Western Washington Is On The Map: U.S. Supreme Court Orders Release of Indian Island Navy Ammunition Maps Under FOIA
The latest public records decision from the U.S. Supreme Court has put Western Washington on the map. The Court held 8-1 that Navy maps showing ammunition stockpiles at Indian Island (in Jefferson County, near Port Townsend) could not be withheld from disclosure under Exemption 2 of the Freedom of Information Act (“FOIA”). Exemption 2 allows an entity to withhold records related to the internal personnel rules and practices of an agency.
In Milner v. Department of the Navy, the Navy argued that release of the maps would threaten public safety; the maps depict distances where damage could result from hypothetical explosions in buildings where weapons, ammunition and explosives are stored. But as reported by the Kitsap Sun, public safety is the very reason the maps were requested by local activist Glen Milner, who wanted information about whether his community might be endangered by the ammunition supply.
The crux of the case was whether Exemption 2 can be used to block the release of the type of documents in question. According to some of the amici curiae briefs before the Court (primarily news organizations and the ACLU), Exemption 2 had, over the years, become a catchall exemption for the government. “High 2” (as the exemption had become known) had expanded beyond its plain language through administrative interpretations and lower court rulings, allowing the government to withhold documents that were not clearly connected to an agency’s personnel rules or internal practices. Instead, based on a 1981 D.C. Circuit Court opinion, the “High 2” exemption had come to shield any internal documents whose release might risk circumvention of agency functions.
The Supreme Court held in favor of disclosure, finding that the maps were not “personnel rules or practices” under the plain language of Exemption 2, thus rejecting the 30-year old D.C. Circuit interpretation. Writing for the Court, Justice Kagan stated that the past tolerance of the expansive “High 2” reading of the statute “pos[ed] the risk that FOIA would become less a disclosure than a ‘withholding statute’”. In a lone dissent, Justice Breyer stated that he would “let sleeping dogs lie”, noting that the courts have supported the broad use of Exemption 2 for the past 30 years.
The Court also noted that the Navy could rely on other FOIA exemptions to limit disclosure of the maps, such as the national security exemption (Exemption 1) or the law enforcement exemption (Exemption 7(f)) which allows an agency to withhold records that "could reasonably be expected to endanger the life or physical safety of any individual." But these issues were not decided by the District Court.
This case is likely to have a substantial impact on disclosure requests by prohibiting all agencies’ continued use of the “High 2” exemption to support expansive refusals to disclose records. The Supreme Court has reminded us that exemptions to FOIA are narrowly construed, and all government agencies should think carefully about the narrow applicability of exemptions when asked for public records.