The Taming of the "2": Milner v. Department of the Navy Signals the Curtain Call on Debates Surrounding the Scope of Foia's Exemption 2 - Ashley E. Short

• Publication year: 2012

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The Taming of the "2": Milner v. Department of the Navy Signals the Curtain Call on Debates Surrounding the Scope of FOIA's Exemption 2

"Old fashions please me best; I am not so nice / To change true rules for odd inventions."¹

- William Shakespeare

I. Introduction

For more than three decades, federal courts have grappled with the intended scope of Exemption 2 of the Freedom of Information Act (FOIA),² which protects material "related solely to the internal personnel rules and practices of an agency" from mandatory public disclosure.³ However, in Milner v. Department of the Navy,⁴ the United States

1. William Shakespeare, The Taming of The Shrew act 3, sc. 1.

2. 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110175, 121 Stat. 2524.

3. Id. § 552(b)(2).

4. 131 S. Ct. 1259 (2011) (abrogating Massey v. FBI, 3 F.3d 620 (2d Cir. 1993); Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992); Kaganove v. EPA, 856 F.2d 884 (7th Cir. 1988);

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Supreme Court put an end to all conflicting postulations regarding the precise boundaries of Exemption 2 by holding that military explosive distance data does not qualify for agency withholding under the exemption.⁵ In its opinion, the Court declared that Exemption 2 encompasses records relating to employee relations and human resource issues but does not extend to more substantial internal matters whose disclosure would risk circumvention of the law.⁶ As a result of the Court's strict construction of the text of the exemption, Milner will likely have a significant impact on federal agencies that previously relied on Exemption 2 to withhold sensitive information not explicitly protected by one of the FOIA's other existing statutory exemptions.⁷

II. Factual Background

The story of Milner v. Department of the Navy⁸ begins in Puget Sound, Washington, where the United States Navy maintains Naval Magazine Indian Island (Indian Island). The Navy uses Indian Island to store and transport weapons, ammunition, and explosives.⁹ To aid in its operations on the island, the Navy utilizes Explosive Safety Quantity Distance (ESQD) information that prescribes "minimum separation distances" for explosives.¹⁰ ESQD information allows the Navy to organize facilities in a manner that would prevent chain reactions in the event of a detonation. ESQD information is also occasionally employed to illustrate the hypothetical effects of an explosion on the island.¹¹

In 2003 and 2004, Glen Milner, a resident of Puget Sound, submitted FOIA¹² requests to obtain ESQD information concerning Indian Island.¹³ Invoking FOIA's Exemption 2¹⁴ and Exemption 7,¹⁵ the

Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981)).

5. Id. at 1271.

6. Id.

7. See id. (acknowledging that its decision "upsets three decades of agency practice relying on [a broad interpretation of Exemption 2] and therefore may force considerable adjustments").

8. 131 S. Ct. 1259 (2011).

9. Id. at 1263.

10. Id. (internal quotation marks omitted).

11. Id.

12. 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110175, 121 Stat. 2524.

13. Milner, 131 S. Ct. at 1264.

14. 5 U.S.C. § 552(b)(2).

15. Id. § 552(b)(7)(F). Specifically, the Navy invoked Exemption 7(F), Milner, 131 S.

Ct. at 1264, which protects from mandatory disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such . . . records

2012] MILNER V. DEPARTMENT OF THE NAVY 1421

Navy denied Milner's request and refused to release the information, declaring that disclosure of ESQD calculations would endanger both the naval base and the surrounding community.¹⁶ Milner subsequently filed a suit in the United States District Court for the Western District of Washington to compel disclosure of the ESQD information.¹⁷ The district court granted summary judgment in favor of the Navy under Exemption 2 without addressing the question ofwhether the documents could also be exempt under Exemption 7.¹⁸

The United States Court ofAppeals for the Ninth Circuit affirmed the district court's grant of summary judgment.¹⁹ Relying on the "High 2"²⁰ interpretation of Exemption 2, developed by the United States Court of Appeals for the D.C. Circuit in Crooker v. Bureau ofAlcohol, Tobacco & Firearms,²¹ the Ninth Circuit held that personnel documents may be withheld when the materials are predominantly internal and disclosure presents a risk of circumvention of agency regulation.²² After determining that the ESQD information "is predominately used for the internal purpose of instructing agency personnel on how to do their jobs"²³ and that disclosure "would risk circumvention of the law" by "point[ing] out the best targets for those bent of wreaking havoc,"²⁴ the court of appeals ultimately concluded that the ESQD information was exempt from disclosure.²⁵

The United States Supreme Court granted certiorari to resolve a circuit split regarding the scope of Exemption 2.²⁶ Adopting a narrow view of Exemption 2, the Court held that ESQD information may not be withheld as material "related solely to the internal personnel rules and practices of an agency"²⁷ because the information concerns neither employee relations nor human resources issues.²⁸ In an 8-1 ruling, the

. . . could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F).

16. Milner, 131 S. Ct. at 1264.

17. Milner v. U.S. Dep't of the Navy, No. C06-01301-JCC, 2007 WL 3228049, at *1-2 (W.D. Wash. Oct. 30, 2007), rev'd, 131 S. Ct. 1259.

18. Id. at *8.

19. Milner v. U.S. Dep't of the Navy, 575 F.3d 959, 961, 972 (9th Cir. 2009).

20. See infra text accompanying notes 65-66.

21. 670 F.2d 1051 (1981), abrogated by Milner, 131 S. Ct. 1259.

22. Milner, 575 F.3d at 968.

23. Id.

24. Id. at 971.

25. Id. at 972.

26. Milner, 131 S. Ct. at 1264.

27. 5 U.S.C. § 552(b)(2).

28. Milner, 131 S. Ct. at 1271.

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Court reversed the judgment of the court of appeals and remanded the case for further proceedings.²⁹

III. Legal Background

A. The Freedom of Information Act

Initially enacted in 1966, the Freedom of Information Act (FOIA)³⁰ provides that all citizens have a judicially-enforceable right to access federal agency records unless those records are protected from public disclosure by one of nine statutory exemptions.³¹ At issue in Milner v. Department of the Navy³² is FOIA's Exemption 2,³³ which insulates from mandatory public disclosure records that are "related solely to the internal personnel rules and practices of an agency."³⁴ Over the years, the scope of this exemption has become the source of much debate: some courts have interpreted the exemption's language broadly, while others have taken a more narrow approach.³⁵

A great deal of the discussion surrounding the intended scope of these twelve words can be traced back to the legislative history of FOIA. Much confusion has arisen from the fact that the House³⁶ and Senate³⁷ reports, which accompanied the ratified act, differed significantly in their proffered illustrations of the types of information that Exemp-

29. Id.

30. 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110175, 121 Stat. 2524.

31. Id.

32. 131 S. Ct. 1259 (2011).

33. 5 U.S.C. § 552(b)(2).

34. Id.

35. Compare Massey v. FBI, 3 F.3d 620, 622 (2d Cir. 1993) (stating that Exemption 2 extends to information concerning "those rules and practices that affect the internal workings of an agency") (internal quotation marks omitted), Kaganove v. EPA, 856 F.2d 884 (7th Cir. 1988) (exempting the EPA Rating Plan from mandatory disclosure where an employer would reasonably expect the document to be internal and disclosure would frustrate the document's objective) and Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (holding that "if a document for which disclosure is sought meets the test of 'predominant internality,' and if disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material

from mandatory disclosure"), with Cox v. Levi, 592 F.2d 460, 462-63 (8th Cir. 1979)

(declaring that Exemption 2 protects only "housekeeping" matters); and Hawkes v. Internal Revenue Serv., 467 F.2d 787, 797 (6th Cir. 1972) (stating that the plain language of Exemption 2 relates only to "employee-employer type concerns").

36. H. Rep. No. 89-1497 (1966), reprinted in 1966 U.S.C.C.A.N. 2418.

37. S. Rep. No. 89-813 (1965).

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tion 2 would be employed to protect.³⁸ While the Senate Report declared that "[e]xamples of[internal personnel rules and practices ofan agency] may be rules as to personnel's use of parking facilities or regulations oflunch hours, statements ofpolicy as to sick leave, and the like,"³⁹ the House Report proffered a significantly different interpretation of the exemption's intended coverage. According to the House Report, Exemption 2 would cover "[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners" but would not extend to "all 'matters of internal management' such as employee relations and working conditions and routine administrative procedures."⁴⁰ Because Congress never reconciled the conflicting reports, the judiciary was left with the arduous task of interpreting the reach of Exemption 2's protection.

B. Rose and the Caveat Conundrum

The Supreme Court's first opportunity to evaluate the scope of Exemption 2 and its conflicting legislative history came in 1976 with Department of the Air Force v. Rose.⁴¹ In Rose, present and former student law review editors brought an action under FOIA to compel disclosure of case summaries from honor and ethics hearings at the United States Air Force Academy.⁴² The United States District Court for the Southern District ofNew York granted the Air Force's motion for summary judgment, holding...