Supreme Court to possibly crack down on FOIA failures

Mike Riggs Contributor
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Here’s what you won’t hear in the White House’s aggressive castigation of Julian Assange and Wikileaks: The Australian activist is doing the U.S. government’s job better than the U.S. government. The success of Wikileaks is a harsh reminder that while a small group of rogue hackers can destabilize international diplomatic relations, the federal government still cannot — or in some cases, refuses to — release non-classified documents to the public upon request.

In March, the Associated Press reported that FOIA exemptions rose during Obama’s first year in office. In October, we reported on a survey that found many federal workers tasked with responding to FOIA requests don’t know how to do their jobs, and that their bosses don’t either. More recently, the Electronic Frontier Foundation uncovered arbitrary and conflicting redactions in identical sets of FOIA documents.

Now even the Supreme Court seems to think that the Freedom of Information Act is in need of a major overhaul: During a hearing last week, every justice but one was “surprisingly hostile” to a oft-used government argument for withholding information.

Milner v. Department of the Navy, which the Supreme Court heard at the beginning of this month, is a direct challenge to one of the federal government’s most popular excuses for withholding information: exemption 2. The definition of this exemption is specific enough for a troglodyte to understand: Agencies can deny requests for information “related solely to the internal personnel rules and practices of an agency.”

Here’s the full rule:

(b)(2) EXEMPTION 2 Internal Personnel Rules and Practices. This exemption exempts from mandatory disclosure records “related solely to the internal personnel rules and practices of an agency.” Courts have interpreted the exemption to encompass two distinct categories of information:

(a) internal matters of a relatively trivial nature–sometimes referred to as “low2” information; and

(b) more substantial internal matters, the disclosure of which would risk circumvention of a legal requirement–sometimes referred to as “high 2” information.

According to an AP report released in March of this year, use of this exemption by federal employees has skyrocketed under Obama. While there are many exemptions to choose from, exemption 2’s definition has been expanded over the last several decades by countless federal employees, and upheld by the typically liberal 9th Circuit Court.

Milner could change all that. Petitioner Glen Scott Milner is an anti-war activist who lives on Indian Island in Washington State. Also inhabiting Indian Island are Navy storage facilities containing non-nuclear explosives. In 2003 and 2004, Milner submitted a FOIA request in order to learn the blast radius of the storage facilities in case an accident occurred. According to filings by Milner’s attorney, the Navy volunteers this information to police and other emergency responders on the island, but not usually with civilians. The Navy denied Milner’s requests by citing exemption 2.

As the case has worked its way through the courts, Milner’s argument has remained unsophisticated and plain. He says that exemption 2 should only apply to “routine internal employee relations matters that are of no public interest.” Incidentally, Milner’s interpretation of exemption 2 reflects the provision’s actual language and original intent. The government’s argument, which is that the Supreme Court should not “disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies,” does not.

The highest court in the land apparently feels the same way.

According to the First Amendment Center’s Tony Mauro, Chief Justice John Roberts told Anthony Yang, assistant to the solicitor general, “It seems to me you’re asking us to do your job,” adding, “You are telling us how sensitive these [documents] are and therefore it would harm the national interest if they have to be disclosed. If that’s true, you can classify them … instead of coming to us and saying you should torture the language in FOIA.”

Their exchange ended with Roberts telling Yang that it takes “forever” for agencies to respond to FOIA requests. Yang’s response: “We are not usually complying with the statute’s 20-day turnaround. That’s correct.”