News Flash – the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound. FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway). My post on the Ninth Circuit's decision here. The Question Presented is: Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others. Briefly summarizing the Ninth Circuit decision: The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound. The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act. Plaintiff brought suit and the Navy obtained summary judgment from the trial court. The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are "related solely to the internal personnel rules and practices of an agency.") This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive). The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there. The Court found that to disclose the records posed a risk that the records would be used to circumvent the law. Therefore, the records were not required to be disclosed under FOIA. I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received. The government's brief in opposition is here. The government's question presented was a little different: Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.
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