U.S. Court Rejects Navy Use of Personnel Exemption

7 March 2011

The United States Supreme Court March 7 said the government could not stretch the personnel exemption to withhold Navy data and maps predicting  the extent of potential damage from the explosion of an ammunition dump.

The justices voted 8-1 to overturn an appeals court ruling that had supported the Navy’s decision not to release to the information under a Freedom of Information Act provision that deals with federal agency “personnel rules and practices.”

Justice Elena Kagan said in the opinion that the exemption covers “issues of employee relations and human resources.” The case was Milner v. Department of the Navy and concerned maps of an ammunition dump near Port Townsend in western Washington.

Justice Stephen Breyer dissented.

Further Analysis

Among those examining the decision was Tony Mauro, for the First Amendment Center, and the Reporters Committee for the Freedom of the Press.

Another analysis of the decision was posted by the Collaboration on Government Secrecy:

Today, in one of the most consequential FOIA decisions in recent memory, the Supreme Court decided Milner v. Department of the Navy by ruling 8-1 that the government’s longstanding use of Exemption 2 for “anti-circumvention” protection is too much of a “stretch” from that exemption’s actual language, and it must immediately cease.

In a majority opinion authored by Justice Kagan, the Court firmly rejected the concept of “High 2” that was established by D.C. Circuit in its en banc Crooker v. BATF decision in 1981 and has been used by federal agencies to withhold increasing amounts of security-related information in the three decades since then, especially since 9/11.

Justice Kagan’s opinion closely analyzed the language of Exemption 2 — “related solely to the personnel rules and practices of an agency” — and concluded that “the Crooker interpretation . . . suffers from a patent flaw: It is disconnected from Exemption 2’s text.” She reasoned that the word “personnel” means “employee relations or human resources,” that it “by no stretch of the imagination” relates to the Navy maps of explosives safety distances at issue, and that Crooker had established “anti-circumvention” protection “with no basis or referent in Exemption 2’s language.”

In sum, she declared, “High 2 is better labeled ‘Non 2’ (and Low 2 . . . just 2).” (Note: “Low 2” should be regarded as a “dead letter,” and not invoked, under the current “foreseeable harm” standard of the Holder FOIA Memorandum.) Significantly, she also explicitly relied on “the rule favoring narrow construction of FOIA exemptions.”

And as for the consequences of the Court’s decision, she stated: “[W]e acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force considerable adjustments. . . . All we hold today is that Congress has not enacted the FOIA exemption the Government desires. We leave to Congress, as is appropriate, the question whether it should do so.”

Justice Alito filed a concurring opinion suggesting the availability of Exemption 7(F) for “security information,” and Justice Breyer in dissent warned that “legislative action takes time”; he stated his preference, in the case of Crooker and “High 2,” to “let sleeping legal dogs lie.”

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