The U.S. Supreme Court, which only last week rejected a bid for personal privacy protection for corporate business information sought from federal regulators under the Freedom of Information Act, yesterday closed a far wider judge-created loophole in FOIA that's been operating for a generation—one which allowed the government to deny access to records whenever it believed that there was no conceivable public interest in them and an unacceptable risk of frustrating government activity or enabling crime.
The plaintiff in Milner v. Department of the Navy, a resident of Indian Island in Washington's Puget Sound, used his FOIA rights to ask the Navy to tell him what the estimated blast radius would be in a worst-case detonation of the munitions stored at a nearby weapons depot. Such information had already been made available at various times to local firefighters and others judged to be responsible handlers, but in this case the Navy told him that he was being denied the report because disclosure would threaten the security of the base and surrounding community. The FOIA exemption relied on for this refusal is one that on its face has nothing to do with such concerns. Exemption 2 permits withholding of information “related solely to the internal personnel rules and practices of an agency.”
But for the past 30 years the federal courts of appeals have ignored that seemingly confined scope of coverage and instead shoehorned into Exemption 2 authority for withholding a wide variety of information not addressed in other FOIA exemptions but where release would, in the government's judgment, cause trouble by aiding circumvention of agency functions or regulations, or enabling other mischief, for example:
• blueprints for Department of Agricul-ture buildings that store biological agents;
• keys to accessing National Aero-nautics and Space Administration computers;
• agency credit card numbers;
• Commodity FuturesTrading Commission guidelines for settling cases;
• “trigger figures” that alert the Department of Education to possible mismanagement of federal funds;
• vulnerability assessments of Commerce Department computer security plans
and so forth. These applications have come to be known as "High 2" protections, as distinct from "Low 2" protections sticking to the literal personnel domain. But Justice Elena Kagan, writing for the majority, noted that the real designations should have been "Non 2" and "2" respectively, since neither the plain meaning nor the legislative history of the exemption supported the lower courts' expansionist readings.
The "High 2" exemption fulfilled a useful function, however, in keeping out of the wrong hands certain information whose use was hard to imagine other than for thwarting legitimate regulation or creating easily foreseeable harm to the government or the private sector. Stretching a personnel records exemption to cover these concerns may have been beyond the proper role of the courts, but the problem the courts faced is the small handful of exemptions from disclosure Congress provided in enacting FOIA: just nine, which even when expanded by subcategories in Exemption 7 number only 15.
The California Public Records Act (CPRA), by contrast, has been subject to continual amendment creating new particularized express exemptions, and that list numbers in the dozens. But California lawmakers early recognized that situations would arise that they had never quite anticipated and yet where at least temporary and perhaps permanent withholding of information might be preferable to release. Goverment Code Section 6255 (a) states that upon a request for a record, the government must justify withholding it "by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record."
This public interest balancing test, known colloquially as the "catchall exemption" has been used as the government's wild card to deal with precisely the ad hoc concerns federal agencies have reached to "High 2" for: jail and prison blueprints, manuals for auditing medical providers for Medi-Cal fraud, prison inmate records whose disclosure could threaten a fair trial; and governors' travel schedules.
The problem with the balancing test in California is twofold. First, it has been used by the California Supreme Court to create what has become in practice an entirely new exemption never considered by the Legislature—the deliberative process privilege—which is continually invoked to conceal facts showing what forces and individuals influence official decision-making. Citizens might be forgiven for thinking that the exposure of such influences to public scrutiny is at the core of what the CPRA is all about.
The other problem is that records that could legitimately be withheld by citing Section 6255—vulnerability assessments of computer systems and of private industry infrastructure, for example—have nonetheless been given their own CPRA exemptions, steadily increasing the law's exemption bloat.
Nonetheless, the Congress might well consider enacting a situationally sensitive public interest balancing test to address High 2 concerns in the future. Meanwhile, Justice Kagan and her majority colleagues deserve a High 5 for relieving the courts of the authority to accommodate such contingent demands for withholding information until they are given express statutory to do so. The situation was getting out of control. In a footnote the court observed that "recent statistics raise a concern that federal agencies may too readily use Exemption 2 to refuse disclosure. According to amicus Public Citizen, 'while reliance on exemptions overall rose 83% from 1998 to 2006, reliance on Exemption 2 rose 344% during that same time period.'”