Focusing public attention on emerging privacy and civil liberties issues

EPIC - Milner v. Dept. of Navy

Concerning the Propriety of the "High 2 Exemption" - a Legal Doctrine Used by Federal Agencies to Prevent Disclosure of Public Records

Latest News

  • EPIC Urges Court to Order Release of 2,000 Airport Body Scanner Images: EPIC asked a federal court in Washington, DC to reconsider its earlier decision allowing the Department of Homeland Security to keep secret 2,000 airport body scanner images in EPIC's Freedom of Information Act lawsuit. The Court relied on a legal theory in its decision, "Exemption High b(2)," that was recently struck down by the Supreme Court in Navy v. Milner. In Milner, the Court held that FOIA exemption 2 only applies to records concerning employee relations and human resources issues. Milner overturns previous lower court decisions that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. EPIC argues in its motion that the Department of Homeland Security is unlawfully withholding information about the airport scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy and EPIC v. DHS - Body Scanners. (Mar. 25, 2011)
  • Supreme Court Affirms Open Government, Limits Exemptions: In Navy v. Milner, the Supreme Court held that the Freedom of Information Act’s “Exemption 2” is limited to employee relations and human resources issues. The decision overturns previous decisions by lower courts that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. The Court stated that this practice contravened Congress’s intent. The Court emphasized that Congress intended all nine FOIA exemptions to be construed narrowly. EPIC is currently challenging the use of Exemption 2 in its lawsuit to force disclosure of records concerning full body scanners at airport checkpoints. The Court's decision in Navy v. Milner demonstrates that the Department of Homeland Security is improperly withholding information about the scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy, and EPIC: OPEN Government. (Mar. 7, 2011)
  • Public Interest Groups Urge Supreme Court to Curtail Government Secrecy: Public Citizen filed a "friend of the court" brief in Milner v. Navy, a Freedom of Information Act case that will be heard by the Supreme Court. Seven groups signed the brief, which urges the Court to abolish the "High 2 Exemption" - a legal claim used by federal agencies to prevent disclosure of public records. The case will determine whether federal agencies can continue to assert "High 2" to block disclosure of records that could otherwise be made available to the public. EPIC is currently challenging the Department of Homeland Security's use of "High 2" in EPIC v. DHS, a FOIA lawsuit concerning airport body scanners. For more, see EPIC: Open Government and EPIC: Milner v. Navy. (Sep. 15, 2010)

Question Presented

On appeal from the Ninth Circuit:

(1) Does the judge-made "High 2" FOIA exemption exceed the scope of federal statutory provisions that prevent public access to specific government records?

Background

Glen Scott Milner filed a Freedom of Information Act (“FOIA”) request seeking exploding arc maps that measure the potential radius of an explosion's impact if one were to occur on a specific Navy base in Washington State. When the Navy refused his request, Milner took the case to federal court. The trial court and the Ninth Circuit both agreed with the Navy, holding that FOIA's Exemption 2 permits the Navy to withhold the maps in question.

The statutory language of FOIA Exemption 2 only permits withholding records concerning "personnel rule[s] or internal practice[s]” of federal agencies like the Navy. The Ninth Circuit, however, borrowed a concept from the DC Circuit called the "High 2" FOIA Exemption. "High 2" is a judicially created test. FOIA exemptions must be narrowly construed based on the specific language of the Act itself. However, the "High 2" exemption expands the ability of agencies to withhold documents beyond the statutory language. The Supreme Court has never ruled on the propriety of the "High 2" exemption, and other Circuit courts do not recognize the legitimacy of the doctrine.

The Ninth Circuit further expanded the "High 2" exemption from its traditional formulation after hearing Milner's argument. Milner argued that the maps were neither personnel rules nor internal practices. The maps were unclassified and the Navy shared them with local law-enforcement agencies and other first responders. In response, the Ninth Circuit expanded the "High 2" test to "shield[] those personnel materials which are predominantly internal and disclosure of which would present a risk of circumvention of agency regulation" (italics added). It then held that the maps in question were "predominantly internal."

EPIC's Interest

EPIC's FOIA lawsuit against the Department of Homeland Security and the Transportation Security Agency aims to inform the public debate over controversial body scanners at airport checkpoints. The Supreme Court's upcoming decision in Milner regarding the "High 2" FOIA exemption will influence the fate of EPIC's case. If the High Court legitimizes the "High 2" approach, the effect will subvert the public's right to discover essential facts about important government programs.

When DHS first introduced body scanner technology at airports, security experts warned of virtual "strip searches." The TSA responded with denials, promising the public that body scanners would not be used for mandatory, primary screening, and that images produced by the machines could not be stored, transmitted, or printed. The TSA also stated that an algorithm would be applied to mask sensitive portions of each image. Now, the TSA refuses to disclose 2,000 stored body scanner images. The images depict unfiltered, three-dimensional pictures of individuals' unclothed bodies. The TSA also removed assurances about protective algorithms from its website.

Like the exploding arc maps Glen Scott Milner is requesting, the 2,000 body scanner images EPIC is seeking in litigation are neither personnel rules nor internal records. The TSA collected images of individuals that now reside on government computers. EPIC's FOIA lawsuit also seeks airport screeners' training documents to understand the protocols for conducting body scans.

"High 2" impedes the disclosure of such essential materials, effectively preventing the public from scrutinizing material facts in a critical national policy debate. EPIC urges the Supreme Court to review the "friend of the court" brief filed by Public Citizen and others in the case, and to consider the wider impact on Open Government interests that this decision promises to effect.

Legal Documents

Supreme Court

Certiorari Stage Documents (PDFs)

Ninth Circuit Court of Appeals (PDF)

News Reports

Resources