Supreme Court Makes Major FOIA Exemption Change

Exemption 2 of the Freedom of Information Act, 5 U.S.C. § 552 (b)(2) (2006 & Supp. III 2009) has been clarified due to Milner v. Department of the Navy, in which Milner requested access to maps detailing safe distances from stored explosives. The Supreme Court has made an opinion stating that “High 2” exemptions will no longer apply in any situations. Exemption 2 is meant to protect information relating to personnel, including salary information, health care, training, retirement data and other issues relating to the personnel of a facility.  The “High 2” exemption is a loose interpretation of Exemption 2 established in 1981 in the Crooker v. Bureau if Alcohol, Tobacco & Firearms case. 

In Milner v. Department of the Navy, Justice Elena Kagan said: "Our construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . .)." While this determination was made, the Supreme Court did not order the release of the requested documents. The case was instead sent back to the Ninth Circuit to determine if any other FOIA exemptions could be applied to the information.

The Department of Justice’s release on the issue, found here: http://www.justice.gov/oip/foiapost/2011foiapost15.html, sheds more light on the situation, as well as offering guidance to FOIA offices to ensure that the proper exemptions are used in the proper manner.