, Exemption 2 records may potentially be disclosed without harm.

The guidance then discusses how agencies can look to other FOIA exemptions to cover records previously protected by "High 2." Exemption 1, which protects classified information, could apply. OIP even suggests classification after a FOIA request is made. Existing Exemption 3 statutes may apply. OIP suggests that "agencies should consider seeking relief from Congress in the form of a new Exemption 3 statute" should the need arise.

Further, Exemption 4 protections against the disclosure on confidential business information could potentially be used to protect critical infrastructure plans submitted to an agency if their disclosure would be of interest to competitors or interfere with "agency program effectiveness." Exemption 4 could also protect "bank account numbers and credit card numbers."

OIP also suggests application of the personal privacy protections of Exemption 6. "It is possible that information that previously was withheld under Exemption 2 could qualify for protection under Exemption 6. For example, telephone numbers and pass codes assigned to participants of a conference call could be protected under this exemption as those participants have a privacy interest in ensuring that no uninvited person is listening in on the call and there is no public interest in disclosure of such numbers."

Finally, the guidance suggests turning to Exemptions 7(E) and 7(F). Exemption 7(F) protects law enforcement records whose disclosure "cold reasonably be expected to endanger the life or physical safety of any individual." The exemption may still prove applicable on remand in the Milner case. Exemption 7(E) encapsulates a "High 2" for law enforcement records as it partially tracks the now defunct "High 2" language. It exempts from mandatory disclosure law enforcement records that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."

The guidance also noted that, given Milner's wholesale rejection of "High 2," the government may have sound legal basis to assert new exemptions in its place in any pending FOIA litigations.