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Milner v. Department of the Navy

Close Date: 03/07/2011
Topic(s): Government Transparency – FOIA
Date Of Involvement: 09/07/2010
Docket: 09-1163

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Exemption 2 of the Freedom of Information Act (FOIA) exempts from mandatory disclosure records that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Some circuits have applied this exemption to records that are not related solely to internal employment matters under a "High 2" Exemption, holding that Exemption 2 applies to "predominantly internal" records whose disclosure "would present a risk of circumvention of agency regulation." In this Supreme Court amicus brief, filed on behalf of Public Citizen, the American Civil Liberties Union, the ACLU of Washington, Citizens for Responsibility and Ethics in Washington, the Electronic Frontier Foundation, the National Security Archive, and OpentheGovernment.org, we argue that there is no High 2 exemption, and that even if there were, it would be limited to procedural manuals and guidelines the release of which would allow the subjects of regulation to circumvent that regulation.

On March 7, 2011 the Supreme Court reversed the Ninth Circuit decision and rejected the argument that Exemption 2 covered all internal rules and practices that guide employees in discharging their duties.