Milner v. Dep't of the Navy

Decision Date07 March 2011
Docket NumberNo. 09–1163.,09–1163.
Citation179 L.Ed.2d 268,131 S.Ct. 1259,562 U.S. 562
Parties Glen Scott MILNER, Petitioner, v. DEPARTMENT OF THE NAVY.
CourtU.S. Supreme Court

David S. Mann, Seattle, WA, for Petitioner.

Anthony A. Yang, for Respondent.

David S. Mann, Michael W. Gendler, Brendan W. Donckers Gendler & Mann, LLP, Seattle, WA, for Petitioner.

Paul L. Oostburg Sanz, J. Page Turney, Judy A. Conlow, Washington, D.C., Neal Kumar Katyal, Acting Solicitor General, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Leonard Schaitman, Howard S. Scher, Peter A. Winn, Attorneys Department of Justice Washington, D.C., for Respondent.

Justice KAGAN delivered the opinion of the Court.

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material. This case concerns the scope of Exemption 2, which protects from disclosure material that is "related solely to the internal personnel rules and practices of an agency." § 552(b)(2). Respondent Department of the Navy (Navy or Government) invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washington State. We hold that Exemption 2 does not stretch so far.


Congress enacted FOIA to overhaul the public-disclosure section of the Administrative Procedure Act (APA), 5 U.S.C. § 1002 (1964 ed.). That section of the APA "was plagued with vague phrases" and gradually became more "a withholding statute than a disclosure statute." EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Congress intended FOIA to "permit access to official information long shielded unnecessarily from public view." Id., at 80, 93 S.Ct. 827. FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. These exemptions are "explicitly made exclusive," id., at 79, 93 S.Ct. 827, and must be "narrowly construed," FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).

At issue here is Exemption 2, which shields from compelled disclosure documents "related solely to the internal personnel rules and practices of an agency." § 552(b)(2). Congress enacted Exemption 2 to replace the APA's exemption for "any matter relating solely to the internal management of an agency," 5 U.S.C. § 1002 (1964 ed.). Believing that the "sweep" of the phrase "internal management" had led to excessive withholding, Congress drafted Exemption 2 "to have a narrower reach." Department of Air Force v. Rose, 425 U.S. 352, 362–363, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

We considered the extent of that reach in Department of Air Force v. Rose . There, we rejected the Government's invocation of Exemption 2 to withhold case summaries of honor and ethics hearings at the United States Air Force Academy. The exemption, we suggested, primarily targets material concerning employee relations or human resources: "use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like." Id., at 363, 96 S.Ct. 1592 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 8 (1965) (hereinafter S.Rep.)); see Rose, 425 U.S., at 367, 96 S.Ct. 1592."[T]he general thrust" of Exemption 2, we explained, "is simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection." Id., at 369, 96 S.Ct. 1592. We concluded that the case summaries did not fall within the exemption because they "d[id] not concern only routine matters" of "merely internal significance." Id., at 370, 96 S.Ct. 1592. But we stated a possible caveat to our interpretation of Exemption 2: That understanding of the provision's coverage governed, we wrote, "at least where the situation is not one where disclosure may risk circumvention of agency regulation." Id., at 369, 96 S.Ct. 1592.

In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (1981), the D.C. Circuit converted this caveat into a new definition of Exemption 2's scope. Crooker approved the use of Exemption 2 to shield a manual designed to train Government agents in law enforcement surveillance techniques. The D.C. Circuit noted that it previously had understood Exemption 2 to "refe[r] only to ‘pay, pensions, vacations, hours of work, lunch hours, parking, etc.’ " Id., at 1056 (quoting Jordan v. Department of Justice, 591 F.2d 753, 763 (1978) ). But the court now thought Exemption 2 should also cover any "predominantly internal" materials,1 Crooker, 670 F.2d, at 1056–1057, whose disclosure would "significantly ris[k] circumvention of agency regulations or statutes," id., at 1074. This construction of Exemption 2, the court reasoned, flowed from FOIA's "overall design," its legislative history, "and even common sense," because Congress could not have meant to "enac[t] a statute whose provisions undermined ... the effectiveness of law enforcement agencies." Ibid.

In the ensuing years, three Courts of Appeals adopted the D.C. Circuit's interpretation of Exemption 2. See 575 F.3d 959, 965 (C.A.9 2009) (case below); Massey v. FBI, 3 F.3d 620, 622 (C.A.2 1993) ; Kaganove v. EPA, 856 F.2d 884, 889 (C.A.7 1988).2 And that interpretation spawned a new terminology: Courts applying the Crooker approach now refer to the "Low 2" exemption when discussing materials concerning human resources and employee relations, and to the "High 2" exemption when assessing records whose disclosure would risk circumvention of the law. See, e.g., 575 F.3d, at 963 ; Schiller v. NLRB, 964 F.2d 1205, 1208 (C.A.D.C.1992). Congress, as well, took notice of the D.C. Circuit's decision, borrowing language from Crooker to amend Exemption 7(E) when next enacting revisions to FOIA. The amended version of Exemption 7(E) shields certain "records or information compiled for law enforcement purposes" if their disclosure "could reasonably be expected to risk circumvention of the law." § 552(b)(7)(E) ; see Freedom of Information Reform Act of 1986, § 1802(a), 100 Stat. 3207–49.


The FOIA request at issue here arises from the Navy's operations at Naval Magazine Indian Island, a base in Puget Sound, Washington. The Navy keeps weapons, ammunition, and explosives on the island. To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) information. 575 F.3d, at 962. ESQD information prescribes "minimum separation distances" for explosives and helps the Navy design and construct storage facilities to prevent chain reactions in case of detonation. Ibid. The ESQD calculations are often incorporated into specialized maps depicting the effects of hypothetical explosions. See, e.g., App. 52.

In 2003 and 2004, petitioner Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian Island. 575 F.3d, at 962. The Navy refused to release the data, stating that disclosure would threaten the security of the base and surrounding community. In support of its decision to withhold the records, the Navy invoked Exemption 2. Ibid.3

The District Court granted summary judgment to the Navy, and the Court of Appeals affirmed, relying on the High 2 interpretation developed in Crooker . 575 F.3d, at 963. The Court of Appeals explained that the ESQD information "is predominantly used for the internal purpose of instructing agency personnel on how to do their jobs." Id., at 968. And disclosure of the material, the court determined, "would risk circumvention of the law" by "point[ing] out the best targets for those bent on wreaking havoc"—for example, "[a] terrorist who wished to hit the most damaging target."

Id., at 971. The ESQD information, the court concluded, therefore qualified for a High 2 exemption. 575 F.3d, at 971.

We granted certiorari in light of the Circuit split respecting Exemption 2's meaning, 561 U.S. ––––, 130 S.Ct. 3505, 177 L.Ed.2d 1089 (2010), and we now reverse.


Our consideration of Exemption 2's scope starts with its text. See, e.g., Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985) ("Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose"). Judicial decisions since FOIA's enactment have analyzed and reanalyzed the meaning of the exemption. But comparatively little attention has focused on the provision's 12 simple words: "related solely to the internal personnel rules and practices of an agency."

The key word in that dozen—the one that most clearly marks the provision's boundaries—is "personnel." When used as an adjective, as it is here to modify "rules and practices," that term refers to human resources matters. "Personnel," in this common parlance, means "the selection, placement, and training of employees and ... the formulation of policies, procedures, and relations with [or involving] employees or their representatives." Webster's Third New International Dictionary 1687 (1966) (hereinafter Webster's). So, for example, a "personnel department" is "the department of a business firm that deals with problems affecting the employees of the firm and that usually interviews applicants for jobs." Random House Dictionary 1075 (1966) (hereinafter Random House). "Personnel management" is similarly "the phase of management concerned with the engagement and effective utilization of manpower to obtain optimum efficiency of human resources." Webster's 1687. And a "personnel agency" is "an agency for placing employable persons in jobs; employment agency." Random House 1075.

FOIA itself provides an additional example in Exemption 6. See Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ("A term appearing in several places in a...

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