Milner v. U.S. Dept. of the Navy

• Decision Date: 05 August 2009
• Docket Number: No. 07-36056.,07-36056.
• Citation: 575 F.3d 959
• Parties: Glen Scott MILNER, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE NAVY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

575 F.3d 959

Glen Scott MILNER, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE NAVY, Defendant-Appellee.

No. 07-36056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2009.

Filed August 5, 2009.

David S. Mann and Keith P. Scully, Seattle, WA, for the appellant.

Peter A. Winn, Assistant United States Attorney, Seattle, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CV-06-01301-JCC.

Before: WILLIAM A. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge:

This appeal highlights the tension between the public's right of access to government files under the Freedom of Information Act and the countervailing need to preserve sensitive information for efficient and effective government operations. Glen Scott Milner appeals the denial of a request he filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. He sought information that would identify the locations and potential blast ranges of explosive ordnance stored at Washington's Naval Magazine Indian Island ("NMII"). The district court granted summary judgment in favor of the Navy. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Indian Island is a small island strategically located in Puget Sound near the towns of Port Hadlock and Port Townsend, Washington. The island is used to store and transship munitions, weapons, weapon components, and explosives for the Navy, U.S. Joint Forces, Department of Homeland Security, and other federal agencies and allied forces. The Navy is responsible for all operations on NMII.

Magazine management and safety operations are conducted pursuant to a Navy manual entitled Ammunition and Explosives Ashore Safety Regulations for Handling, Storing, and Production Renovation and Shipping ("OP-5 manual"). Though the Navy considers the OP-5 manual to be restricted information, Milner managed to purchase one section of the manual on the Internet. The portion of the OP-5 manual in the record of this case states:

The purpose of this volume is to acquaint personnel engaged in operations involving ammunition, explosives, and other hazardous materials, and to prescribe standardized safety regulations for the production, renovation, care, handling, storage, preparation for shipment, and disposal of these items.

The OP-5 manual also calls for development of technical drawings and specifications, which "should be consulted for additional, detailed requirements."

The technical information developed pursuant to the OP-5 manual includes Explosive Safety Quantity Distance ("ESQD") data. The ESQD calculations measure the effects of an explosion at a particular location. The information is expressed either as a mathematical formula or as an arc map, where the center of the arc is the source of an explosion and the arc's periphery is the maximum area over which the force of the explosion would reach. The Navy uses this information to design and construct NMII ammunition storage facilities in compliance with the safety guidelines spelled out in OP-5. The ESQD arcs indicate the maximum amounts of explosives that should be stored in any one storage facility, and minimum distances that various explosives should be stored from one another. This aids the Navy in storing ordnance in such a way that the risk of chain reactions, or "sympathetic detonations," is minimized if one storage facility suffers an attack or accident. The ESQD arcs are "designed to be a long term planning tool for the Navy."

Milner is a Puget Sound resident and a member of the Ground Zero Center for Nonviolent Action, an organization dedicated to raising community awareness of the dangers of the Navy's activities. On December 7, 2003, and January 29, 2004, he submitted two FOIA requests to the Navy.¹ He requested three types of documents:

1. [A]ll documents on file regarding [ESQD] arcs or explosive handling zones at the ammunition depot at Indian Island. This would include all documents showing impacts or potential impacts of activities in the explosive handling zones to the ammunition depot and the surrounding areas;

2. [A]ll maps and diagrams of the ammunition depot at Indian Island which show ESQD arcs or explosive handling zones; and

3. [D]ocuments regarding any safety instructions or operating procedures for Navy or civilian maritime traffic within or near the explosive handling zones or ESQD arcs at the ammunition depot at Indian Island.

The Navy identified 17 document packages totaling about 1,000 pages that met these parameters. The Navy compiled a thorough index of the relevant documents and disclosed most of them to Milner. It withheld only 81 documents, claiming that their disclosure could threaten the security of NMII and the surrounding community.

Milner filed suit under FOIA to compel disclosure of the remaining documents related to ESQD information. Commander George Whitbred, Commanding Officer of NMII, and other officers filed detailed affidavits discussing the nature and uses of the ESQD information. The commander's affidavit specified his concern that the information, if disclosed, could be used to plan an attack or disrupt operations on NMII. Both parties moved for summary judgment. The Navy argued the documents were exempt from disclosure under 5 U.S.C. §§ 552(b)(2) ("Exemption 2") and (b)(7)(f) ("Exemption 7"). The district court granted summary judgment in favor of the Navy under Exemption 2. Milner v. U.S. Dep't of Navy, No. C06-1301-JCC, 2007 WL 3228049 (W.D.Wash. Oct.30, 2007). It did not reach the question whether the documents would also be exempt under Exemption 7. Milner timely appealed.

II

We apply a two-step standard of review to summary judgment in FOIA cases. "The court first determines under a de novo standard whether an adequate factual basis exists to support the district court's decisions. If an adequate factual basis exists, then the district court's conclusions of fact are reviewed for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo." Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir.2008) (internal citations omitted). Both parties agree that an adequate factual basis exists to support the district court's decision. They dispute only the applicability of the exemptions from disclosure.

An agency bears the burden of proving it may withhold documents under a FOIA exemption. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). It may meet this burden by submitting affidavits showing that the information falls within the claimed exemption. Minier v. CIA, 88 F.3d 796, 800 (9th Cir.1996). "In evaluating a claim for exemption, a district court must accord substantial weight to [agency] affidavits, provided the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of [agency] bad faith." Id. (internal quotations omitted).

III

A

FOIA reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813-89, at 3 (1965)). An agency may withhold a document, or portions thereof, only if the material falls into one of the nine statutory exemptions delineated by Congress in § 552(b). Id. at 361, 96 S.Ct. 1592. These nine exemptions are "explicitly exclusive." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting Adm'r FAA v. Robertson, 422 U.S. 255, 262, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975)). The delineated exemptions "are to be interpreted narrowly." Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir.2009) (quotation omitted).

Our concern in this case is the scope of Exemption 2. That section exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). There are two categories of information that may fall within Exemption 2's ambit— "Low 2" and "High 2." Low 2 materials include rules and practices regarding mundane employment matters such as parking facilities, lunch hours, and sick leave, which are not of "genuine and significant public interest." See Rose, 425 U.S. at 363, 96 S.Ct. 1592 (citing S.Rep. No. 813-89, at 8 (1965)); id. at 369, 96 S.Ct. 1592; Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir.1980).

The High 2 exemption protects more sensitive government information.² This category applies to "internal personnel rules and practices," disclosure of which "may risk circumvention of agency regulation." Rose, 425 U.S. at 369, 96 S.Ct. 1592; see, e.g., Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C.Cir.1992) (holding an agency's litigation strategy "does qualify as `high 2' material because its disclosure would risk circumvention of statutes or agency regulations"). Only the High 2 category is at issue here.

B

Information may be exempted as High 2 if it (1) fits within the statutory language and (2) would present a risk of circumvention if disclosed. See Morley v. CIA, 508 F.3d 1108, 1124 (D.C.Cir.2007) (citing Schwaner v. Dep't of Air Force, 898 F.2d 793, 794 (D.C.Cir.1990)). The essential question in this case is what standard we employ to determine whether the requested information relates sufficiently to the "internal personnel rules and practices" of the agency, as required by the statute. The Navy argues we should apply the "predominantly internal" standard employed by the D.C. Circuit. Milner argues our prior caselaw forecloses this approach, and that our inquiry is limited to whether the information at issue is "law enforcement material."

In Hardy v. Bureau of Alcohol, Tobacco & Firearms, we addressed the...