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Reporters Committee lauds another win for openness in Supreme Court

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  1. Freedom of Information
The Reporters Committee for Freedom of the Press lauded today’s U.S. Supreme Court decision in another decision favorable to open…

The Reporters Committee for Freedom of the Press lauded today’s U.S. Supreme Court decision in another decision favorable to open government, this time ruling that the Navy’s use of a Freedom of Information Act exemption for records regarding internal agency personnel rules and practices was improperly invoked to deny the release of maps and charts.

“For the second time in a week, the Supreme Court has reinforced the public's right to get valuable information held by the government through the Freedom of Information Act,” said Reporters Committee Executive Director Lucy A. Dalglish. “The government's interpretation of the ‘High 2’ exemption was tortured, at best, and once again the Court relied on a common sense approach to government transparency.”

Last week, the court ruled that AT&T could not use a FOIA exemption related to “personal privacy” to prevent the Federal Communications Commissions from releasing records about the corporation.

The Reporters Committee and 19 news organizations filed an amicus brief last September in Milner v. Department of the Navy cautioning against the “erroneous” expansion of FOIA Exemption 2 with so-called “High 2” information that includes more than basic personnel rules and records.

“Exemption 2 by its plain language exempts only those materials ‘related solely to the internal personnel rules and practices of an agency.’ However … it has been expanded by agency interpretation and adopted by lower courts to over time cover more than just trivial matters of internal procedure to also include almost any record whose disclosure could enable some unidentified party to commit a hypothetical crime at some undefined future time,” the media brief noted.

The Supreme Court agreed that Exemption 2 should be limited, although it noted that there are “other tools at hand to shield national security information and other sensitive materials,” including post FOIA-request classification. The Court sent the case back to the lower court to determine whether another exemption covering certain law-enforcement records may apply.

Justice Elena Kagan, writing for the 8-1 majority, noted that Congress’ intent to limit Exemption 2 to personnel rules and practices, so-called “Low 2” information, was clear and should not be expanded to encompass other information under the more amorphous “High 2” categorization.

“Our construction of the statutory language simply makes clear that Low 2 is all of2 (and that High 2 is not 2 at all…),” Justice Kagan wrote.

Further the Court dismissed the argument that the maps and charts sought in the FOIA request fell under Exemption 2 because they are used by Navy personnel. “Many documents an agency generates in some way aid employees in carrying out their responsibilities. If Exemption 2 were to reach all these records, it would tend to engulf other FOIA exemptions, rendering ineffective the limitations Congress placed on their application,” Justice Kagan wrote.

For background and analysis of the Court’s decision, go to the Reporters Committee website.

Lucy A. Dalglish
Executive Director
Reporters Committee for Freedom of the Press; 703-807-2100