SCOTUS FOIA Case – Cert Petition Available

Yesterday, I posted about the Supreme Court taking a FOIA case from the Ninth Circuit, here. I have received the Petition for Certiorari from counsel and it is available here. Mr. Milner requested an EQSD map for the Naval Magazine at Indian Island. The EQSD is a map which shows the blast radius for explosives and shows how far an explosion will "expand" should one of the munitions detonate. At issue is an exemption from the Freedom of Information Act which protects from disclosure documents relating to internal personnel rules and practices of an agency. 5 U.S.C. § 552(b) of the Freedom of Information Act ("Exemption 2") provides in pertinent part: (b) This section [providing for public access to government documents] does not apply to matters that are: (2) related solely to the internal personnel rules and practices of an agency. Courts have created two categories of documents using this exemption: "High 2" and "Low 2". The Supreme Court upheld the use of this exemption for documents that were trivial in nature. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). The Ninth Circuit (and other courts of appeal) have created a "High 2" exemption for FOIA that allows documents that could circumvent an "agency regulation" to be withheld. This petition seeks to undo the High 2 exemption from FOIA. This will be very interesting in terms of the balance between national security and transparent democratic government. We shall also see the balancing of a textual approach to statutory interpretation and national security interests of the nation.

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