The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 8-1 in Milner v. Department of the Navy [Cornell LII backgrounder; JURIST report] that the government may not withhold certain information under the Freedom of Information Act (FOIA) [text]. The issue was whether 5 USC § 552(b)(2) (Exemption 2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others. Petitioner Glen Scott Milner filed two FOIA requests for information about a US Navy magazine near his home, but the Navy withheld certain documents under Exemption 2. The US Court of Appeals for the Ninth Circuit found [opinion, PDF] in favor of the Navy, ruling that Exemption 2 encompasses two exemptionsthe "Low 2" exemption, which covers ordinary employment matters, and the "High 2" exemption, which covers materials whose "disclosure may risk circumvention of agency regulation." Reversing the Ninth Circuit, Justice Elena Kagan wrote for the majority:
Exemption 2, consistent with the plain meaning of theterm "personnel rules and practices," encompasses onlyrecords relating to issues of employee relations and human resources. The explosives maps and data requested heredo not qualify for withholding under that exemption. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistentwith this opinion.Justice Samuel Alito filed a concurring opinion. Justice Stephen Breyer filed a dissent.
Milner lives near Indian Island, a small island in the state of Washington that houses a naval magazine in which the Navy maintains non-nuclear explosives. In 2003 and 2004, Milner submitted two FOIA requests to the navy, seeking, among other things, explosive safety quantity distance (ESQD) information for the naval magazine. The Navy disclosed most of the documents that Milner requested but withheld the ESQD information on the grounds that it could threaten the naval magazine and surrounding community's safety and security.