Milner v. Department of the Navy
179 L. Ed. 2d 268, 562 U.S. 562, 2011 U.S. LEXIS 2101 (2011)
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Rule of Law:
Exemption 2 of the Freedom of Information Act (FOIA), which protects records "related solely to the internal personnel rules and practices of an agency," is limited to records concerning employee relations and human resources matters. The exemption does not cover any internal agency records whose disclosure might risk circumvention of the law.
Facts:
- The Department of the Navy (Navy) maintains a naval base on Naval Magazine Indian Island in Puget Sound, Washington, where it stores weapons, ammunition, and explosives.
- To manage the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) information.
- ESQD data prescribes minimum separation distances for explosives and is used to design storage facilities to prevent chain-reaction explosions.
- The ESQD calculations are often visualized on specialized maps that depict the potential effects of hypothetical explosions.
- In 2003 and 2004, Glen Milner, a resident of Puget Sound, submitted FOIA requests seeking all ESQD information pertaining to the Indian Island base.
- The Navy refused to release the data, asserting that its disclosure would threaten the security of the base and the surrounding community.
Procedural Posture:
- Glen Milner filed a Freedom of Information Act (FOIA) request with the Department of the Navy.
- The Navy denied the request, invoking Exemption 2 of FOIA.
- Milner sued the Navy in the U.S. District Court for the Western District of Washington, which is a federal trial court.
- The District Court granted summary judgment in favor of the Navy.
- Milner, as the appellant, appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- A panel of the Ninth Circuit affirmed the trial court's ruling, siding with the Navy (appellee).
- The U.S. Supreme Court granted Milner's petition for a writ of certiorari to resolve a circuit split on the interpretation of Exemption 2.
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Issue:
Does Exemption 2 of the Freedom of Information Act (FOIA) exempt from disclosure an agency's data and maps used for the storage of explosives, on the grounds that they are related to internal agency practices and their disclosure would risk circumvention of the law?
Opinions:
Majority - Justice Kagan
No. Exemption 2 of the FOIA does not exempt from disclosure the Navy's explosives data and maps because the exemption is narrowly confined to records concerning an agency's internal personnel and human resources matters. The court's analysis begins and ends with the plain text of the statute, focusing on the word 'personnel.' This term, as used in common parlance and elsewhere in FOIA (e.g., Exemption 6's reference to 'personnel... files'), refers to employee relations and human resources issues like pay, sick leave, and parking rules. The ESQD data concerns the physical rules of explosives, not the workplace rules of sailors. The Court explicitly rejects the 'High 2' interpretation, developed in Crooker v. Bureau of Alcohol, Tobacco & Firearms, which exempted internal records whose disclosure would risk circumvention of the law. This interpretation is disconnected from the statutory text, would render other exemptions like 7(E) superfluous, and is based on conflicting legislative history that cannot override clear statutory language.
Dissenting - Justice Breyer
Yes. The Court should have upheld the withholding of the records by adhering to the established 'High 2' interpretation of Exemption 2. The dissent argues that the D.C. Circuit's decision in Crooker, which established the circumvention-risk test, has been the settled and consistently followed law for 30 years. Congress has been aware of this interpretation and has not amended Exemption 2, suggesting implicit acquiescence. This 'practical approach' has allowed agencies to protect sensitive information not covered by other exemptions, such as building plans, computer passwords, and security assessments. Overturning this long-standing precedent upsets decades of agency practice and creates a gap in FOIA's protections, forcing agencies into difficult choices between disclosure of sensitive information and potentially over-classifying documents.
Concurring - Justice Alito
No. While agreeing with the majority's textual analysis that Exemption 2 does not apply, the concurrence highlights that other FOIA exemptions may protect the information on remand. Specifically, Exemption 7(F), which protects records 'compiled for law enforcement purposes' if their disclosure could endanger physical safety, might apply. The phrase 'law enforcement purposes' should be interpreted broadly to include not just reactive criminal investigations but also proactive measures designed to prevent crime and maintain security, such as counter-terrorism efforts. The Navy's ESQD data, if compiled as part of an effort to prevent terrorist attacks and maintain base security, could reasonably be considered compiled for a law enforcement purpose, thus potentially qualifying for exemption under 7(F).
Analysis:
This decision significantly narrows the scope of FOIA Exemption 2, repudiating the widely used 'High 2' or 'circumvention' test that had been law in many circuits for three decades. The ruling clarifies that Exemption 2 is a narrow, 'housekeeping' exemption strictly limited to human resources and employee relations matters. Consequently, federal agencies can no longer rely on Exemption 2 to withhold a wide range of sensitive but unclassified internal documents, such as security procedures, law enforcement manuals, or vulnerability assessments. Agencies must now justify withholding such information under other, more specific exemptions like Exemption 1 (national security) or Exemption 7 (law enforcement), which may have stricter requirements.
