U.S. Issues New Guidance in Wake of Court Decision

27 May 2011

By Harry A. Hammitt

Hammitt publishes Access Reports, a biweekly newsletter.   This article is reprinted with pemission from his latest issue.

The Office of Information Policy at the Justice Department issued agency guidance May 10 on the Supreme Court’s ruling in Milner v. Dept of Navy, 131 S.Ct. 1259 (2011), both explaining the decision and suggesting ways in which agencies might deal with its impact.

In Milner, the Court wiped away 30 years of case law dealing with the circumvention prong of Exemption 2, commonly referred to as “High 2” and concluded that Exemption 2 only covered records that were “related solely to the internal personnel rules and practices of an agency,” what had become known as “Low 2.” In her opinion for the Court, Justice Elena Kagan focused on the definition of “personnel,” which she found meant “the selection, placement, and training of employees and. . .the formulation of policies, procedures, and relations with [or involving] employees or their representatives.”

In the context of Exemption 2, that meant the exemption specifically covered “rules and practices dealing with employee relations or human resources.” In Milner, the Supreme Court rejected the circumvention prong developed by the D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051 (D.C. Cir.1981), because it found nothing in the plain language of Exemption 2 to support the expansion.

The government argued that the House Report lent support to an expansive reading of the exemption. But Kagan pointed out that the Senate Report described Exemption 2 as covering only personnel matters and noted that the Court had previously accepted the Senate Report as more reliable in its earlier Exemption 2 ruling in Dept of Air Force v. Rose, 425 U.S. 352 (1976). She explained that “when presented, on one hand, with clear statutory language and, on the other, with dueling committee reports, we must choose the language.”

The government also argued that the inclusion of the “risk of circumvention” language in the amended version of Exemption 7(E) (investigative methods and techniques) in 1986 indicated Congress had ratified the Crooker standard. However, Kagan observed that if Congress intended to ratify the Crooker standard as being broadly applicable to records whose disclosure would risk circumvention of law or regulation it would have been superfluous to specifically amend Exemption 7(E) to include the standard.

 The government’s final argument was to ask the Court to view Exemption 2 as a clean slate and adopt the circumvention standard as covering rules for personnel. The Court refused, noting instead that Exemption 2’s language concerned rules about personnel.

OIP Assessment

OIP first pointed out that the thrust of the Milner decision was that records covered by Exemption 2 had to be directly related to personnel. The guidance noted that “this requirement of Exemption 2, which the Supreme Court held is the key requirement for the exemption, significantly limits its scope.

For the three decades preceding Milner, agencies focused on whether information was ‘predominantly internal’—a term significantly broader than ‘personnel rule or practice.’ Now, after Milner, agencies can only consider Exemption 2 for matters that relate to an agency’s personnel rules or practices.” Further, OIP explained, the Court identified two additional requirements: that the record “relate solely” to agency personnel practices and rules—meaning “exclusively or only”—and that they be “internal”—meaning “the agency must typically keep the records to itself for its own use.”

Looking to Rose for Guidance

To better understand what this meant as a practical matter, the guidance turned to the Court’s holding in Rose, where it found that records concerning cheating at the Air Force Academy were not covered by Exemption 2 even if they qualified as personnel rules and practices because there was a significant public interest in the records.

The guidance pointed out that “in assessing whether information relates ‘solely’ to the ‘internal’ personnel rules and practices of an agency, it is necessary for agencies to assess whether there is a ‘genuine and significant public interest in disclosure.’ When there is a genuine and significant public interest in disclosure, the material falls outside of Exemption 2 as that interest would preclude it from satisfying the requirements of Exemption 2 that it relate ‘solely’ to the ‘internal’ personnel rules and practices of the agency.”

The OIP guidance understates the holding in Rose, however. While the cadet cheating records were clearly of public interest, Rose should not be read as requiring a significant public interest, but, rather, any public interest. Once an interest has been shown in personnel records as reflected in FOIA requests, the agency has no particular reason to withhold them.

Relevance of Holder Memo

OIP reminds agencies that the Holder Memo should be taken into consideration whenever an agency determines information is subject to Exemption 2. The guidance notes that “the opportunities to make discretionary disclosures of material technically protected by the newly defined Exemption 2 remain as viable as ever.” The guidance adds that “certainly there will be many examples of matters relating solely to internal personnel rules and practices where there is no foreseeable harm from release as there is no real burden involved in assembling and maintaining the information. Indeed, it is often more burdensome to withhold information than it is to release it.”

Because the circumvention prong of Exemption 2 had expanded so dramatically, particularly after 9/11, the Court’s conclusion that it had no basis in law suddenly robbed agencies of an important withholding tool.

The OIP guidance spends time looking at the possibility that other exemptions could be used to protect some of the information that no longer qualifies under Exemption 2.

Two obvious candidates are Exemption 1 (national security) and Exemption 3 (other statutes), but both have their limitations. Exemption 1 applies only to information that qualifies for classification, while Exemption 3 requires a specific prohibition in another statute which is usually targeted for a specific category of information.

OIP suggests that plans for a power plant or critical infrastructure information could be considered confidential commercial information under Exemption 4 (confidential business information) and, if submitted voluntarily, could qualify for protection under the Critical Mass standard. Some types of information might also qualify under the impairment of agency program effectiveness prong. Some information that implicates privacy concerns could also be withheld under Exemption 6 (invasion of personal privacy).

Exemption 7

However, OIP admits that currently Exemption 7 (law enforcement records) provides the most obvious protection for agencies who qualify under the exemption.

In litigation that has been decided since Milner, agencies like the FBI and Homeland Security have relied on 7(E) to withhold records they had previously claimed were protected by Exemption 2. But because it is still part of the Milner case on remand and Justice Samuel Alito specifically endorsed it in his concurrence in Milner, Exemption 7(F) (safety of an individual) is currently the most likely replacement for Exemption 2.

The guidance notes that “if the record satisfies the threshold of Exemption 7, including compilation for a preventive law enforcement purpose, it can potentially be withheld pursuant to Exemption 7(F).” But the only case supporting this argument is Living Rivers v. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003), finding that because the Bureau of Reclamation was responsible for the security of certain dams, an inundation scenario showing what might happen downstream if the dam was breached, was considered protected by 7(F).

However, as OIP notes, that holding was rejected by the Second Circuit in the only appellate consideration of 7(F), ACLU v. Dept of Defense, 543 F.3d 59 (2nd Cir. 2008), in which the court pointed out that the word “individual” as used in 7(F) “may be flexible, but it is not vacuous.” The Second Circuit decision was mooted out by subsequent events, but still is the most thorough explication of Exemption 7(F). The chances that the government will nevertheless run with 7(F) were enhanced by Alito’s concurrence in Milner where he spelled out the legal arguments he would make and invited the government to develop them.

Gaping Hole

The disappearance of the circumvention prong of Exemption 2 has indeed left a gaping hole in coverage for records that may well need protection. As a result, this is almost certainly an issue that Congress will have to take up at some point, sooner rather than later.

While there were immediate calls after the Milner decision for Congress to consider an Exemption 10, further reflection suggests to me that Exemption 2 probably can be amended in such a way as to restore a narrower version of the circumvention standard that protects records that legitimately need protection, but does not have the potential to expand to the extent that it had in the 30 years since Crooker.

 [The fifth edition of “Litigation Under the Federal Open Government Laws, 2010,” published by EPIC through a partnership with Access Reports and the James Madison Project, is now available. The book, edited by Harry Hammitt, Ginger McCall, Marc Rotenberg, John Verdi and Mark Zaid is a comprehensive discussion of the FOIA and includes chapters on the Privacy Act, Sunshine Act, and Federal Advisory Committee Act as well. With a foreword by Sen. Patrick Leahy, the 2010 edition includes the Obama and Holder FOIA memoranda, the Open Government Directive, and the new Executive Order on Classification. Cost of the book is $75; postage is $7 within the U.S. The book can be purchased from Access Reports.]

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