9th Circuit Backtracks on Weapons Data Ruling

     (CN) – After being upbraided by the Supreme Court in March, the 9th Circuit reversed its ruling that said the U.S. Navy did not have to disclose the locations and potential blast ranges of military weapons stored on a small island in Puget Sound.




     The initial August 2009 decision from a divided three-judge panel in Seattle affirmed a District Court ruling.
     Both findings came as a blow to Glen Scott Milner, a lifelong Puget Sound resident and member of the Ground Zero Center for Nonviolent Action, who filed a Freedom of Information Act request seeking information on weapons stored at Washington’s Naval Magazine Indian Island. Though the Navy oversees all operations on the island, the weapons are also used by U.S. Joint Forces, the Department of Homeland Security, and other federal agencies and allied forces.
     Milner managed to buy a section of the Navy’s online operations manual – information that the Navy considers “restricted,” the ruling states. He then sought documents listing the types of weapons and explosives kept on the island and their “arc maps,” along with safety instructions and operating procedures.
     The Navy withheld 81 of the 1,000 files that met his parameters, and Milner filed suit in order to view the remaining documents.
     After the lower courts upheld that position, the government told the Supreme Court it could withhold the requested materials under exemption 2 of the Freedom of Information Act, which protects internal agency personnel rules and practices from disclosure.
     The high court rejected that view in March, saying Congress meant to limit the reach of that exemption.
     The data that the Navy withheld is known as Explosive Safety Quantity Distance (ESQD), which Navy uses in the storage and transportation of munitions.
     ESQD information helps the military branch design and construct storage facilities to prevent chain reactions in case of detonation. The ESQD calculations are often incorporated into specialized maps depicting the effects of hypothetical explosions.
     “These data and maps calculate and visually portray the magnitude of hypothetical detonations,” Justice Elena Kagan wrote for a six-member majority. “By no stretch of the imagination do they relate to ‘personnel rules and practices,’ as that term is most naturally understood.
      “They concern the physical rules governing explosives, not the workplace rules governing sailors; they address the handling of dangerous materials, not the treatment of employees.”
     While reliance on exemptions overall rose 83 percent from 1998 to 2006, reliance on Exemption 2 soared 344 percent over the same time period, according to the opinion.
     On remand, the 9th Circuit ruled to reverse the District Court’s decision and remand “for further proceedings on an open record consistent with the Supreme Court’s opinion.”

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