Justices May Expand Govt. FOIA Disclosure

Talk to any activist or researcher who uses the Freedom of Information Act to obtain government documents, and sooner or later that person will lament, "It takes forever to get the documents."

[T]hose very words came from the mouth of Chief Justice John Roberts Jr. during arguments in an FOIA case, Milner v. Department of the Navy. It was a signal that the high court, which is usually stingy when it comes to the act, might actually be poised to hand a rare victory to someone who wants to expand the scope of government disclosure.

The case involves one of the specified exemptions to disclosure under the act — Exemption 2 — allowing government agencies to withhold documents "related solely to the internal personnel rules and practices of an agency." But ever since an appeals court ruling in 1981, agencies and lower courts have turned the exemption into a broader, catchall exemption. FOIA advocates say the broader interpretation is misused to justify turning down FOIA requests on the grounds that the requested information might allow someone to circumvent agency policies or commit some other kind of unwanted mischief.

It was that widening of Exemption 2 beyond its plain language that seemed to annoy several justices, most notably Roberts. "It seems to me you're asking us to do your job," Roberts told Anthony Yang, assistant to the solicitor general. "You are telling us how sensitive these [documents] are and therefore it would harm the national interest if they have to be disclosed. If that's true, you can classify them … instead of coming to us and saying you should torture the language in FOIA." Yang said classification would not be easily done.

Justice Anthony Kennedy also seemed dubious about the broad interpretation of the exemption, stating that if an agency promulgated rules about the placement of bombs, it is "hard for me to explain that it's just a personnel rule."

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Justices May Expand Govt. FOIA Disclosure