High Court Mulls Navy’s|Use of FOIA Exemption

     WASHINGTON (CN) – The Supreme Court on Wednesday examined the government’s claim that records on the location and blast ranges of explosives could be kept secret under a Freedom of Information Act exemption for internal personnel rules and practices.




     Washington resident Glen Scott Milner filed suit after the U.S. Navy refused to turn over documents related to weapons and explosives stored on an island in Puget Sound.
     The 9th Circuit ruled for the Navy, finding that the information was internal because it instructed agency personnel how to do their jobs.
     A few of the justices seemed concerned that the government was expanding the meaning of personnel in classifying the material as internal documents in order to claim a FOIA exemption.
     “If I said to you, what’s a personnel file, what would you say?” Justice Elena Kagan asked Assistant Solicitor General Anthony Yang, arguing for the Navy.
     Yang insisted that it depended on context.
     Kagan suggested that a personnel file usually referred to a human resources file, and Yang said yes, generally.
     “So why should there be any difference if you look at the term ‘personnel files and practices,’ that these are H.R. files and practices?” Kagan asked.
     Yang said while that was one interpretation, the government believed that personnel rules and practices included instructions to employees.
     “All the rules of an agency would be sucked in, wouldn’t they?” Justice Antonin Scalia asked.
     Yang said the personnel exemption applied to matters that governed all actions of agency personnel, except for those directing the public’s interactions with the agency.
     “I suppose the Office of Personnel Management has a pretty broad charter, then, on your theory of what the adjective means,” Scalia said.
     Chief Justice John Roberts asked why the documents weren’t classified in the first place if they posed such a danger.
     “It seems to me you’re asking us to do your job,” Roberts said, asking why the government did not just classify the documents “instead of coming to us and saying you should torture the language in FOIA.”
     Yang argued that the government’s reading was a fair interpretation of the exemption. He cited the D.C. Circuit’s 1981 decision in Crooker v. Bureau of Alcohol, Tobacco & Firearms, which says high-level information is exempt from disclosure if revealing it risks circumventing agency regulation.
     “[W]hat we are talking about is more than a map,” Yang said.
     The case is Milner v. Department of the Navy, no. 09-1162.

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