Pendulum swings towards disclosure, but agencies may push back

Advocates of transparency and access to government-held information may have gotten more than they expected in the Supreme Court’s recent Milner v. Department of the Navy decision, as the high court rejected a long-running agency exemption as impermissibly overbroad. But as agencies try to decide which information may now be eligible for release, we are concerned that they may overcompensate by using other exemptions to withhold information, by pushing a hodgepodge of legal and political protections, or both.

For three decades, courts have let federal agencies withhold information if disclosure would provide significant assistance which enabled someone to violate agency regulations or the law (see Crooker v. Bureau of Alcohol, Tobacco and Firearms (D.C. Cir. 1981)).  So when the Supreme Court struck down this broad interpretation in Milner in March, and ruled that Exemption 2 of the Freedom of Information Act (FOIA) only applied narrowly to personnel practices and policies, agencies worried they could no longer protect information that should never see the light of day.

FOIA requests by community activist Glen Milner in Washington state were denied by the Navy — and then upheld by two lower courts — before the Supreme Court ruled that the Navy had overreached.  The high court ruled that naval ammunition dump maps did not qualify as information “related solely to the internal personnel rules and practices of an agency,” as defined in FOIA subsection (b)(2) (“Exemption 2”). (See SCOTUSblog for more about the case.)

The maps, known colloquially as “blast maps,” would have let local residents see whether an explosion (such as the WWII Port Chicago disaster) would affect their neighborhood — but the Navy argued that releasing the maps could inspire terrorists or saboteurs to attack.  The Navy relied on a thirty-year-old interpretation of Exemption 2 that allowed an agency to withhold information if it would significantly risk circumvention of agency regulation or the law.  The Court suggested agencies could seek relief from Congress to protect information from disclosure, or use other exemptions as appropriate.

That makes us wonder: What will agencies, Congress, and the Administration do? The Department of Justice recently issued guidance for agencies emphasizing alternative justifications for withholding information (listing five other FOIA exemptions with instructions).

The problem with the DOJ guidance is that it does not advise agencies that some information should be disclosed that previously was withheld under the overbroad anti-circumvention standard, an important implication from the Supreme Court’s ruling.  The high court essentially told agencies that the possibility that someone may use agency-disclosed information to circumvent the law is not itself a sufficient justification for withholding (under Exemption 2).

Despite DOJ’s guidance, agencies still have little actionable guidance for applying the high court’s ruling to each particular FOIA request.  This likely will lead agencies to protect more than they should, and may lead agencies to go to their respective oversight committees and plead for a statutory exemption under Exemption 3.  (And SGI has a long history of compiling and sorting these so-called “b(3) exemptions.” ProPublica even used our compilation and transformed it into an easy-to-use database.)

We also note that only two committees in Congress have jurisdiction over FOIA.  The remaining 43 committees are staffed with hard-working, intelligent people whose experience does not give them nearly as much familiarity with FOIA, and who are not equipped to push back as effectively when an agency claims it needs Congress to write a new FOIA statutory exemption into the law.

The reality is that government agencies have sometimes used Exemption 2 to withhold information that the public has a legitimate interest in knowing. If my community was within reach of exploding military ammunition, I’d want to know, just like Glen Milner and his neighbors. But when the Supreme Court ruled that FOIA required the military to tell Milner and his neighbors about the vulnerability of their community, it wasn’t long before the Department of Defense asked Congress for an open-ended exemption — and we aren’t sure if anything can stop other agencies from following the department’s footsteps up to Capitol Hill this summer.

For our part, we’d like to arm writers and reviewers of new exemptions to FOIA with a few questions to pose when crafting new carve-outs.

• Are there any existing exemptions that can be used?
• Can the agency justify the exemption publicly?
• Would disclosure create a foreseeable, articulable harm that is greater than the public benefit from such disclosure?
• Is the statute only as broad as necessary to identify the information qualifying for protection?
• Is there adequate public notice and debate about the provision?

We aren’t eager to see more b(3) provisions added to the list of over 240 known b(3) exemptions. We urge agencies, Congress, and the Administration to act cautiously and precisely as they move forward.