After the recent Supreme Court decision in MILNER v. DEPARTMENT OF THE NAVY I have been asked about the Freedom of Information Act: what it is, how it works, and what information is available. This is a brief look at FOIA. The Supreme Court in Milner used tools of statutory construction to resolve a circuit split about Exemption 2. In short, the court took a narrow view of what could be refused under the exemption.
FOIA took effect on July 5, 1967, and the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. Federal Court records are not within the jurisdiction of FOIA.
To get information under FOIA, you must make a “FOIA request.” This is a written request in which you describe the information you want, and the format you want it in, in as much detail as possible. Looking at data available from reports at the FOIA website can help you in your request process and help you narrow what you are seeking.
Here is where you can look at FOIA data. Select the type of report you are looking for, the department of interest, the fiscal year and a report is generated. This is an example of a report that shows DOJ requests under FOIA for 2010.
In an 8 to 1 decision the Supreme Court reverses a Navy denial of a Freedom of Information Act request. Justice Kagan delivered the opinion of the court. The Freedom of Information Act (FOIA), 5 U. S. C. §552, requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material. This case concerns the scope of Exemption 2, which protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency.” The Department of the Navy invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washington.
The Supreme Court held that Exemption 2 of FOIA does not apply and the Navy can't deny the request for maps and explosives data stored at a base in Washington State based on the reason. The court did direct the government to congress or perhaps other parts of FOIA if it believed national security concerns were involved.
Exemption 2 shields from compelled disclosure documents “related solely to the internal personnel rules and practices of an agency.” The court could not see how the Navy could fit this requested information under anything to do with personnel. The FOIA request at issue here arises from the Navy’s operations at Naval Magazine Indian Island, a base in Puget Sound, Washington. The Navy keeps weapons, ammunition, and explosives on the island. To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) information.
Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian Island. The Navy refused to release the data, stating that disclosure would threaten the security of the base and surrounding community. In support of its decision to withhold the records, the Navy invoked Exemption 2.
The district court granted summary judgment to the Navy, and the court of appeals affirmed. The court of appeals ruled that the ESQD information “is predominantly used for the internal purpose of instructing agency personnel on how to do their jobs.
The majority wrote: We doubt that even the “internal management” provision, which Congress thought allowed too much withholding, would have protected all information that guides employees in the discharge of their duties, including the explosives data and maps in this case. And perhaps needless to say, this reading of Exemption 2 violates the rule favoring narrow construction of FOIA exemptions.
The court went out of its way to calm security interest fears by stating: "although we cannot interpret Exemption 2 as the Government proposes, we recognize the strength of the Navy’s interest in protecting the ESQD data and maps and other similar information."
The court reversed the judgment of the court of appeals and remanded the case for further proceedings consistent with the opinion.
