March 07, 2011

Supreme Court Decides Milner v. Department of the Navy

On March 7, 2011, the U.S. Supreme Court decided Milner v. Department of the Navy, No. 09-1163, holding that Exemption 2 of the Freedom of Information Act (FOIA) encompasses only records relating to employee relations and human resources issues, and thus does not encompass the maps and data concerning explosives sought by the plaintiff.

Explosive Safety Quantity Distance (ESQD) information prescribes "minimum separation distances" for explosives and helps the U.S. Navy design and construct storage facilities for such explosives.  Plaintiff Gary Milner filed an FOIA request seeking all ESQD information relating to a naval base in Puget Sound.  The Navy refused, asserting that disclosure would threaten the security of the base and surrounding community and invoking Exemption 2 of the FOIA, which protects from disclosure material "related solely to the internal personnel rules and practices of an agency." 5 U. S. C. §552(b)(2).  The district court granted summary judgment to the Navy, and the Ninth Circuit affirmed. 

The Supreme Court reversed, holding that because Exemption 2 encompasses only records relating to employee relations and human resources issues, the explosives maps and data requested here do not qualify for withholding under that exemption.  The Court rejected circuit court jurisprudence that had divided Exemption 2 into two categories, "High 2," which protected

any "predominantly internal" materials whose disclosure would significantly risk circumvention of agency regulation or statutes, and "Low 2," which protect information concerning conditions of employment in federal agencies (e.g., hiring and firing, work rules and discipline, compensation and benefits).  Noting Congress's goal of "broad disclosure" in the FOIA in general and in the adoption of Exemption 2 in particular, the Court held that the statute protects only what the circuit courts had termed "Low 2," the personnel records.  The Court expressly noted that its decision did not prevent the Navy from using other Exemptions to protect the information at issue or from seeking further protection from Congress.

Justice Kagan delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Alito, and Sotomayor joined.  Justice Alito filed a concurring opinion.  Justice Breyer filed a dissenting opinion.  

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