ASNE joins important FOIA case in the U.S. Supreme Court

Milner v. U.S. Navy is the first high-court case in several years relating to the application of an exemption under the federal Freedom of Information Act. Although the issue it addresses is somewhat arcane, it has important implications for reporters and others who rely on FOIA to uncover information about the risks to local communities posed by government operations.

By Kevin Goldberg

RESTON, Va. — ASNE signed onto an amicus brief filed last week in Milner v. United States Dedistpartment of the Navy, the first U.S. Supreme Court case in several years relating to the application of a federal Freedom of Information Act exemption. Although the issue it addresses -- the often misunderstood and decidedly unsexy “Exemption 2” -- is somewhat arcane, it has important implications regarding FOIA.

Glenn Scott Milner is a member of the Ground Zero Center for Nonviolent Action, which filed FOIA requests seeking maps and other documents about Naval Magazine Indian Island in Puget Sound, Wash., which is used to store and transship munitions, weapons, weapon components, and explosives for the U.S. Government and allied forces.

Milner received almost 1000 pages of documents, but the Navy, which has responsibility for the island, withheld 81 others, specifically invoking Exemption 2, which covers records “related solely to the internal personnel rules and practices of an agency.” Milner sued in federal court. Both the United States District Court and United States Court of Appeals for the Ninth Circuit upheld the Navy's decision to withhold the documents.

The amicus, which was prepared by the Reporters Committee for Freedom of the Press, argues that Exemption 2 has been “contorted to such a disturbing extent that agencies are citing (it) to withhold any documents that could potentially fall into the 'wrong hands' and be used to commit any number of speculative harms". The brief also explains why the lower court rulings threaten the ability of the media and others to assess true risks in local communities.

The first section of the brief argues that current interpretations of Exemption 2 are extremely overbroad and must be corrected by the Supreme Court. As the brief notes, this expansive interpretation of Exemption 2 is keenly felt in the Milner case, as it prevents a member of the public from monitoring the Navy's handling of major explosives located in his local community. Milner simply wants his neighbors to understand the dangers posed by the Naval installation and to ensure that the Navy has minimized any risk to the community. But the Navy wants to hide its activities, and perhaps shortcomings, behind Exemption 2 while relying only on speculative fears, according to the brief.

The second section describes how the continual expansion of Exemption 2 impedes newsgathering, providing examples of instances where records now threatened by a broad interpretation of the exemption have previously been used to inform local communities.

Finally, the brief argues that Exemption 2 is often invoked to prevent access to federal records relating to nuclear facilities and biological agents, preventing local and national organizations from analyzing whether there is a risk to the local community posed by the operators of these facilities, rather than terrorists.

In addition to RCFP and ASNE, other organizations participating in the brief include the Associated Press, Bloomberg L.P., E.W. Scripps Co., Newspaper Association of America, Tribune Co. and The Washington Post.

Oral arguments in the case are scheduled for Dec. 1.

Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can find him blogging on CommLawBlog, published by his firm.

Milner Brief

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