Caseflicks

Supreme Court of the United States • 2011

Milner v. Department of the Navy

179 L. Ed. 2d 268 | 2011 U.S. LEXIS 2101 | 131 S. Ct. 1259 | 562 U.S. 562 | 22 Fla. L. Weekly Fed. S 854 | 79 U.S.L.W. 4169

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Takeaway

In short, this case eliminated FOIA's judicially created "High 2" exemption: Exemption 2 protects only internal human-resources and employee-relations records, not sensitive operational information merely because agency personnel use it.

Background

Glen Milner, a Puget Sound resident, submitted FOIA requests in 2003 and 2004 seeking Explosive Safety Quantity Distance (ESQD) data and maps for Naval Magazine Indian Island in Washington. The Navy uses this information to determine safe separation distances for stored munitions and to model the effects of hypothetical explosions.

The Navy refused disclosure under FOIA Exemption 2, asserting that release could compromise the security of the base and surrounding community. It also invoked Exemption 7(F), but the lower courts did not decide that ground. The District Court granted summary judgment for the Navy, and the Ninth Circuit affirmed under the "High 2" doctrine, holding that the records were predominantly internal and that disclosure could help a terrorist identify especially damaging targets. The Supreme Court granted review to resolve a circuit split over Exemption 2's scope.

Issues

Issue #1

Whether FOIA Exemption 2 permits an agency to withhold explosives-safety maps and data that guide agency operations but do not concern employee relations or human resources.

Holding

No. Exemption 2 covers only records relating solely to an agency's internal personnel rules and practices—that is, employee-relations and human-resources matters—and does not cover the Navy's ESQD records.

Reasoning

The Court began with Exemption 2's text: records "related solely to the internal personnel rules and practices of an agency." In ordinary usage, "personnel" refers to human-resources subjects, including hiring, discipline, compensation, benefits, work rules, and employee relations. The word therefore limits the exemption to rules and practices about employees, rather than any internal matter used by employees.

FOIA's use of "personnel" in Exemption 6 reinforced that reading. There, "personnel and medical files" plainly means human-resources files. Reading the same term consistently in the nearby Exemption 2 supports treating "personnel rules and practices" as rules concerning conditions of federal employment.

The Court's earlier decision in Department of the Air Force v. Rose also supported this narrow understanding. Rose described matters such as parking, lunch hours, and sick leave, and explained that Exemption 2 principally relieves agencies from maintaining routine, internally significant employment information for public inspection.

The statutory purpose confirmed the textual reading. FOIA generally requires disclosure, and its exemptions must be narrowly construed. Congress replaced the broader APA exemption for matters relating solely to an agency's "internal management" because that language had enabled excessive withholding. A construction covering operational information far beyond human-resources matters would recreate the expansive withholding Congress sought to curb.

The requested ESQD materials did not concern workplace rules governing sailors or other employees. They described the physical effects of explosions and safe distances for explosives storage. Although those materials help Navy personnel perform their jobs, they are not, in ordinary language, personnel rules or practices.

Issue #2

Whether the Court should preserve the "High 2" doctrine, which allowed withholding of predominantly internal records whose disclosure would significantly risk circumvention of agency rules or laws.

Holding

No. The High 2 doctrine has no adequate basis in Exemption 2's text and cannot be sustained by legislative history, later amendments to FOIA, or lower-court practice.

Reasoning

The High 2 doctrine, developed by the D.C. Circuit in Crooker v. Bureau of Alcohol, Tobacco & Firearms, departed from the statutory language. It substituted "predominantly" for "solely," disregarded the limiting term "personnel," and added a circumvention-of-law requirement that Congress did not place in Exemption 2. The Court concluded that High 2 was effectively "Non 2," because it rewrote rather than interpreted the exemption.

Conflicting committee reports could not overcome clear statutory text. The House Report suggested that manuals for investigators could be withheld, while the Senate Report described routine personnel subjects such as parking and sick leave. Even assuming legislative history may resolve genuine ambiguity, it cannot create ambiguity where the enacted language is clear.

Congress's 1986 amendment to Exemption 7(E) did not ratify Crooker. Congress added a circumvention-of-law standard to a different exemption governing specified law-enforcement records, rather than amending Exemption 2. If High 2 already covered such internal law-enforcement materials, the Exemption 7(E) amendment would have done little work and would be largely superfluous.

The Court also rejected reliance on three decades of lower-court practice. Clear statutory language controls even when some courts have adopted a contrary rule. Moreover, the appellate decisions reflected a genuine circuit split rather than uniform acceptance of Crooker, and the Court would not disregard ordinary interpretive principles merely to follow a narrow majority of circuits.

Issue #3

Whether Exemption 2 alternatively encompasses all internal rules and practices that agency personnel follow while performing governmental functions.

Holding

No. That interpretation would read "personnel" out of the statute and turn Exemption 2 into an impermissibly broad, all-purpose withholding provision.

Reasoning

The Navy argued that "personnel rules and practices" naturally means internal rules and practices for personnel to follow. The Court disagreed: a personnel file is not every file an employee uses, and a personnel department is not every department staffed by employees. In each phrase, "personnel" means about employees, not merely for employees.

Under the Navy's reading, virtually every internal agency rule would qualify because agencies necessarily act through personnel. The modifier "personnel" would perform no limiting function, and Exemption 2 would effectively become an exemption for all internal management information.

That broad construction would also allow agencies to evade the carefully drawn limits of other FOIA exemptions. For example, agencies could withhold operational law-enforcement materials under Exemption 2 whenever those materials helped staff perform their duties, rather than satisfying Exemption 7's specific requirements. Such a result conflicts with FOIA's disclosure-oriented design and the rule that exemptions receive a narrow construction.

The Court acknowledged the Navy's substantial security concerns but explained that other avenues may protect sensitive information. Classified information may be withheld under Exemption 1; statutes may authorize withholding under Exemption 3; and Exemption 7(F) may protect law-enforcement information whose release could endanger life or physical safety. Whether Exemption 7(F) protects these particular records remained for the Ninth Circuit on remand.

Concurrences

Justice Alito

Reasoning

Justice Alito agreed that Exemption 2's text cannot support High 2. He wrote separately to emphasize that the Navy's alternative reliance on Exemption 7(F) remained available on remand and may provide a more appropriate route for protecting the ESQD records.

In his view, Exemption 7's threshold phrase, "compiled for law enforcement purposes," includes proactive security and crime-prevention work, not just the investigation or prosecution of completed offenses. Preventing terrorism, protecting facilities, and preserving public safety are ordinary law-enforcement functions.

Justice Alito also read "compiled" broadly. Information initially assembled for another purpose can fall within Exemption 7 if it is later gathered or used for law-enforcement security purposes, and the exemption does not require law enforcement to be the sole purpose of the compilation. If the Navy used the ESQD materials to identify and address security threats, they could satisfy Exemption 7's threshold and, given the danger of disclosure, fit comfortably within Exemption 7(F).

Dissents

Justice Breyer

Reasoning

Justice Breyer would have retained the High 2 rule under principles of settled interpretation. For roughly 30 years, Crooker had been followed or favorably cited by courts and relied on by federal agencies. Congress knew of Crooker when it later amended FOIA but left Exemption 2 unchanged, which he viewed as meaningful support for preserving the established construction.

He also found Crooker a reasonable interpretation of ambiguous language. In his view, the Senate Report's examples of routine personnel matters and the House Report's reference to investigative manuals could be reconciled as protecting internal staff information lacking legitimate public interest. Crooker appropriately required both predominant internality and a significant risk that disclosure would enable circumvention of agency regulations or statutes.

Justice Breyer favored a practical interpretation that balances public access against the Government's legitimate need to protect sensitive internal information. He believed High 2 had protected materials such as building plans, computer-security information, safe combinations, and security plans without seriously impairing FOIA's disclosure objectives.

The majority's alternatives, he argued, were incomplete. Exemption 7 may not cover sensitive materials not compiled for law-enforcement purposes, while classification can be slow, burdensome, and counterproductive to information sharing with state and local responders. Because Congress may not quickly enact a replacement protection, he would have left the longstanding High 2 doctrine in place.