[JURIST] Obama administration official Melanie Ann Pustay [official profile] on Tuesday testified [prepared remarks] before the Senate Judiciary Committee [official website] to urge congressional officials to amend the Freedom of Information Act (FOIA) [text] to strengthen government’s ability to prevent disclosure of information related to critical infrastructure and cybersecurity. Pustay’s request comes just over a year after the US Supreme Court ruled 8-1 [JURIST report] in Milner v. Department of the Navy [opinion; Cornell LII backgrounder] that the government may not withhold certain information under FOIA, and her request seeks to “protect the vital interests that have been left exposed by the Supreme Court’s Milner opinion”. The Court ruled that under USC § 552(b)(2) (Exemption 2), which permits 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, which included information beyond personnel records such as infrastructure data and practices. In her remarks, Pustay said:
For three decades, agencies had protected under “High 2” homeland-security and critical infrastructure information, law enforcement procedures, audit criteria, and other information that, if disclosed, would risk circumvention of the law. Although it limited the scope of Exemption 2 to matters related solely to internal personnel rules and practices, the Supreme Court was sympathetic to the policy concerns raised by the government concerning the need to protect information when its disclosure risked harm. … The Court acknowledged that it might be necessary for the Government to “seek relief from Congress.”
Pustay is the Director of the Office of Information Policy of the US Department of Justice [official websites], the lead federal agency in the implementation of FOIA. Her remarks come during Sunshine Week [official website], a national initiative sponsored by news organizations and advocacy groups that supports open government and freedom of information.
Glen Scott Milner lived 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. In its opinion in