Another Supreme Court ruling in favor of government transparency

In Milner v. Department of the Navy, the Court pared a FOIA exemption that had expanded beyond its plain language in a series of federal court decisions going back three decades. Milner is the third case in this term in which the Court sided with an amicus brief joined by ASNE.

Threepeat? Well, ASNE may not be winning the cases themselves, but we certainly know how to pick the right horse. With the Supreme Court's ruling earlier this week in Milner v. Department of the Navy, ASNE has now been on the right side in three cases during the 2011 term, having already participated in winning amicus briefs in FCC v. AT&T and Snyder v. Phelps.

ASNE joined the Reporters Committee for Freedom of the Press, which drafted the Milner amicus, and about 20 other organizations in arguing that FOIA Exemption 2 has been spun wildly out of control in a series of court decisions over the past 30 years. Although the exemption clearly protects records relating to “internal personnel rules and practices,” it is now used by federal agencies to “withhold any documents that could potentially fall into the 'wrong hands' and be used to commit any number of speculative harms,” the brief argued.

The Supreme Court agreed. In an 8-1 vote, it held that the explosives maps and other data relating to a naval base in Washington State sought by Puget Sound resident Glen Scott Milner are not covered by FOIA Exemption 2. The opinion, written by the most Junior Justice Elena Kagan, reaffirms the view that FOIA exemptions are to be narrowly construed in order to effectuate the broad disclosure contemplated by the Act. With that in mind, the Court held that “personnel rules and practices” refer to employment or human resources matters within an agency. It explicitly rejected the ongoing expansion of Exemption 2, noting that the government has several other statutory exemptions to protect against the release of documents that could cause potential harm.

ASNE's attention now switches to a potential legislative response, as the Court decision also invited Congress to act if it feels these alternative exemptions are not sufficient. In fact, we have heard that legislation already is being drafted to overturn this decision and reinstate the broader protections. For the time being, however, we'll revel in this win. The next challenge to our perfect record in 2011 is the still-to-be released decision in the “violent video games” case of Entertainment Merchants Association v. Schwarzenegger.

Kevin M. Goldberg is legal counsel for ASNE and special counsel with Fletcher, Heald & Hildreth, PLC.