MILNER v. DEPARTMENT OF THE NAVY

OPINION OF THE COURT
MILNER V. DEPARTMENT OF NAVY
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-1163

GLEN SCOTT MILNER, PETITIONER v. DEPARTMENT OF THE NAVY

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 7, 2011]

   Justice Kagan delivered the opinion of the Court.

   The Freedom of Information Act (FOIA), 5 U. S. C. §552, requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material. This case concerns the scope of Exemption 2, which protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency.” §552(b)(2). Respondent Department of the Navy (Navy or Government) invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washington State. We hold that Exemption 2 does not stretch so far.

I

   Congress enacted FOIA to overhaul the public-disclosure section of the Administrative Procedure Act (APA), 5 U. S. C. §1002 (1964 ed.). That section of the APA “was plagued with vague phrases” and gradually became more “a withholding statute than a disclosure statute.” EPA v. Mink, 410 U. S. 73, 79 (1973). Congress intended FOIA to “permit access to official information long shielded unnecessarily from public view.” Id., at 80. FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. These exemptions are “explicitly made exclusive,” id., at 79, and must be “narrowly construed,” FBI v. Abramson, 456 U. S. 615, 630 (1982).

   At issue here is Exemption 2, which shields from compelled disclosure documents “related solely to the internal personnel rules and practices of an agency.” §552(b)(2). Congress enacted Exemption 2 to replace the APA’s exemption for “any matter relating solely to the internal management of an agency,” 5 U. S. C. §1002 (1964 ed.). Believing that the “sweep” of the phrase “internal management” had led to excessive withholding, Congress drafted Exemption 2 “to have a narrower reach.” Department of Air Force v. Rose, 425 U. S. 352, 362–363 (1976).

   We considered the extent of that reach in Department of Air Force v. Rose. There, we rejected the Government’s invocation of Exemption 2 to withhold case summaries of honor and ethics hearings at the United States Air Force Academy. The exemption, we suggested, primarily targets material concerning employee relations or human resources: “use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.” Id., at 363 (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 8 (1965) (hereinafter S. Rep.)); see Rose, 425 U. S., at 367. “[T]he general thrust” of Exemption 2, we explained, “is simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection.” Id., at 369. We concluded that the case summaries did not fall within the exemption because they “d[id] not concern only routine matters” of “merely internal significance.” Id., at 370. But we stated a possible caveat to our interpretation of Exemption 2: That understanding of the provision’s coverage governed, we wrote, “at least where the situation is not one where disclosure may risk circumvention of agency regulation.” Id., at 369.

   In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F. 2d 1051 (1981), the D. C. Circuit converted this caveat into a new definition of Exemption 2’s scope. Crooker approved the use of Exemption 2 to shield a manual designed to train Government agents in law enforcement surveillance techniques. The D. C. Circuit noted that it previously had understood Exemption 2 to “refe[r] only to ‘pay, pensions, vacations, hours of work, lunch hours, parking, etc.’ ” Id., at 1056 (quoting Jordan v. Department of Justice, 591 F. 2d 753, 763 (1978)). But the court now thought Exemption 2 should also cover any “predominantly internal” materials,[Footnote 1] Crooker, 670 F. 2d, at 1056–1057, whose disclosure would “significantly ris[k] circumvention of agency regulations or statutes,” id., at 1074. This construction of Exemption 2, the court reasoned, flowed from FOIA’s “overall design,” its legislative history, “and even common sense,” because Congress could not have meant to “enac[t] a statute whose provisions undermined … the effectiveness of law enforcement agencies.” Ibid.

   In the ensuing years, three Courts of Appeals adopted the D. C. Circuit’s interpretation of Exemption 2. See 575 F. 3d 959, 965 (CA9 2009) (case below); Massey v. FBI, 3 F. 3d 620, 622 (CA2 1993); Kaganove v. EPA, 856 F. 2d 884, 889 (CA7 1988).[Footnote 2] And that interpretation spawned a new terminology: Courts applying the Crooker approach now refer to the “Low 2” exemption when discussing materials concerning human resources and employee relations, and to the “High 2” exemption when assessing records whose disclosure would risk circumvention of the law. See, e.g., 575 F. 3d, at 963; Schiller v. NLRB, 964 F. 2d 1205, 1208 (CADC 1992). Congress, as well, took notice of the D. C. Circuit’s decision, borrowing language from Crooker to amend Exemption 7(E) when next enacting revisions to FOIA. The amended version of Exemption 7(E) shields certain “records or information compiled for law enforcement purposes” if their disclosure “could reasonably be expected to risk circumvention of the law.” §552(b)(7)(E); see Freedom of Information Reform Act of 1986, §1802(a), 100 Stat. 3207–49.

II

   The FOIA request at issue here arises from the Navy’s operations at Naval Magazine Indian Island, a base in Puget Sound, Washington. The Navy keeps weapons, ammunition, and explosives on the island. To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) information. 575 F. 3d, at 962. ESQD information prescribes “minimum separation distances” for explosives and helps the Navy design and construct storage facilities to prevent chain reactions in case of detonation. Ibid. The ESQD calculations are often incorporated into specialized maps depicting the effects of hypothetical explosions. See, e.g., App. 52.

   In 2003 and 2004, petitioner Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian Island. 575 F. 3d, at 962. The Navy refused to release the data, stating that disclosure would threaten the security of the base and surrounding community. In support of its decision to withhold the records, the Navy invoked Exemption 2. Ibid.[Footnote 3]

   The District Court granted summary judgment to the Navy, and the Court of Appeals affirmed, relying on the High 2 interpretation developed in Crooker. 575 F. 3d, at 963. The Court of Appeals explained that the ESQD information “is predominantly used for the internal purpose of instructing agency personnel on how to do their jobs.” Id., at 968. And disclosure of the material, the court determined, “would risk circumvention of the law” by “point[ing] out the best targets for those bent on wreaking havoc”—for example, “[a] terrorist who wished to hit the most damaging target.” Id., at 971. The ESQD information, the court concluded, therefore qualified for a High 2 exemption. 575 F. 3d, at 971.

   We granted certiorari in light of the Circuit split respecting Exemption 2’s meaning, 561 U. S. ___ (2010), and we now reverse.

III

   Our consideration of Exemption 2’s scope starts with its text. See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose”). Judicial decisions since FOIA’s enactment have analyzed and reanalyzed the meaning of the exemption. But comparatively little attention has focused on the provision’s 12 simple words: “related solely to the internal personnel rules and practices of an agency.”

   The key word in that dozen—the one that most clearly marks the provision’s boundaries—is “personnel.” When used as an adjective, as it is here to modify “rules and practices,” that term refers to human resources matters. “Personnel,” in this common parlance, means “the selection, placement, and training of employees and … the formulation of policies, procedures, and relations with [or involving] employees or their representatives.” Webster’s Third New International Dictionary 1687 (1966) (hereinafter Webster’s). So, for example, a “personnel department” is “the department of a business firm that deals with problems affecting the employees of the firm and that usually interviews applicants for jobs.” Random House Dictionary 1075 (1966) (hereinafter Random House). “Personnel management” is similarly “the phase of management concerned with the engagement and effective utilization of manpower to obtain optimum efficiency of human resources.” Webster’s 1687. And a “personnel agency” is “an agency for placing employable persons in jobs; employment agency.” Random House 1075.

   FOIA itself provides an additional example in Exemption 6. See Ratzlaf v. United States, 510 U. S. 135, 143 (1994) (“A term appearing in several places in a statutory text is generally read the same way each time it appears”). That exemption, just a few short paragraphs down from Exemption 2, protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” §552(b)(6). Here too, the statute uses the term “personnel” as a modifier meaning “human resources.” See Tr. of Oral Arg. 32 (“[The Court:] It’s [an] H. R. file, right? [The Government:] That’s generally true”). As we recognized in Rose, “the common and congressional meaning of … ‘personnel file’ ” is the file “showing, for example, where [an employee] was born, the names of his parents, where he has lived from time to time, his … school records, results of examinations, [and] evaluations of his work performance.” 425 U. S., at 377. It is the file typically maintained in the human resources office—otherwise known (to recall an example offered above) as the “personnel department.” Ibid.

   Exemption 2 uses “personnel” in the exact same way. An agency’s “personnel rules and practices” are its rules and practices dealing with employee relations or human resources. The D. C. Circuit, in a pre-Crooker decision, gave as examples “matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc.” Jordan, 591 F. 2d, at 763; see supra, at 3. That “etc.” is important; we doubt any court could know enough about the Federal Government’s operations to formulate a comprehensive list. But all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.[Footnote 4] Courts in practice have had little difficulty identifying the records that qualify for withholding under this reading: They are what now commonly fall within the Low 2 exemption. Our construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all, see infra, at 10–14).

   The statute’s purpose reinforces this understanding of the exemption. We have often noted “the Act’s goal of broad disclosure” and insisted that the exemptions be “given a narrow compass.” Department of Justice v. Tax Analysts, 492 U. S. 136, 151 (1989); see Department of Interior v. Klamath Water Users Protective Assn., 532 U. S. 1, 7–8 (2001).[Footnote 5] This practice of “constru[ing] FOIA exemptions narrowly,” Department of Justice v. Landano, 508 U. S. 165, 181 (1993), stands on especially firm footing with respect to Exemption 2. As described earlier, Congress worded that provision to hem in the prior APA exemption for “any matter relating solely to the internal management of an agency,” which agencies had used to prevent access to masses of documents. See Rose, 425 U. S., at 362. We would ill-serve Congress’s purpose by construing Exemption 2 to reauthorize the expansive withholding that Congress wanted to halt. Our reading instead gives the exemption the “narrower reach” Congress intended, id., at 363, through the simple device of confining the provision’s meaning to its words.

   The Government resists giving “personnel” its plain meaning on the ground that Congress, when drafting Exemption 2, considered but chose not to enact language exempting “internal employment rules and practices.” Brief for Respondent 30–34, and n. 11. This drafting history, the Navy maintains, proves that Congress did not wish “to limit the Exemption to employment-related matters,” id., at 31, even if the adjective “personnel” conveys that meaning in other contexts, id., at 41. But we think the Navy’s evidence insufficient: The scant history concerning this word change as easily supports the inference that Congress merely swapped one synonym for another. Cf. Mead Corp. v. Tilley, 490 U. S. 714, 723 (1989) (noting with respect to the “unexplained disappearance of one word from an unenacted bill” that “mute intermediate legislative maneuvers are not reliable” aids to statutory interpretation (internal quotation marks omitted)). Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language.

   Exemption 2, as we have construed it, does not reach the ESQD information at issue here. These data and maps calculate and visually portray the magnitude of hypothetical detonations. By no stretch of imagination do they relate to “personnel rules and practices,” as that term is most naturally understood. They concern the physical rules governing explosives, not the workplace rules governing sailors; they address the handling of dangerous materials, not the treatment of employees. The Navy therefore may not use Exemption 2, interpreted in accord with its plain meaning to cover human resources matters, to prevent disclosure of the requested maps and data.

IV

   The Government offers two alternative readings of Exemption 2 to support withholding the ESQD information. We cannot square either with the statute.

A

   The Navy first encourages us to adopt the construction of Exemption 2 pioneered by Crooker, which shields material not only if it meets the criteria set out above (Low 2), but also if it is “predominant[ly] interna[l]” and its “disclosure would significantly risk[] circumvention of federal agency functions” (High 2). Brief for Respondent 41 (internal quotation marks omitted). The dissent, too, favors this reading of the statute. Post, at 1. But the Crooker interpretation, as already suggested, suffers from a patent flaw: It is disconnected from Exemption 2’s text. The High 2 test (in addition to substituting the word “predominantly” for “solely,” see n. 1, supra) ignores the plain meaning of the adjective “personnel,” see supra, at 6–9, and adopts a circumvention requirement with no basis or referent in Exemption 2’s language. Indeed, the only way to arrive at High 2 is by taking a red pen to the statute—“cutting out some” words and “pasting in others” until little of the actual provision remains. Elliott v. Department of Agriculture, 596 F. 3d 842, 845 (CADC 2010). Because this is so, High 2 is better labeled “Non 2” (and Low 2 … just 2).

   In support of its text-light approach to the statute, the Government relies primarily on legislative history, placing particular emphasis on the House Report concerning FOIA. See Brief for Respondent 33–38. A statement in that Report buttresses the High 2 understanding of the exemption and, indeed, specifically rejects the Low 2 construction. According to the Report: “Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure [under Exemption 2], but this exemption would not cover … employee relations and working conditions and routine administrative procedures.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). But the Senate Report says exactly the opposite, explaining in support of a Low 2 interpretation that the phrase “internal personnel rules and practices of an agency” means “rules as to personnel’s use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.” S. Rep., at 8.[Footnote 6] In Rose, we gave reasons for thinking the Senate Report the more reliable of the two. See 425 U. S., at 366. But the more fundamental point is what we said before: Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it. See supra, at 9; Wong Yang Sung v. McGrath, 339 U. S. 33, 49 (1950) (declining to consult legislative history when that “history is more conflicting than the text is ambiguous”). When presented, on the one hand, with clear statutory language and, on the other, with dueling committee reports, we must choose the language.

   The Government also advances, in support of Crooker’s High 2 approach, an argument based on subsequent legislative action. Congress, the Government notes, amended Exemption 7(E) in 1986 to cover law enforcement records whose production “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reason-ably be expected to risk circumvention of the law.” §552(b)(7)(E). That amendment, the Government contends, codified Crooker’s “circumvention of the law” standard and, in so doing, ratified Crooker’s holding. Brief for Respondent 42–43. The dissent likewise counts as significant that Congress “t[ook] note” of Crooker in revising FOIA. Post, at 9; see post, at 2.

   But the Government and the dissent neglect the key feature of the 1986 amendment: Congress modified not Exemption 2 (the subject of Crooker), but instead Exemption 7(E). And the Crooker construction of Exemption 2 renders Exemption 7(E) superfluous and so deprives that amendment of any effect. See, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (noting canon that statutes should be read to avoid making any provision “superfluous, void, or insignificant” (internal quotation marks omitted)). We cannot think of any document eligible for withholding under Exemption 7(E) that the High 2 reading does not capture: The circumvention standard is the same, and the law enforcement records listed in Exemption 7(E) are “predominantly internal.” So if Congress had agreed with Crooker’s reading of Exemption 2, it would have had no reason to alter Exemption 7(E). In that event, Congress would either have left the statute alone (on the theory that Crooker would do the necessary work) or would have amended Exemption 2 specifically to ratify Crooker. The decision instead to amend Exemption 7(E) suggests that Congress approved the circumvention standard only as to law enforcement materials, and not as to the wider set of records High 2 covers. Perhaps this legislative action does not show that Congress affirmatively disagreed with Crooker; maybe Congress was agnostic about whether the circumvention standard should apply to other records. But one thing is clear: The 1986 amendment does not ratify, approve, or otherwise signal agreement with Crooker’s interpretation of Exemption 2. This argument therefore cannot save the High 2 construction.

   The dissent offers one last reason to embrace High 2, and indeed stakes most of its wager on this argument. Crooker, the dissent asserts, “has been consistently relied upon and followed for 30 years” by other lower courts. Post, at 9; see post, at 1–2. But this claim, too, trips at the starting gate. It would be immaterial even if true, because we have no warrant to ignore clear statutory language on the ground that other courts have done so. And in any event, it is not true. Prior to Crooker, three Circuits adopted the reading of Exemption 2 we think right, and they have not changed their minds. See n. 2, supra.[Footnote 7] Since Crooker, three other Circuits have accepted the High 2 reading. See supra, at 3. One Circuit has reserved judgment on the High 2-Low 2 debate. See Audubon Society v. Forest Serv., 104 F. 3d 1201, 1203–1204 (CA10 1997). And the rest have not considered the matter. (No one should think Crooker has been extensively discussed or debated in the Courts of Appeals. In the past three decades, Crooker’s analysis of Exemption 2 has been cited a sum total of five times in federal appellate decisions outside the D. C. Circuit—on average, once every six years.) The result is a 4 to 3 split among the Circuits.[Footnote 8] We will not flout all usual rules of statutory interpretation to take the side of the bare majority.

B

   Presumably because Crooker so departs from Exemption 2’s language, the Government also offers another construction, which it says we might adopt “on a clean slate,” “based on the plain text … alone.” Brief for Respondent 15. On this reading, the exemption “encompasses records concerning an agency’s internal rules and practices for its personnel to follow in the discharge of their governmental functions.” Id., at 20; see also id., at 13–14 (Exemption 2 “applies generally to matters concerning internal rules and practices to guide agency personnel in performing their duties”). According to the Government, this interpretation makes sense because “the phrase ‘personnel rules and practices of an agency’ is logically understood to mean an agency’s rules and practices for its personnel.” Id., at 20 (emphasis added).

   But the purported logic in the Government’s definition eludes us. We would not say, in ordinary parlance, that a “personnel file” is any file an employee uses, or that a “personnel department” is any department in which an employee serves. No more would we say that a “personnel rule or practice” is any rule or practice that assists an employee in doing her job. The use of the term “personnel” in each of these phrases connotes not that the file or department or practice/rule is for personnel, but rather that the file or department or practice/rule is about personnel—i.e., that it relates to employee relations or human resources. This case well illustrates the point. The records requested, as earlier noted, are explosives data and maps showing the distances that potential blasts travel. This information no doubt assists Navy personnel in storing munitions. But that is not to say that the data and maps relate to “personnel rules and practices.” No one staring at these charts of explosions and using ordinary language would describe them in this manner.

   Indeed, the Government’s “clean slate” construction reaches such documents only by stripping the word “personnel” of any real meaning. Under this interpretation, an agency’s “internal personnel rules and practices” appears to mean all its internal rules and practices. That is because agencies necessarily operate through personnel, and so all their internal rules and practices are for personnel. The modifier “personnel,” then, does no modifying work; it does not limit the class of internal rules and practices that Exemption 2 covers. What is most naturally viewed as the provision’s key word—the term that ought to define its scope—does nothing more than state the truism that in an agency it is “personnel” who follow internal rules and practices.

   And this odd reading would produce a sweeping exemption, posing the risk that FOIA would become less a disclosure than “a withholding statute.” Mink, 410 U. S., at 79. Many documents an agency generates in some way aid employees in carrying out their responsibilities. If Exemption 2 were to reach all these records, it would tend to engulf other FOIA exemptions, rendering ineffective the limitations Congress placed on their application. Exemption 7, for example, shields records compiled for law enforcement purposes, but only if one of six specified criteria is met. §552(b)(7). Yet on the Government’s view, an agency could bypass these restrictions by invoking Exemption 2 whenever law enforcement records guide personnel in performing their duties. Indeed, an agency could use Exemption 2 as an all-purpose back-up provision to withhold sensitive records that do not fall within any of FOIA’s more targeted exemptions.[Footnote 9]

   Interpreted in this way, Exemption 2—call it “Super 2” now—would extend, rather than narrow, the APA’s former exemption for records relating to the “internal management of an agency.” 5 U. S. C. §1002 (1964 ed.). We doubt that even the “internal management” provision, which Congress thought allowed too much withholding, see supra, at 2, would have protected all information that guides employees in the discharge of their duties, including the explosives data and maps in this case. And perhaps needless to say, this reading of Exemption 2 violates the rule favoring narrow construction of FOIA exemptions. See, e.g., Abramson, 456 U. S., at 630; Rose, 425 U. S., at 361. Super 2 in fact has no basis in the text, context, or purpose of FOIA, and we accordingly reject it.

V

   Although we cannot interpret Exemption 2 as the Government proposes, we recognize the strength of the Navy’s interest in protecting the ESQD data and maps and other similar information. The Government has informed us that “[p]ublicly disclosing the [ESQD] information would significantly risk undermining the Navy’s ability to safely and securely store military ordnance,” Brief for Respondent 47, and we have no reason to doubt that representation. The Ninth Circuit similarly cautioned that disclosure of this information could be used to “wrea[k] havoc” and “make catastrophe more likely.” 575 F. 3d, at 971. Concerns of this kind—a sense that certain sensitive information should be exempt from disclosure—in part led the Crooker court to formulate the High 2 standard. See 670 F. 2d, at 1074 (contending that “common sense” supported the High 2 interpretation because Congress would not have wanted FOIA to “undermin[e] … the effectiveness of law enforcement agencies”). And we acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force considerable adjustments.

   We also note, however, that the Government has other tools at hand to shield national security information and other sensitive materials. Most notably, Exemption 1 of FOIA prevents access to classified documents. §552(b)(1); see 575 F. 3d, at 980 (W. Fletcher, J., dissenting) (Exemption 1 is “specifically designed to allow government agencies to withhold information that might jeopardize our national security”). The Government generally may classify material even after receiving a FOIA request, see Exec. Order No. 13526, §1.7(d), 75 Fed. Reg. 711 (2009); an agency therefore may wait until that time to decide whether the dangers of disclosure outweigh the costs of classification. See Tr. of Oral Arg. 29–30. Exemption 3 also may mitigate the Government’s security concerns. That provision applies to records that any other statute exempts from disclosure, §552(b)(3), thus offering Congress an established, streamlined method to authorize the withholding of specific records that FOIA would not otherwise protect. And Exemption 7, as already noted, protects “information compiled for law enforcement purposes” that meets one of six criteria, including if its release “could reasonably be expected to endanger the life or physical safety of any individual.” §552(b)(7)(F). The Navy argued below that the ESQD data and maps fall within Exemption 7(F), see n. 3, supra, and that claim remains open for the Ninth Circuit to address on remand.

   If these or other exemptions do not cover records whose release would threaten the Nation’s vital interests, the Government may of course seek relief from Congress. See Tr. of Oral Arg. 48. All we hold today is that Congress has not enacted the FOIA exemption the Government desires. We leave to Congress, as is appropriate, the question whether it should do so.

VI

   Exemption 2, consistent with the plain meaning of the term “personnel rules and practices,” encompasses only records relating to issues of employee relations and human resources. The explosives maps and data requested here do not qualify for withholding under that exemption. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Footnote 1

 The court adopted the “predominantly internal” standard as a way of implementing the exemption’s requirement that materials “relat[e] solely to” an agency’s internal personnel rules and practices. The word “solely,” the court reasoned, “has to be given the construction, consonant with reasonableness, of ‘predominantly’ ” because otherwise “solely” would conflict with the expansive term “related.” 670 F. 2d, at 1056 (some internal quotation marks omitted).

Footnote 2

 Three other Courts of Appeals had previously taken a narrower view of Exemption 2’s scope, consistent with the interpretation adopted in Rose. See Cox v. Department of Justice, 576 F. 2d 1302, 1309–1310 (CA8 1978) (concluding that Exemption 2 covers only an agency’s internal “housekeeping matters” (internal quotation marks omitted)); Stokes v. Brennan, 476 F. 2d 699, 703 (CA5 1973) (holding that Exemption 2 “must not be read so broadly as to exempt” an Occupational Safety and Health Administration manual for training compliance officers); Hawkes v. IRS, 467 F. 2d 787, 797 (CA6 1972) (“[T]he internal practices and policies referred to in [Exemption 2] relate only to … employee-employer type concerns”). These Circuits have never revised their understandings of the exemption. See infra, at 13, n. 7.

Footnote 3

 The Navy also invoked Exemption 7(F), which applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such … records … could reasonably be expected to endanger the life or physical safety of any individual.” 5 U. S. C. §552(b)(7)(F). The courts below did not decide whether the Navy could withhold the ESQD data under that exemption. 575 F. 3d 959, 971, n. 8 (CA9 2009); No. CV–06–01301 (WD Wash., Oct. 30, 2007), App. to Pet. for Cert. 4, 25, 2007 WL 3228049, *8.

Footnote 4

 Government records also must satisfy the other requirements of Exemption 2 to be exempt from disclosure. Information must “relat[e] solely”—meaning, as usual, “exclusively or only,” Random House 1354 —to the agency’s “personnel rules and practices.” And the information must be “internal”; that is, the agency must typically keep the records to itself for its own use. See Webster’s 1180 (“internal” means “existing or situated within the limits … of something”). An agency’s human resources documents will often meet these conditions.

Footnote 5

 The dissent would reject this longstanding rule of construction in favor of an approach asking courts “to turn Congress’ public information objectives into workable agency practice.” Post, at 8–9 (opinion of Breyer, J.). But nothing in FOIA either explicitly or implicitly grants courts discretion to expand (or contract) an exemption on this basis. In enacting FOIA, Congress struck the balance it thought right—generally favoring disclosure, subject only to a handful of specified exemptions—and did so across the length and breadth of the Federal Government. See, e.g., John Doe Agency v. John Doe Corp., 493 U. S. 146, 152–153 (1989). The judicial role is to enforce that congressionally determined balance rather than, as the dissent suggests, post, at 4–6, to assess case by case, department by department, and task by task whether disclosure interferes with good government.

Footnote 6

 We are perplexed that the dissent takes seriously Crooker’s notion that the reports are “reconcilable.” Post, at 4. To strip the matter to its essentials, the House Report says: “Exemption 2 means A, but not B.” The Senate Report says: “Exemption 2 means B.” That is the very definition of “irreconcilable.”

Footnote 7

 The dissent’s view that “two of th[ese] Circuits [have] not adher[ed] to their early positions” is incorrect. Post, at 2. In Abraham & Rose, P.L.C. v. United States, cited by the dissent, the Sixth Circuit rejected the Government’s claim that Exemption 2 shielded records of federal tax lien filings. 138 F. 3d 1075, 1082 (1998). The court nowhere discussed the High 2 versus Low 2 question at issue here. Its only reference to Crooker concerned the part of that decision interpreting “solely” to mean “predominantly.” See 138 F.3d, at 1080; see also n. 1, supra. Subsequently, the Sixth Circuit once again held, in Rugiero v. Department of Justice, that Exemption 2 applies to “routine matters of merely internal significance.” 257 F. 3d 534, 549 (2001). In Sladek v. Bensinger, which the dissent also cites, the Fifth Circuit insisted that the Government disclose a Drug Enforcement Administration agent’s manual because it “is not the type of trivial rule, such as allocation of parking facilities, that is covered by Exemption 2.” 605 F. 2d 899, 902 (1979). In confirming this Low 2 interpretation of the statute, the court acknowledged that another Circuit had embraced the High 2 standard. The court, however, declined to consider this alternative interpretation because it would not have changed the case’s outcome. See ibid. Finally, the Eighth Circuit’s last word on Exemption 2 is clear, and the dissent does not say otherwise. The exemption, according to that most recent Eighth Circuit decision, applies “only [to an agency’s] housekeeping matters.” Cox, 576 F. 2d, at 1309–1310 (internal quotation marks omitted). The dissent is surely right to say, post at 2, that Crooker “has guided nearly every FOIA case decided over the last 30 years” in Circuits applying Crooker; but that statement does not hold in the Circuits using the Low 2 approach.

Footnote 8

 Notably, even those courts approving Crooker have disagreed about how to apply High 2. Fault lines include whether the risk of circumvention must be significant, see, e.g., Hidalgo v. FBI, 541 F. Supp. 2d 250, 253 (DC 2008); Pet. for Cert. 15–16; whether courts should consider the public interest in disclosure when calculating that risk, see, e.g., Department of Justice, Guide to the Freedom of Information Act, p. 185 (2009); and whether an agency must regulate the person or entity threatening circumvention; compare, e.g., 575 F. 3d, at 971, with, e.g., id., at 978 (W. Fletcher, J., dissenting). The disagreement is not surprising. Because High 2 is nowhere evident in the statute, courts lack the normal guideposts for ascertaining its coverage.

Footnote 9

 The dissent asserts that “30 years of experience” with a more expansive interpretation of the exemption suggests no “seriou[s] interfere[nce] with … FOIA’s informational objectives.” Post, at 6. But those objectives suffer any time an agency denies a FOIA request based on an improper interpretation of the statute. To give just one example, the U. S. Forest Service has wrongly invoked Exemption 2 on multiple occasions to withhold information about (of all things) bird nesting sites. See Audubon Society v. Forest Serv., 104 F. 3d 1201, 1203 (CA10 1997); Maricopa Audubon Soc. v. Forest Serv., 108 F. 3d 1082, 1084 (CA9 1997). And 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.” Brief for Public Citizen et al. as Amici Curiae 24. In 2009 alone, federal departments cited Exemption 2 more than 72,000 times to prevent access to records. See Brief for Allied Daily Newspapers of Washington et al. as Amici Curiae 3. We do not doubt that many of these FOIA denials were appropriate. But we are unable to accept the dissent’s unsupported declaration that a sweeping construction of Exemption 2 has not interfered with Congress’s goal of broad disclosure.

ALITO, J., CONCURRING
MILNER V. DEPARTMENT OF NAVY
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-1163

GLEN SCOTT MILNER, PETITIONER v. DEPARTMENT OF THE NAVY

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 7, 2011]

   Justice Alito, concurring.

   I agree with the Court that the text of Exemption 2 of the Freedom of Information Act of 1966 cannot support the “High 2” interpretation that courts have adopted and applied over the years. As the Court explains, however, the Government may avail itself of numerous other exemptions, see ante, at 18—exemptions that may have been overshadowed in recent years by the broad reach of High 2. I write separately to underscore the alternative argument that the Navy raised below, which rested on Exemption 7(F) and which will remain open on remand. See ante, at 5, n. 3, 18.

   Exemption 7 applies to specific categories of information “compiled for law enforcement purposes.” 5 U. S. C. §552(b)(7). In particular, Exemption 7(F) permits withholding of “records or information compiled for law enforcement purposes” that, if disclosed, “could reasonably be expected to endanger the life or physical safety of any individual.” §552(b)(7)(F). In most cases involving security information, it is not difficult to show that disclosure may “endanger the life or physical safety of any individual.” A more difficult question, however, is whether the information is “compiled for law enforcement purposes.” See John Doe Agency v. John Doe Corp., 493 U. S. 146, 153 (1989) (“Before it may invoke [Exemption 7], the Government has the burden of proving the existence of … a compilation for such a purpose”). In my view, this phrase reasonably encompasses information used to fulfill official security and crime prevention duties.

   “Law enforcement purposes.” The ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security. A “law enforcement officer” is defined as one “whose duty it is to preserve the peace,” Black’s Law Dictionary 796 (5th ed. 1979), and fulfilling that duty involves a range of activities. Police on the beat aim to prevent crime from occurring, and they no less carry out “law enforcement purposes” than officers investigating a crime scene. Similarly, a “law-enforcement agency” is charged with “the apprehension of alleged offenders as well as crime detection and prevention.” R. De Sola, Crime Dictionary 82 (1982) (emphasis added).

   Crime prevention and security measures are critical to effective law enforcement as we know it. There can be no doubt, for example, that the Secret Service acts with a law enforcement purpose when it protects federal officials from attack, even though no investigation may be ongoing. Likewise, steps by law enforcement officers to prevent terrorism surely fulfill “law enforcement purposes.” Particularly in recent years, terrorism prevention and national security measures have been recognized as vital to effective law enforcement efforts in our Nation. Indeed, “[a]fter the September 11th attacks on America,” the priorities of the Federal Bureau of Investigation “shifted dramatically,” and the FBI’s “top priority became the prevention of another terrorist attack.” Hearings before the Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies of the House Committee on Appropriations, 109th Cong., 2d Sess., pt. 10, 232 (2006) (testimony of FBI Director Robert S. Mueller III). Today, “[t]he FBI’s number one priority continues to be the prevention of terrorist attacks against the United States.” Hearings before the Senate Committee on Homeland Security and Governmental Affairs, 111th Cong., 2d Sess, p. ___ (Sept. 22, 2010) (testimony of Mueller). If crime prevention and security measures do not serve “law enforcement purposes,” then those charged with law enforcement responsibilities have little chance of fulfilling their duty to preserve the peace.

   The context of Exemption 7 confirms that, read naturally, “law enforcement purposes” involve more than just investigation and prosecution. As Exemption 7’s subparagraphs demonstrate, Congress knew how to refer to these narrower activities. See, e.g., §552(b)(7)(A) (information that “could reasonably be expected to interfere with enforcement proceedings”); §552(b)(7)(E) (information that “would disclose techniques and procedures for law enforcement investigations or prosecutions”). Congress’ decision to use different language to trigger Exemption 7 confirms that the concept of “law enforcement purposes” sweeps in activities beyond investigation and prosecution. See Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (applying the “usual rule” that “ when the legis- lature uses certain language in one part of the statute and different language in another, the court assumes dif- ferent meanings were intended” (internal quotation marks omitted)).

   “Compiled for law enforcement purposes.” This Court has given a fairly broad meaning to “compiled” under §552(b)(7). In John Doe Agency, we held that information need not have been originally “compiled for law enforcement purposes” to satisfy Exemption 7’s threshold requirement. Rather, “even though … documents were put together at an earlier time for a different purpose,” they may fall within Exemption 7 if they are later assembled for law enforcement purposes. 493 U. S., at 154–155. For example, documents originally gathered for routine business purposes may fall within Exemption 7 if they are later compiled for use in a criminal investigation. Similarly, federal building plans and related information—which may have been compiled originally for architectural planning or internal purposes—may fall within Exemption 7 if that information is later compiled and given to law enforcement officers for security purposes.

   Documents compiled for multiple purposes are not nec- essarily deprived of Exemption 7’s protection. The text of Exemption 7 does not require that the information be compiled solely for law enforcement purposes. Cf. §552(b)(2) (“related solely to the internal personnel rules and practices of an agency”). Therefore, it may be enough that law enforcement purposes are a significant reason for the compilation.

   In this case, the Navy has a fair argument that the Explosive Safety Quantity Distance (ESQD) information falls within Exemption 7(F). The ESQD information, the Navy argues, is used “for the purpose of identifying and addressing security issues” and for the “protection of people and property on the base, as well as in [the] nearby community, from the damage, loss, death, or injury that could occur from an accident or breach of security.” Brief for Appellee in No. 07–36056 (CA9), pp. 39–40. If, indeed, the ESQD information was compiled as part of an effort to prevent crimes of terrorism and to maintain security, there is a reasonable argument that the information has been “compiled for law enforcement purposes.” §552(b)(7). Assuming that this threshold requirement is satisfied, the ESQD information may fall comfortably within Exemption 7(F).

BREYER, J., DISSENTING
MILNER V. DEPARTMENT OF NAVY
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-1163

GLEN SCOTT MILNER, PETITIONER v. DEPARTMENT OF THE NAVY

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 7, 2011]

   Justice Breyer, dissenting.

   Justice Stevens has explained that, once “a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies,” it can acquire a clear meaning that this Court should hesitate to change. See Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 268 (1987) (opinion concurring in part and dissenting in part) (emphasis added). See also Commissioner v. Fink, 483 U. S. 89, 104 (1987) (Stevens, J., dissenting); B. Cardozo, The Nature of the Judicial Process 149 (1921). I would apply that principal to this case and accept the 30-year-old decision by the D. C. Circuit in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F. 2d 1051 (1981) (en banc), as properly stating the law.

   For one thing, the Crooker decision, joined by 9 of the 10 sitting Circuit Judges, has been consistently followed, or favorably cited, by every Court of Appeals to have considered the matter during the past 30 years. See ibid. (written by Judge Edwards, and joined by Chief Judge Robinson and Judges Wright, MacKinnon, Robb, Wald, Mikva, and then-Judge Ginsburg, with Judge Tamm concurring in the result and Judge Wilkey dissenting); Massey v. FBI, 3 F. 3d 620, 622 (CA2 1993); Kaganove v. EPA, 856 F. 2d 884, 889 (CA7 1988), cert. denied, 488 U. S. 1011 (1989); Dirksen v. HHS, 803 F. 2d 1456, 1458 (CA9 1986). Three Circuits adopted a different approach in the 1970’s before Crooker was decided, see ante, at 3–4, n. 2, but I read subsequent decisions in two of those Circuits as not adhering to their early positions. See Abraham & Rose, PLC v. United States, 138 F. 3d 1075, 1080–1081 (CA6 1998) (finding Crooker’s textual analysis “sound and persuasive,” and noting that FBI symbols “used internally to identify confidential sources” may be withheld); Sladek v. Bensinger, 605 F. 2d 899, 902 (CA5 1979) (expressly reserving judgment on the Crooker issue). As for the remaining Circuit, its district courts understand Crooker now to apply. See, e.g., Gavin v. SEC, No. 04–4522, 2007 WL 2454156, *5–*6 (D Minn., Aug. 23, 2007); see also McQueen v. United States, 264 F. Supp. 2d 502, 528 (SD Tex. 2003), aff’d, 100 Fed. Appx. 964 (CA5 2004) (per curiam); Tickel v. IRS, No. 1–85–709, 1986 WL 14436, *2–*3 (ED Tenn., Aug. 22, 1986). I recognize that there is reasonable ground for disagreement over the precise status of certain pre-Crooker precedents, but the Crooker interpretation of Exemption 2 has guided nearly every Freedom of Information Act (FOIA) case decided over the last 30 years. See generally Dept. of Justice, Guide to Freedom of Information Act, pp. 184–206 (2009) (FOIA Guide) (identifying over 100 district court decisions applying the Crooker approach, and one appearing to reject it).

   Congress, moreover, well aware of Crooker, left Exemption 2, 5 U. S. C. §552(b)(2), untouched when it amended the FOIA five years later. See S. Rep. No. 98–221, p. 25 (1983) (discussing Crooker); Freedom of Information Reform Act of 1986, 100 Stat. 3207–48 (amending Exemption 7, 5 U. S. C. §552(b)(7)).

   This Court has found that circumstances of this kind offer significant support for retaining an interpretation of a statute that has been settled by the lower courts. See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 593–594 (2004); Evans v. United States, 504 U. S. 255, 268–269 (1992); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 833 (1989); Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 338–339 (1988); Lindahl v. Office of Personnel Management, 470 U. S. 768, 781–783 (1985); Herman & MacLean v. Huddleston, 459 U. S. 375, 385–386 (1983); Cannon v. University of Chicago, 441 U. S. 677, 702–703 (1979); Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 731–732 (1975); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 200–201 (1974); Blau v. Lehman, 368 U. S. 403, 412–413 (1962). See generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation 1048 (4th ed. 2007) (“[T]he acquiescence rule can also support implicit congressional ratification of a uniform line of federal appellate interpretations …”).

   For another thing, even if the majority’s analysis would have persuaded me if written on a blank slate, Crooker’s analysis was careful and its holding reasonable. The Circuit Court examined the statute’s language, the legislative history, and the precedent. It recognized that the exemption’s words (“related solely to the internal personnel rules and practices of an agency”) could easily be read, as the Court reads them today, to refer only to human resources rules and practices. See 670 F. 2d, at 1056–1057. But it also thought that those words could be read more broadly as referring to internal rules or practices that set forth criteria or guidelines for agency personnel to follow in respect to purely internal matters (as long as the information at issue was “not of legitimate public interest”). Id., at 1056, 1057.

   The D. C. Circuit agreed with today’s Court that the Senate Report described the exemption as referring to “ ‘internal personnel’ ” matters, giving as examples “ ‘personnel’s use of parking facilities, … sick leave, and the like.’ ” Id., at 1058–1059 (quoting S. Rep. No. 813, 89th Cong., 1st Sess., p. 8 (1965)). But it also noted that the House Report described the exemption as protecting from disclosure “ ‘[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners.’ ” 670 F. 2d, at 1060 (quoting H. R. Rep. No. 1497, 89th Cong., 2d Sess., p. 10 (1966)). “[U]pon reflection,” it thought the views of the two Houses “reconcilable” if one understood both sets of examples as referring to internal staff information (both minor personnel matters and staff instruction matters) that the public had no legitimate interest in learning about. 670 F. 2d, at 1065. And it accepted this view in light of its hesitation to “apply individual provisions of the statute woodenly, oblivious to Congress’ intention that FOIA not frustrate law enforcement efforts.” Id., at 1066. At the same time it found no other exemption that would protect internal documents in which there is no legitimate public interest in disclosure—a category that includes, say, building plans, safe combinations, computer passwords, evacuation plans, and the like.

   After examining in depth the legislative history and relevant precedent, the court adopted an approach based on a prior opinion by Circuit Judge Leventhal, as well as language used by this Court in Department of Air Force v. Rose, 425 U. S. 352, 369 (1976). The D. C. Circuit held that a document fits within the literal language of Exemption 2 and is exempt from disclosure if (1) it “meets the test of ‘predominant internality,’ ” i.e., the document is “not of legitimate public interest,” and (2) “disclosure significantly risks circumvention of agency regulations or statutes.” Crooker, supra, at 1056, 1074; see also Rose, supra, at 369 (suggesting that Exemption 2 might apply where “disclosure may risk circumvention of agency regulation”). This test, based upon Congress’ broader FOIA objectives and a “common sense” view of what information Congress did and did not want to make available, Crooker, supra, at 1074, takes the “practical approach” that this Court has “consistently … taken” when interpreting the FOIA, John Doe Agency v. John Doe Corp., 493 U. S. 146, 157 (1989).

   I would not underestimate the importance of this “practical approach.” It reflects this Court’s longstanding recognition that it cannot interpret the FOIA (and the Administrative Procedure Act (APA) of which it is a part) with the linguistic literalism fit for interpretations of the tax code. See generally 1 R. Pierce, Administrative Law Treatise §7.1, p. 413 (4th ed. 2002) (“Judicial interpretation of the malleable language of the APA has produced changes in the rulemaking procedure that could be characterized as revolutionary if they had been affected in a day or a year rather than gradually over a period of decades”); cf. Sunstein & Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 917–918, and n. 111 (2003) (observing that Congress “appears to rely on courts for long periods of time” to give meaning to the APA, which justifies interpreting it less formalistically than statutes like “the Internal Revenue Code”). That in large part is because the FOIA (like the APA but unlike the tax code) must govern the affairs of a vast Executive Branch with numerous different agencies, bureaus, and departments, performing numerous tasks of many different kinds. Too narrow an interpretation, while working well in the case of one agency, may seriously interfere with congressional objectives when applied to another. The D. C. Circuit’s answer to this legal problem here was to interpret Exemption 2 in light of Congress’ basic effort to achieve a “workable balance between the interests of the public in greater access to information and the needs of the Government to protect certain kinds of information from disclosure.” John Doe Agency, supra, at 157. See also S. Rep. No. 1219, 88th Cong., 2d Sess., 8, 11 (1964) (emphasizing this “workable” balance); S. Rep. No. 813, at 3, 5 (same); H. R. Rep. No. 1497, at 2, 6 (same).

   Further, 30 years of experience with Crooker’s holding suggests that it has not seriously interfered with the FOIA’s informational objectives, while at the same time it has permitted agencies to withhold much information which, in my view, Congress would not have wanted to force into the public realm. To focus only on the case law, courts have held that that information protected by Exemption 2 includes blueprints for Department of Agriculture buildings that store biological agents, Elliot v. Department of Agriculture, 518 F. Supp. 2d 217 (DC 2007); documents that would help hackers access National Aeronautics and Space Administration computers, Knight v. NASA, No. 2:04–cv–2054–MCE–GGH, 2006 WL 3780901, *6 (ED Cal., Dec. 21, 2006); agency credit card numbers, Judicial Watch, Inc. v. Department of Commerce, 83 F. Supp. 2d 105, 110 (DC 1999); Commodity Futures Trading Commission guidelines for settling cases, Shu-maker, Loop & Kendrick, LLP v. Commodity Futures Trading Comm’n, No. 3:97 CV 7139, 1997 U. S. Dist. LEXIS 23993, *10–*15 (ND Ohio, May 27, 1997); “trigger figures” that alert the Department of Education to possible mismanagement of federal funds, Wiesenfelder v. Riley, 959 F. Supp. 532, 536 (DC 1997); security plans for the Supreme Court Building and Supreme Court Justices, Voinche v. FBI, 940 F. Supp. 323, 328–329 (DC 1996); vulnerability assessments of Commerce Department com-puter security plans, Schreibman v. Department of Commerce, 785 F. Supp. 164, 165–166 (DC 1991); Bureau of Prisons guidelines for controlling riots and for storing hazardous chemicals, Miller v. DOJ, No. 87–0533, 1989 WL 10598 (DC, Jan. 31, 1989); guidelines for assessing the sensitivity of military programs, Institute for Policy Studies v. Department of Air Force, 676 F. Supp. 3, 4–5 (DC 1987); and guidelines for processing Medicare reimbursement claims, Dirksen, 803 F. 2d, at 1458–1459.

   In other Exemption 2 cases, where withholding may seem less reasonable, the courts have ordered disclosure. Cf. ante, at 16, n. 9 (citing Audubon Society v. Forest Serv., 104 F. 3d 1201, 1203 (CA10 1997), and Maricopa Audubon Soc. v. Forest Serv., 108 F. 3d 1082, 1084 (CA9 1997)). See generally FOIA Guide 201, and n. 106 (citing nine decisions applying the Crooker approach but nonetheless requiring disclosure).

   The majority acknowledges that “our decision today upsets three decades of agency practice relying on Crooker, and therefore may force considerable adjustments.” Ante, at 18. But how are these adjustments to be made? Should the Government rely upon other exemptions to provide the protection it believes necessary? As Justice Alito notes, Exemption 7 applies where the documents consist of “records or information compiled for law enforcement purposes” and release would, e.g., “disclose techniques and procedures for law enforcement investigations,” or “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U. S. C. §552(b)(7). But what about information that is not compiled for law enforcement purposes, such as building plans, computer passwords, credit card numbers, or safe deposit combinations? The Government, which has much experience litigating FOIA cases, warns us that Exemption 7 “targets only a subset of the important agency functions that may be circumvented.” Brief for Respondent 52–53. Today’s decision only confirms this point, as the Court’s insistence on narrow construction might persuade judges to avoid reading Exemption 7 broadly enough to provide Crooker-type protection.

   The majority suggests that the Government can classify documents that should remain private. Ante, at 18. See 5 U. S. C. §552(b)(1) (permitting withholding of material “properly classified” as authorized to be “kept secret in the interest of national defense or foreign policy”). But classification is at best a partial solution. It takes time. It is subject to its own rules. As the Government points out, it would hinder the sharing of information about Government buildings with “first responders,” such as local fire and police departments. Brief for Respondent 53–54. And both Congress and the President believe the Nation currently faces a problem of too much, not too little, classified material. See Reducing Over-Classification Act, 124 Stat. 2648; Exec. Order No. 13526, §§1.3(d), 2.1(d), 5.4(d)(10), 3 CFR 298, 299–300, 304, 321 (2009 Comp.). Indeed, Congress recently found:

“The 9/11 Commission and others have observed that the over-classification of information interferes with accurate, actionable, and timely information sharing, increases the cost of information security, and needlessly limits stakeholder and public access to information.

   “Over-classification of information causes considerable confusion regarding what information may be shared with whom, and negatively affects the dissemination of information within the Federal Government and with State, local, and tribal entities, and with the private sector.” Reducing Over-Classification Act, §§2(2), (3), 124 Stat. 2648.

These legislative findings suggest that it is “over-classification,” not Crooker, that poses the more serious threat to the FOIA’s public information objectives.

   That leaves congressional action. As the Court points out, Congress remains free to correct whatever problems it finds in today’s narrowing of Exemption 2. But legislative action takes time; Congress has much to do; and other matters, when compared with a FOIA revision, may warrant higher legislative priority. In my view, it is for the courts, through appropriate interpretation, to turn Congress’ public information objectives into workable agency practice, and to adhere to such interpretations once they are settled.

   That is why: Where the courts have already interpreted Exemption 2, where that interpretation has been consistently relied upon and followed for 30 years, where Congress has taken note of that interpretation in amending other parts of the statute, where that interpretation is reasonable, where it has proved practically helpful and achieved commonsense results, where it is consistent with the FOIA’s overall statutory goals, where a new and different interpretation raises serious problems of its own, and where that new interpretation would require Congress to act just to preserve a decades-long status quo, I would let sleeping legal dogs lie.

   For these reasons, with respect, I dissent.

Print this transcript Transcript: 

ORAL ARGUMENT OF DAVID S. MANN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-1163, Milner v. The Department of the Navy.

Mr. Mann.

Mr. Mann: Mr. Chief Justice, and may it please the Court:

There are four points I would like to make this morning.

First, the plain language of Exemption 2 dictates an extremely narrow category of materials, those related solely to internal personnel policies and rules.

Second, even if you look beyond the plain language and look to the legislative history, the legislative history is focused, and the additional legislative history from the House is focused, only on law enforcement or investigatory materials, items that were covered through the 1986 amendments to FOIA, making any additional judicial High 2 unnecessary.

The third point: Because of FOIA's purpose, if you find that the language, the plain language, is not clear or if you find that the legislative history isn't sufficient, then the focus must be on an interpretation that supports disclosure, not secrecy.

And finally, Congress in enacting FOIA conducted the balancing.

It reserved for it, itself, the authority to add to or expand FOIA through Exemption 3.

It did not leave agency discretion available for the agencies to decide what documents they can provide or not.

Moving into our first argument, the plain language.

At issue is a very short sentence related solely to internal personnel rules and procedures -- and rules and practices.

Congress chose to use the words "related solely" on purpose.

That's an extremely narrow view.

Now, we understand if you look at the words in isolation, perhaps you could see that there is some conflict between them.

"Related" could be broad, "solely" is extremely narrow.

But when read together, as they should be in this statute, "related solely" is an extremely narrow class of documents.

Justice Samuel Alito: Could I ask you this.

The D.C. Circuit's decision in Crooker has been the leading decision in this -- on this issue for nearly 30 years and there has been a great deal of reliance on it, certainly by the lower courts in general, and perhaps also by Congress and by the Executive Branch.

Do you think there is anything to be said for deference to that decision based on the fact that it has been -- there has been reliance on it to such a great degree for such a period of time?

Mr. Mann: No, Your Honor.

When Crooker came down, the Court was faced with an extremely -- a circumstance dealing with these FBI or ATF search and seizure manuals, and the Court adopted and created the High 2 exemption.

But again, we believe in 1986 Congress dealt with that expressly, explicitly, and took the exact same language and inserted it into a stand-alone exemption, Exemption 7(A), making Crooker no longer needed or necessary.

In the past the Court--

Justice Samuel Alito: I ask -- I ask the question because the world has changed in a lot of ways since 1981, and one is that there is now I think much greater concern about the disclosure of information that has perhaps profound security implications.

That was not as much of a concern in -- in 1981.

If you think about, for example, suppose there is a Federal building with a hallway that is accessible only to somebody who has a code key.

Would that be -- is that -- does that have to be disclosed under FOIA?

Or architectural plans for a Federal building that would disclose the size of the bomb that would be necessary to bring the building down or bring part of the building down; is there any FOIA exemption that covers things like that?

Mr. Mann: --Well, Your Honor, there could be a variety of FOIA exemptions that could fit under 7 depending on whether or not it's law enforcement-related.

For example, if it's FBI instructions on guarding a facility or guarding individuals, perhaps that would be law enforcement.

And if it's protecting individuals within that building, under 7(F).

Or it could be something addressed specifically through Exemption 3.

And coming to your original -- the original part of your question, that times have changed, we recognize that; and Congress recognized certainly that times could and would change when it adopted it; and that's why we believe Congress kept for itself Exemption 3.

Justice Ruth Bader Ginsburg: Even though--

Justice Stephen G. Breyer: 7 and 3--

Justice Ruth Bader Ginsburg: --Even though you -- you said that -- about Exemption 7, the amendment to that, so you don't need 2, you still -- as far as I know every court of appeals that has weighed in has accepted Crooker.

And I was a little puzzled why you were so intent on rejecting so-called High 2, because after all, in this very case, Judge Fletcher dissenting to, but he said he accepts Crooker, he accepts High 2, and he still thinks you win, so you don't need to reject Crooker to prevail.

Mr. Mann: We don't need to project -- under Judge Fletcher's viewpoint, we did not need to reject High 2 to prevail.

But again, he was the dissent.

But more importantly, Crooker -- again we think this language -- this case rises and falls on the plain language of the statute, and Crooker was an expansion to that, and we need to accept that Crooker was an expansion of that, and Congress accepted that it was an expansion when they came up with 7(E).

Justice Stephen G. Breyer: --Why does that show that?

Why doesn't it show acceptance of Crooker?

Mr. Mann: Well, I think--

Justice Stephen G. Breyer: I mean, if Crooker was interpreting section 2, that was the interpretation.

If everyone had followed it, every court, nobody disagreed.

All your four arguments Judge Edwards went into thoroughly.

Everyone but Judge Wilkie approved it.

And so Congress reads that, and they make it specific in 7 but they say nothing about 2.

Mr. Mann: --I think there are three points to look at on that.

First of all, Congress originally did look at amending section 2 -- Exemption 2, at the same time they looked at amending Exemption 7.

They chose not to.

Now, we don't -- we can't read everything into that, but they chose not to.

They made 7 specifically and 7 covered all of the language that we would be looking for.

So really, if you are still reading Exemption 2 to include a High 2, then 7(E) becomes superfluous.

And then a final point and I think a very important point--

Justice Antonin Scalia: Well, you get a different Congress.

I mean, the Congress that passed the law is not necessarily the same Congress that failed to amend the law.

Are we to consider laws to be in effect only for so long as the Congress that passed them is sitting, and then the failure to make any changes in light of judicial decisions by later Congresses effectively amends the law?

Mr. Mann: --No.

Justice Antonin Scalia: That's an extraordinary proposition.

Mr. Mann: No, that's not the proposition I am making.

The proposition I am making is that when in 1984, '84 to '86, took place and looked at this, and as they saw the issue of Jordan and they saw the issue of Crooker, their decision was to consolidate that decision, what had been called 2> ["], into 7(E).

Justice Stephen G. Breyer: How do you know, what we have is 7 E in front of us?

7 E says we want to be sure something like Crooker's interpretation of 2 applies for law enforcement.

It's simply a case -- so they apply it with law enforcement.

Absolutely now it's guaranteed.

Crooker is not guaranteed because it could be overturned.

You never know what will happen.

But what in that suggests they don't want Crooker to apply to the Fed for example, or to the Navy, which is here storing -- it's here storing explosives.

Why would -- I can't get anything one way or the other from the fact they passed 7.

Why should I get one rather than the other?

For every argument you make, I can see an argument on the other side that they make.

Mr. Mann: Well, another point that I would--

Justice Stephen G. Breyer: What's your answer to that?

It was a question, really.

Mr. Mann: --Well, my answer is, is, you are correct that they did not read -- they did not specifically state what they were doing or why.

So all we can do is look at what they did in its totality.

Justice Sonia Sotomayor: But there was a proposal to amend 2--

Mr. Mann: There had been an original proposal.

Justice Sonia Sotomayor: --And it was a conscious decision by Congress not to do 2 to conform to Crooker more generally, but to only pass 7.

So there has to be a meaning to the decision to limit the amendment.

Mr. Mann: I would believe that they -- backing up to Crooker.

If you look at the arguments in Crooker and you look at I believe every point in Crooker, where they discuss either the legislative history or they discuss other case law analysis leading to High 2, it was focused on these investigative materials: Examiner's materials, manuals, manuals that we didn't want the regulator to have an opportunity to have.

And that's all now captured.

Justice Antonin Scalia: Mr. Mann, do you assume there is always a reason for Congress's not passing a law?

I mean, it's hard enough to figure out their reason for passing a law, but there could be an infinitude of reasons why a law is not passed.

Mr. Mann: I accept that, Your Honor.

Justice Antonin Scalia: Do you know of any case in which the failure of Congress to amend a law in order to overrule a court decision other than a decision of this Court has been held to be an implicit approval of that decision?

Do we have a single case where we said, oh, there was a line of court of appeals cases and since Congress failed to amend the statute to take account of those court of appeals cases, Congress must have approved them.

Do we have any case like that?

Mr. Mann: No, we don't, Your Honor.

Justice Antonin Scalia: I don't know of any.

Mr. Mann: Your Honor, but I would like to make one additional point on this.

By doing what Congress did in 1986 -- and again they are not telling us this, but we can look at the statute -- what they've done is preserve once again that clear distinct line between the exemptions.

Exemption 2 on its plain -- now Exemption 2 under its plain language is for use related solely to internal personnel matters.

That's an isolated exemption.

We don't need to go back to it to look abroad and start looking for other exceptions.

We have Exemption 7(E) now to handle that.

So there is a clear sharp dividing line.

And as this Court said in Rose, actually quoting Vaughn, we needed that sharp dividing line to let agencies know--

Justice Sonia Sotomayor: Counsel, in Rose we talked about a legitimate public purpose in seeking information.

I tie my question to Justice Alito's, which is at what point does -- is it legitimate for the public to seek information, internal information relating to the rules and practices of personnel?

Can the public seek information that places the community at a severe security risk?

Is it possible for us to say that that kind of information, given our line of reasoning in Rose, could not be legitimate public information?

Mr. Mann: --But it does not have to be using Exemption 2, as its stated, for strictly internal personnel policies.

There are other reasons and ways that some material that might create a security risk can be protected.

Congress has -- there is over 150 -- I believe the number currently is 153 statutes that they have enacted under section 3, using section 3.

That includes as recently as last year, when the Department of Defense v. ACLU case came before you.

Congress said that was doing with the "overly broad" clause.

Congress stepped in and passed an amendment to the Securities Act to exempt those documents specifically from release, in order to protect.

That was using the proper authority.

It didn't require an agency to go back and rely on an 2> ["], Exemption 2.

And that's the danger of the expansion we are looking at, is it allows Exemption 2 to be used for an open-ended.

Any time an agency feels it may be appropriate that it might not want to release something, it can rely on Exemption 2.

That was never the intent.

Congress tried from the beginning to preserve for itself that discretion and that authority and to remove the discretion.

As we point out -- as we set out for you in our briefs, if you look at the legislative history, many of the agencies and Department of Justice that came before Congress asked for that discretion, and Congress did not give it to them.

They reserved and instead we have Exemption 3.

So what we're saying is that you do not need to -- there may be reasons that you want to take high security information and have it isolated from the public's review, but it's not through using an exemption that was really designed for minor internal matters.

Justice Anthony Kennedy: Of course, if that's the outcome of this case and if you prevail, that would mean that more things will be classified and withdrawn wholly from scrutiny, whereas if other exemptions are used they can be shared to a greater extent.

So really what you are arguing for is for withholding more information from more people.

Mr. Mann: I don't think I am, Your Honor, because I believe that through the Exemption 3 they can't limit it to.

For example, in this case if there was a need for Congress to adopt the specific protection for these maps, it could.

The problem that we have here in this case, again, is these maps at this base have been given out.

And again, it's a map.

It's a map showing the range, the size of an explosion, and its effect on the surrounding community.

That map has been given out from this base to some people, and some of those people they gave it to actually gave it to the newspaper.

It's been not given out to others, including my client.

Other bases nearby, our Bangor Trident Submarine Base, gave out the map upon request.

If this map that we are looking at is that secure, then perhaps it should be that secure and protected across the board.

But that's not what we have.

We have -- instead, we have an individual within an agency making a decision to withhold a certain document from some people and not others, and when they give it out to the others, they have no control over what those people do with that map.

And that's not a correct use of the Exemption 2.

Justice Stephen G. Breyer: What do you want to know?

How wide the corridors are in some Federal buildings, and terrorists could use that to bad purpose, but we want to give it to the firemen because they will use it for a good purpose.

We want the policemen to know, we want different civic groups sometimes to know, but we want to keep a limitation.

We want it restricted, restricted to minimize the chance it will get into the wrong hands.

I don't see anything illogical about that.

What's illogical about that?

Mr. Mann: But it shouldn't be through Exemption 2.

Justice Stephen G. Breyer: Why?

Mr. Mann: Because it's not an--

Justice Stephen G. Breyer: Well, that's a different argument.

Mr. Mann: --Right.

Justice Stephen G. Breyer: I mean, your four arguments seem to me to be the same arguments that Judge Edwards in the D.C. Circuit considered, and they are excellent arguments, and there are arguments on both sides, and then they considered it and came to a conclusion.

But this is a different argument you are making here and I was addressing that.

Mr. Mann: It's a different argument in the sense that what Judge Edwards was looking at and the Crooker decision was looking at was a specific group of documents, these manuals of policy and procedure.

And again, we believe that that was addressed through the 7(E) in 1986.

So we are back now to: Should there still be a High 2 category?

Is that how we want to read this?

Justice Stephen G. Breyer: I mean, it's only addressed from law enforcement.

It's -- there are many dangerous -- for example, this isn't law enforcement; this is munitions.

The Navy thinks, rightly or wrongly, I guess you can -- that they don't want these maps circulated because they think it would make it easier to blow up the munitions.

They want the firemen to have them, they want the civil defense workers to have them, but they don't want people who might blow them up to have them.

Mr. Mann: Well--

Justice Stephen G. Breyer: That's -- that's their reasoning.

Now, that isn't addressed, it seems to me, in 7, because 7 deals with law enforcement.

Mr. Mann: --I would agree that this, perhaps, was not addressed in 7.

7 was -- was argued before the Ninth Circuit, but not answered on whether or not these fit under 7.

But again, it should not come back to the use of Exemption 2.

Perhaps another exemption--

Justice Ruth Bader Ginsburg: As I -- as I read the D.C. Circuit decision, you are assuming or you are suggesting that the D.C. Circuit saw a gap that Congress hadn't provided for, and it fills that gap.

And now the add-on that the D.C. Circuit made is no longer necessary, so we lop it off.

But the judges on that, in that court, thought that they were interpreting the statute going through all of the steps that you outlined.

Language is rarely so plain that there is no room for a different interpretation.

And then Judge Edwards looked to the legislative history to see how that might inform the decision, but -- but really, to suggest that Crooker was just sort of a stopgap until Congress amended the statute I think is not fair to that decision.

Mr. Mann: --Your Honor, the issue here is not so much Crooker as it is what the Ninth Circuit has done to, we believe, expand Crooker, because you are correct, obviously the Crooker decision was a well-written, long, and very detailed decision, both the en banc as well as the dissents, but -- the dissent.

But even there, they were looking at that same legislative history, and it's the same legislative history that this Court looked at in Rose, and there is a limit.

They didn't say that it needed to reach all the way out to cover anything as broad as a category of what the Navy's proceeding with here.

They looked at manuals of procedure, the disclosure of which would enable the regulated community to circumvent those agency regulations.

Again, you addressed that as arguably dicta, but that is the statement you had made in Rose, that it was by the regulated to circumvent regulations.

The documents we have, for example, in this case are not.

The regulated entity under the Operator 5 manual is the Navy.

It's how the Navy stores and moves its munition around.

So even under a reading of -- of Crooker, what Crooker was looking at, looking at the House report, taking the House report on its face, taking the testimony before Congress that was on its face, again, that was still dealing with these operating rules and guidelines for government investigators or examiners.

Not--

Justice Antonin Scalia: Mr. Mann, I thought you disagreed with the premise of Justice Ginsburg's question; that is, that you assert that the language related solely to the internal personnel rules and practices of an agency is quite clear.

Mr. Mann: --I do.

Justice Antonin Scalia: I thought maybe you were abandoning that.

Mr. Mann: No, no.

I mean, I -- but what I was saying was that we do believe it was quite clear.

But even if you went beyond, which obviously they did in Crooker, and obviously you could argue from the House report -- even if you go beyond, it's still a limited category that does not reach so broad as what the Ninth Circuit has opened up here, and as what the Navy is arguing before you now, which is even broader than what the Ninth Circuit reached.

Justice Stephen G. Breyer: How is it -- how is it broader?

I looked for the words.

I just missed them, and you can point them out.

When I read about the circumvention, what Crooker says is:

"We hold that since the document for which disclosure is sought meets the test of predominant internality and since its disclosure significantly risks circumvention of Federal statutes or regulations, it is exempt. "

It didn't say anything about circumvention because there is a regulated entity and it is that regulated entity that we'll circumvent.

It just spoke of circumvention, as far as I saw.

But maybe there's another place where it talks about regulated entity.

Is there?

Mr. Mann: Well, I believe it is addressed in the decision during the context leading up to the decision, but it is addressed by this Court in Rose.

Justice Anthony Kennedy: Oh, that -- if we're looking at Crooker, I just read the words "would there be circumvention", and it seemed to me in this case the Navy has plans and they use those plans to store munitions safely, and the risk that they worry about is someone will get ahold of the plans and use the positions of those munitions in order to make them unsafe, for example, blowing them up.

So that seemed like a very serious circumvention of what the regulation was there for.

Mr. Mann: But not by the regulator.

Justice Stephen G. Breyer: That's correct, and I didn't find anything in Crooker that said -- and I don't know why you would have such a theory.

I don't know what the point of the theory would be, that you would care whether blowing up took place by somebody who technically was regulated by the Navy or blowing up took place by some other person, whom they are worried about.

Mr. Mann: Because the basis -- it's -- the basis for that is, again, this Court's language in Rose, where it looked at -- again, we are going back to a very few words in the House report, and the House report is looking at these guidelines and manuals of procedure for government investigators or examiners.

This Court took that language and looked at it and pointed to -- well, and it's a logical extension, that if we are looking at it from these investigators or examiners, what we are concerned about is people being investigated or examined.

So you don't see that expanse here.

And again, it's coming back to the basis of this material shouldn't be under (i)(2).

We can discuss and debate the merits and safety of these maps.

This is, again, a map.

It's not the operating guidelines, the Operating 5 manual.

That's not what was requested and not what is before you, but what is before you is the map, the map which shows that the largest target, no surprise, is the loading dock.

The loading dock, we have the materials in the joint APPENDIX from the -- the base information, proudly discussing that loading dock and how visible a signal that loading dock is.

Justice Samuel Alito: Do you have any reason to -- just out of curiosity, do you have any reason to believe that the current version of the ESQD map is different from the one that was published in the newspaper previously?

Mr. Mann: We do not know, Your Honor.

There are -- there are identified, I believe it was 14, but I may be incorrect, separate maps in the Vaughn index.

We know, if you read the portions that we have from the Operating 5 manual say they can move munitions around as long as they stay within the confines of the ESQD map, but it appears the map can be amended.

And again, that's the prevailing question here, is we are talking about public waters, private land around the base, and whether or not that land stays secure.

That's the great significant public interest here, is we have a city within a mile and a half of this base and of this very visible loading dock that can be seen from everywhere on the waterfront, restaurants in town.

This loading dock stands out.

So whether that map changes over time would be important to know.

If there is no further questions, I would like to reserve a couple minutes.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Yang.

ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF THE RESPONDENT

Mr. Yang: Mr. Chief Justice, and may it please the Court:

Petitioner has asked this Court to disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies and the courts since the D.C. Circuit's en banc decision in Crooker.

Justice Sonia Sotomayor: Could you tell me what the textual basing for Crooker's "predominantly internal" and "circumvention of agency regulation" requirements is?

Where in the text are those words and how do you create them except through sort of judicial crafting?

Mr. Yang: Well, I think the -- as our brief explained, there are three basic elements to Exemption 2.

The first is the internal element, and we believe that means that the records at issue must be properly maintained within an agency and not for general release.

Justice Sonia Sotomayor: The problem with that in this case is that it's a mixed document.

It is predominantly for internal use, but not exclusively.

Mr. Yang: Well, I think--

Justice Sonia Sotomayor: So how do you square that with the words "related solely to internal"?

Mr. Yang: --Right.

If I could just finish the internality and then talk about how it relates solely, how it relates to, I think that would be probably easiest.

Internal and when a document is properly held within an agency as internal reflects the FOIA balance that's at issue throughout the exemption.

It involves the balance between the public interest in knowing information about the government and the need for the government to maintain certain things in confidence.

And in this context Rose addressed two other contexts.

Rose explained that when there is no legitimate public interest, things may be properly internal.

There is simply no reason to disclose it.

Justice Sonia Sotomayor: Well, the case summaries there were internal solely.

They were created only for purposes of the agency's honor code review or discipline review.

Mr. Yang: Well, if it was--

Justice Sonia Sotomayor: And yet we ordered it disclosed.

We created an exception to the plain language of the rule, it seems to me.

Mr. Yang: --Well, I don't believe this Court created an exception to the statute.

I think what the Court did was construe the statute and, although it's not clear from the text of Rose exactly the textual foundation for that decision, I think it is best read as turning on the internality.

And understanding what is properly internal under Exemption 2 must be understood in light of what FOIA is doing and what the legislative history suggests for the exemption.

And so what we--

Justice Sonia Sotomayor: Oh, I agree.

But I think the distinction it made was that it's only internal rules and practices of the agency, personnel agency, if the public has no legitimate interest in it.

Mr. Yang: --I think it said that that's the case where there is no countervailing interest on the other side.

At least where there is no risk of circumvention, is what the Court was saying.

What we have here is a different FOIA balance.

What we have here is something strong on the government interest side.

There are certain things that just cannot be disclosed to the public and have the government function well.

This is one of these.

This would be the location, type, amount of munitions stored on a Naval facility.

Justice Ruth Bader Ginsburg: Mr. Yang, the information about location I thought was disclosed, where these explosives were stored.

Mr. Yang: There is -- for instance, the appendix includes a map of buildings.

It doesn't explain where munitions are stored.

Justice Ruth Bader Ginsburg: But we know they are in the building.

We may not know--

Mr. Yang: Maybe not in every building.

What you know is there are buildings and there are sites, but you don't know which ones, how much, the types of munitions.

And what we are talking about is more than a map.

What we are talking about is more generally the ESQD information in the records, which includes--

Justice Ruth Bader Ginsburg: --I thought that that information was given out for the Bangor facility.

Mr. Yang: --There appears to have been a release, and the record does not provide us detail as to why, before 9/11 by the Bangor facility of some arcs.

Now, it's important to know that arc maps have different levels of importance.

For instance, you might have an arc map around a bomb squad on a base, because bomb squads need to maintain a small amount of munitions, but that arc isn't particularly sensitive.

So arc maps might be released in certain contexts, and the Navy here actually does conduct a case-by-case balancing to see whether or not it would be appropriate to release this information.

Here what we do know is that the Navy looked at the arc maps here, which are highly sensitive maps, as well as the associated ESQD information, and determined that releasing this information would provide a road map to those with bad intent to circumvent the very safety procedures that--

Justice Ruth Bader Ginsburg: Have you compared the two situations, in Seattle and in Bangor?

What -- because--

Mr. Yang: --Our brief briefly addresses this.

I believe it's footnotes on page -- footnote 5 on page 8.

And what we can say from the record is that the Navy looked at the material here, explained that Bangor is a single weapons facility, involves a much more simplistic storage and safety security problem than the Naval Magazine Indian Island.

And also, I would--

Chief Justice John G. Roberts: Why, if these maps are so sensitive as you suggested, why weren't they classified?

Mr. Yang: --Well, it's difficult to classify when you need to share in limited circumstances with local responders.

The Navy here has shared--

Chief Justice John G. Roberts: I'm sorry, I don't understand that.

It's different to classify when?

Mr. Yang: --When you classify a document, it restricts access to people with a Federal need to know, people who have been adjudicated as eligible to receive classification, received the proper training.

The Navy in this instance needs to share limited arc information with the local fire department and the police department to make plans for in the event of an emergency.

And that was shared in confidence with these local force responders and was unfortunately disclosed without our authorization.

Chief Justice John G. Roberts: Well, surely you classify documents that are shared outside the Federal Government?

Mr. Yang: That is true in certain circumstances, but there are other--

Chief Justice John G. Roberts: Would you classify these maps after -- I mean, assume that you don't prevail, could you then classify these documents, preventing their release before they are released?

Mr. Yang: --Well, if the Court were to provide us with the opportunity, I think the Navy could consider that--

Chief Justice John G. Roberts: Isn't it the case when a government agency has to go through its records in response to a FOIA request and comes upon records that would otherwise be disclosable, they can at that point say we are going to classify this so we don't have to disclose it.

Mr. Yang: --The relevant executive order that governs classification does allow classification of materials which have been disseminated beyond the Government.

But there are certain thresholds that have to be met.

I am not an original classifying authority, so I would not be in a position to say whether these types of things could be classified in this instance.

It is at least theoretically possible.

But what I want to underscore is that the reason that these materials are not classified in this instance is because it is important to share with the local fire department.

Now, the local fire department--

Justice Samuel Alito: There is a document on the FBI web site called

"Security clearance process for state and local law enforcement. "

which seems to address exactly the situation in which there is a need to -- it says:

"It is the policy of the Federal Bureau Of Investigation to share with law enforcement personnel pertinent information regarding terrorism. "

"And it provides a procedure for sharing that classified information. "

Mr. Yang: --It is -- I don't mean to suggest that only Federal Government employees can have classification.

You can -- you have contractors.

There are instances where you can classify material and share it with nonfederal entities which have been given appropriate clearances.

Chief Justice John G. Roberts: It seems to me you're asking us to do your job.

You have got to go through these documents and say, you are telling us how sensitive these are and therefore it would harm the national interest if they have to be disclosed.

If that's true you can classify them and, instead of coming to us and saying you should torture the language in FOIA, to allow us to determine that this is sensitive to the national interest and therefore should be disclosed.

Mr. Yang: I don't believe that we are asking the Court to torture the language of FOIA.

We think that we have a fair reading, by no means an unambiguous reading of the statute, but a fair reading of the statute, and it is a reading that has prevailed for almost 30 years now.

Justice Elena Kagan: So can we talk about that reading, Mr. Yang?

Let's talk about the meaning of the statute.

The key word, key term, is "personnel rules and practices".

If I said to you, what's a personnel file, what would you say?

Mr. Yang: It depends on context.

You may be referring to Exemption 6.

Justice Elena Kagan: It could be referring to Exemption 6 or it could be referring to just generally in a conversation.

Your personnel file, what does it mean?

Mr. Yang: Well, in the context of Exemption 6 I think it refers to files pertaining to personnel.

Justice Elena Kagan: Can you think of another context in which it means something other than that?

Mr. Yang: I think the term, the phrase "personnel file" itself is normally referred -- normally used to refer to personnel.

Justice Elena Kagan: It's a kind of H.R. file, right?

Mr. Yang: That's generally true.

Justice Elena Kagan: So why should there be any difference if you look at the term H.R. files and practices.

Mr. Yang: Well, it's certainly one reading.

We think that personnel rules and practices of an agency can fairly encompass instructions that you provide the personnel.

For instance, if you were to instruct the personnel that they are to appear at work at 9 and leave at 5 or they are to perform a certain number of duties, ten cases per day, or you need to process these cases in a certain manner -- all of those I think would be fairly characterized as personnel rules and practices of an agency.

Justice Antonin Scalia: All the rules of an agency would -- would -- would be sucked in, wouldn't it?

Mr. Yang: Well, no, I think--

Justice Antonin Scalia: All the rules the agency promulgates are supposed to be enforced by the personnel of the agency.

Mr. Yang: --I think so--

Justice Antonin Scalia: So they become personnel rules and practices.

Mr. Yang: --The focus on personnel in the statute helps to distinguish between rules and practices which govern personnel, and rules and practices which also are there to govern the public in its interactions with the agency.

And this goes back to the question that we initially started on.

"Relates solely" when you are related solely to the internal personnel rules and practices of the agency, it -- it extends just beyond just the rules and practices of themselves, but it makes sure that the focus solely is still on personnel.

So there are things -- for instance, if the rule is that you need to file a FOIA request in a certain way, and the agency instructs personnel to process it in a certain way, those rules also would affect the public.

The public would need to comply.

If there is a dual purpose, a dual function of the rule or practice, it would not relate solely to the internal personnel rules.

Justice Sonia Sotomayor: Well, that begs, I think Justice Scalia's question.

One could argue that everything that the agency develops except rules telling the public how to come to the agency with a complaint, et cetera -- virtually everything will govern either the internal personnel practices or the agency's practices vis-a-vis the public.

Mr. Yang: But not everything that the agency does will relate solely or exclusively to govern the internal personnel -- the rules and practices for personnel.

When there is a dual function, that is it both instructs personnel how to do their duties and it's also something that the public must take into account--

Justice Anthony Kennedy: Well, if the -- if the agency has a rule that says put explosive A in building 1 and put explosive B in building 2, that's hard for me to explain that it's just a personnel rule, other than, as Justice Scalia says, everything, all functions have to be undertaken by humans.

Mr. Yang: --Well, I -- I don't know that I would agree with that.

I think the personnel rules and practices that are at issue here are a complex set of rules that are based on types of munitions, the--

Justice Anthony Kennedy: Well, what about my hypothetical?

Why -- why is that a person -- primarily or solely a personnel rule?

Mr. Yang: --Because it is a rule that pertains to personnel.

It is a rule that governs the personnel's discharge of their duties.

And if the--

Justice Anthony Kennedy: But that goes back to the point that -- I forgot about a computer age, but, forgetting that, humans have to do most things now.

Mr. Yang: --That is true.

Humans -- and we still do, thank goodness, do things.

But the focus of the exemption in context -- the exemption applies to matters that relate solely to the internal personnel rules and practices of an agency.

Personnel helps to focus the inquiry on the rules, and again only relating solely, on rules that govern agency personnel, as opposed to rules that might govern those personnel and govern the public's interaction with the agency.

That's the--

Justice Antonin Scalia: I suppose the Office of Personnel Management has a pretty broad charter, then, on your theory of what the adjective means.

OPM must be a very powerful agency.

[Laughter]

Mr. Yang: --Well, I -- it certainly is.

[Laughter]

But I think what we are saying is that personnel can have different meanings in different contexts.

Justice Ruth Bader Ginsburg: --Can we go back to the origin of the Exemption 2?

I thought there was a concern in Congress that under the APA section 3 was shielding too much from the public, and so they wanted to have a narrower category.

Now, listening to you, I really don't see how we have something that's narrower, -- narrower than the old section 3 of the APA.

And if you can give me an example, this is what the APA shielded that would not be shielded under section 2, maybe I would--

Mr. Yang: Well, there were -- I can give you a few examples from the legislative history, for instance.

One of the problems that Congress was concerned with is that the old exemption, exemption in section 3, had been construed to apply to internal management, including things such as phone books, agency phone books for personnel.

That would no longer be encompassed.

Things like budgets that the agency produces, that arguably would be internal management, that would not be under the internal personnel rules and practices of the agency.

And I think it's important to remember that when Congress drafted this statute, it initially started with internal personnel -- or excuse me, internal employment rules and practices and changed that to personnel.

In the report that effectuated that change, the explanation and the only explanation was that that change was similar -- made the exemption similar but more tightly drawn than the APA's management exemption, which at the time existed in another part of the statute; there was a cross-reference.

When Congress then continued to revise the statute, the House made very clear in the hearings, in the House Report and on the floor that its intent was to cover these types of rules and manuals and instructions to agency personnel when doing so would risk the functions that are at issue here.

And when Congress in 1986 amended FOIA by adding -- or amending Exemption 7 E, it ratified the existing rule.

And it did so because -- it ratified it and it had to -- it extended it in two important ways.

Crooker left open the question or at least made it vague as to whether prosecution guidelines would be protected by Exemption 2.

The reason that was unclear is because the D.C. Circuit had previously concluded in Jordan that Exemption 2 did not apply.

Crooker rejected all of Jordan 's rationale but the someone enigmatically said, but we would reach the same result.

Justice Ginsburg's concurrence explained in Crooker that this muddied the waters, and when Congress revisited FOIA and Exemption 7(E), it specifically provided an exemption for law enforcement investigations and prosecutions.

In doing so it made clear that whatever existed of Jordan was gone.

It also did something else--

Chief Justice John G. Roberts: I would have thought that the amendment to Exemption 7 really cut the other way.

They amended Exemption 7, they didn't amend Exemption 2.

Mr. Yang: --Well, they amended Exemption 7--

Chief Justice John G. Roberts: To adopt more or less Crooker, right?

Mr. Yang: --To adopt Crooker in certain areas.

Chief Justice John G. Roberts: Yes.

Exactly, not this one.

Mr. Yang: No, I think what it did is it took Crooker as understood, but what it did with respect to law enforcement records -- and remember it's only records compiled for law enforcement purposes that would disclose techniques, procedures or guidelines for investigations or prosecutions.

In that context, Congress lowered the bar.

It provided more protection for those law enforcement records than Crooker did.

This is part of what Congress was doing in Exemption 7 more generally, and this Court's decision in Reporters Committee discusses this.

Before '86 Exemption 7 applied where disclosure would cause a bunch of these harms, these enumerated harms.

Congress changed 7 to 7(E) where -- with respect to the guidelines provision.

When guidelines for law enforcement investigations or prosecutions could reasonably be expected to circumvent the law, that's what the exemption covers.

In doing so it's providing -- Congress decided to extend Crooker.

It extended the protections by lowering the bar in '86, and it also as we have discussed did so to specifically address the DC's Circuit's decision in Jordan, or at least what might have been left of that after Crooker.

We see that as simply building on the back of Crooker, and it did so specifically in the -- the law enforcement context but it did so with the context that Crooker had properly understood Exemption 2.

And it's important to remember that law enforcement context in Exemption 7(E) will only apply in a certain subset of instances.

It has to be compiled for law enforcement purposes.

It has to be -- disclose techniques, procedures or guidelines for law enforcement investigations or prosecutions--

Justice Stephen G. Breyer: What happens -- I'm just curious.

If you classify -- suppose you have a document,

"in case of emergency, these are the evacuation procedures. "

of a big Federal building.

And now you want to show that to the firemen but you don't want it to be in the newspaper.

Right?

And the firemen don't have classifications and they were not cleared.

Mr. Yang: --Right.

Justice Stephen G. Breyer: But I guess in order to see it they would have to be cleared.

Mr. Yang: They would have -- right.

Justice Stephen G. Breyer: How long does it take, approximately, roughly, to clear a fireman so that he could, in fact, see the evacuation manual from the Federal building.

Mr. Yang: I don't know exactly.

Justice Stephen G. Breyer: Could you give me a rough idea?

Mr. Yang: This is going to -- I'm going to speculate a little bit on this, but -- and if I am wildly off, I will let the Court know.

I think it's on the order of six months, but it could be longer.

Chief Justice John G. Roberts: For what level of classification?

I gather the investigation of the person is quite different depending upon what level you want, if you want to give--

Mr. Yang: I think that's for the basic secret, but I would have to -- again, I don't have a precise answer for the Court, and we could provide a more fulsome answer after--

Chief Justice John G. Roberts: --The lower things below secret--

Mr. Yang: --Right.

Chief Justice John G. Roberts: --Are those sufficient classifications to prevent disclosure under FOIA?

What is it, sensitive--

Mr. Yang: Confidential, I believe.

Chief Justice John G. Roberts: --So if you label something confidential, you don't have to disclose it under FOIA?

Mr. Yang: Right.

But classification is not something that the executive can do, of course, just willy-nilly.

There are certain criteria that have to be satisfied and there are certain practical storage access requirements that come with classification.

Justice Samuel Alito: Do you think it's practical to classify all of the information that might have security implications?

Mr. Yang: I think it's difficult.

Justice Samuel Alito: Architectural designs, passwords.

Mr. Yang: I don't think if we go that far it is practical.

Plus, in many contexts, there won't have -- there won't be national -- cognizable injury to the national security, which is the touchstone for classification.

So there are things -- you know, there are many types of information out there -- for instance, internal procedures regarding computer security for agencies -- that just would not normally be thought of as something that is classified.

Agencies also provide guidance to personnel; for instance, in screening Medicare claims that come in.

Chief Justice John G. Roberts: I'm sorry.

You wouldn't regard internal security procedures for computer systems as confidential?

Mr. Yang: Not classified as confidential.

In order to be classified, there has to be a determination by the original classifying authority of many things, but among other things, it has to show that disclosure of the information could reasonably be expected to damage the national security.

Justice Anthony Kennedy: Would you classify those as internal procedural rules -- personnel rules?

And would you also classify architectural specifications as internal personnel rules?

Mr. Yang: It depends on context.

I think the computer security instructions to personnel, how you access and what criteria you must build your computer systems to be secure at, I think that would be deemed as internal rules and practices for -- of an agency.

Justice Anthony Kennedy: What about architectural specifications?

Mr. Yang: It can.

I mean, I think it's a little misleading to talk about architectural specifications or maps.

Those are simply methods by which you convey information.

You could also write things out longhand.

It would take a lot longer, but you could write out the same information longhand, so long as it fits within the rubric of internal personal rules, rules and practices of an agency; that is, it is providing guidance, it is providing rules and practice for the agency personnel to follow in conducting the agency's functions.

It could well be deemed to fall within exemption 2.

Not everything would be, but certain things can.

Justice Sonia Sotomayor: So basically anything that the agency uses to craft its internal employee practices and rules gets swept up as private, as internal?

Mr. Yang: No, no, no, no.

Justice Sonia Sotomayor: If -- if--

Mr. Yang: It certainly would be personnel rules and practices of an agency to be properly deemed internal.

That's where the circumvention prong comes in of Crooker, and we believe that in order to be properly deemed internal, the disclosure would significantly risk circumvention of the agency's functions.

Justice Sonia Sotomayor: --So you are taking out the records related to personnel and not making it a condition of the disclosure.

You are saying if any document circumvents the agency's functioning, that is exempted.

You are not tying -- that's where I'm--

Mr. Yang: If I gave that, and if I said so, I certainly didn't mean to give that impression.

There are two different--

Justice Sonia Sotomayor: --How do the documents that the agency reviews to determine and craft its internal rules and practices fall under the rubric of being related to, solely related to, personnel practices and rules?

If they were created separately, if they were created for multiple purposes, if they were used in different circumstances besides the relationship of employees to others--

Mr. Yang: --I -- to bring us to, maybe, this case, to give an example, this case involves the ESQD information for Indian Island.

That information is a personnel rule and practice of the agency, or is related to it, because it tells the Navy's personnel how to store, how to move, how to--

Justice Sonia Sotomayor: --The map doesn't.

You use the map to do the latter things.

Mr. Yang: --Well, I guess it's a question of how you convey that information.

If you said you can't get within 1,000 feet of point X and wrote that out as an instruction, that's one way to do it.

The map is another way to do it.

Justice Sonia Sotomayor: Do you see -- I'm sorry.

I'm cutting you off because your light is on.

Do you see any difference between the position you are taking and Crooker?

Mr. Yang: No.

Justice Sonia Sotomayor: We formulate your test very differently than Crooker does.

What are those differences?

Mr. Yang: I think it's essentially the same, and let me tell you why.

Crooker uses the predominant internality test, right?

And there's essentially two things that the Court is getting at there.

It says that that means that the agency function at issue can have an impact beyond the agency.

That was kind of one aspect of it.

And two, the Court was concerned about not having secret law; that is, things that the public would have to know and use in interacting with the agency.

We think that that's essentially the same thing that we're doing.

Justice Elena Kagan: Mr. Yang, if -- if we assume that a majority of this Court finds this statutory interpretation untenable and that you lose, but that the Court is also concerned about the government's reliance interests here, and about this set of documents that have been exempted under exemption 2 that would become unexempt, is there anything that the Court can do about that?

Is there anything that the government would need to -- to advance -- to deal with those reliance interests?

Mr. Yang: You are assuming that we lose the case entirely.

Justice Elena Kagan: I am assuming, yes.

That's just an assumption.

Mr. Yang: All right.

That's not an assumption I like to deal with often, but I think if the Court were to rule against the government on all respects, I think that that would leave us with the option of returning to Congress.

This Court, of course, is free to opine on--

Justice Stephen G. Breyer: You couldn't return to Congress if you had to classify documents falling into the category that you previously thought, dealt with in Crooker.

How long would that take?

How many documents would you guess there were in the Federal government?

Millions?

Thousands?

Mr. Yang: --There is a very large number of documents where disclosure would circumvent the very agency functions at issue, not all of which, and perhaps very many of which, would not be able to be classified.

Chief Justice John G. Roberts: And all of which you already have to review to compile the Vaughn index and to make sure there are not other exemptions that are applicable, right?

You don't just grab a bunch of files and turn them over.

You look at them before you release them under FOIA.

Mr. Yang: That's true.

It's just that the exemption 2 serves a unique and important function.

Justice Stephen G. Breyer: That wasn't my question.

My question did not concern those documents that were requested.

It concerns the documents that might be requested, which is every document that might be requested.

And I wonder if it ranges into the millions, tens of millions, hundreds of thousands, 5,000, or if it--

Mr. Yang: It would be a very large number of documents, and it would not be practical to take those case-by-case and then of those that might have some national security interest, go--

Chief Justice John G. Roberts: You don't have to go through everything.

You have to go through the material that is requested, and you go through that material already.

Mr. Yang: --We do.

There is a very large number of FOIA requests.

Chief Justice John G. Roberts: And it takes forever to get the documents.

Mr. Yang: The statute -- we are not usually complying with the statute's 20-day turnaround.

That's correct.

The -- I think I ought to just note two more things.

Petitioner's reading of the legislative history, I think, needs to be corrected in two respects.

The 1964 Senate report that Petitioner relies upon talks about rules regarding parking, lunch hours, and sick leave.

That does not concern exemption 2.

That provision is regarding what ultimately became section 552(a)(C)(2).

Justice Samuel Alito: Could I just nail down one particular point?

It is the view of -- you are representing the government, and it is the view of the government that classification is not a practicable solution to the problem that is highlighted here.

Mr. Yang: Correct, because not all the documents here, even if there was time to review them, would fall within -- excuse me, not in this case, but within the matter of exemption 2 -- would not be able to be -- exemption 2 addresses a special problem.

It addresses the problem of releasing documents where the very release would frustrate the function of having those documents in the agency -- for the agency.

And so there is no other exemption that does that.

And requiring Congress -- remember, this has been the way this has worked for almost 30 years.

There would have to be a very large number of Exemption 3 statutes, Congress would have to go and enact them one by one.

It's not a feasible solution.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Mann, you have four minutes remaining.

REBUTTAL ARGUMENT OF DAVID S. MANN ON BEHALF OF THE PETITIONER

Mr. Mann: The two points I would like to focus again on, coming back to, is the word "personnel matters".

When this case came to me, my client told me that he could not get these maps that he had gotten previously because the Navy was classifying them as personnel documents.

What is my reaction as a lawyer?

What?

What are you talking about?

I can read the language of this statute.

It's talking about a narrow exception, which is exactly what Congress set up.

Nine narrow exceptions.

The one open-ended one is the one that Congress kept for itself, Exemption 3.

If the Navy doesn't believe that these documents can be or should be classified, but the Navy doesn't want to release these documents for some reason, then the Navy's recourse is to go to Congress as other agencies have done and seek a special protection for these documents.

But it's not to distort the words "personnel practices and rules" to expand to every document that is used by personnel.

And that is precisely what the Navy is asking for on page 51 of their brief and we responded to it in our reply.

They are looking for an exemption that covers a wide range of information concerning internal rules and practices where disclosure would risk circumvention and where other FOIA exemptions are unavailable.

They are asking you to create for them what they -- what Congress wouldn't give them in 1964 or '66, broad discretion.

And it doesn't belong.

It certainly doesn't belong under the very narrow Exemption 2.

If there are no other questions, I am complete.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Elena Kagan: The Freedom of Information Act, better known as FOIA generally requires the Federal Government to make its records available to the public on request.

But FOIA contains nine exemptions, nine categories of material that the Government does not have to disclose.

In this case, concerns the meaning of one of those exemptions, Exemption 2.

According to that exemption, the Government need not disclose records that relates solely and I'm quoting now, "that relate to the internal personnel rules and practices of an agency".

Now this case started when the Navy received a FOIA request for something called Explosive Safety Quantity Distance Information for a naval base in Puget Sound, Washington.

That's a $10 term but what it means is this, the Navy stores explosive at the space and in order to make sure that the facility is as safe as possible, Navy personnel use various data and maps to show the effect of an explosive device going off.

That information enables them to store the explosives so that even if one does go off, it won't set off a chain reaction.

And the FOIA request here was for those explosive maps and data.

The Navy denied the request based on Exemption 2.

The Ninth Circuit upheld the Navy's action, but we reversed.

The Navy maybe able to withhold these explosives maps under some other exemption, but it cannot do so by relying on Exemption 2.

The text of Exemption 2 compels these results, records relating the personnel rules and practices, and that's the key phrase, are records that concerned employee relations and human resources matters.

This is just a matter of ordinary language, the meaning of the word "personnel" as used in the Exemption to modify rules and practices.

All of us can think of similar uses of the term personnel.

A personnel department deals with employee relations and problems.

A personnel agency helps place people in jobs.

And the personnel file which is a term FOIA also uses in another exemption is the file containing information about an employee's work history.

In all of these cases, the word "personnel" is a synonym for HR or Human Resources.

Congress meant the same thing here.

Personnel rules and practices are rules and practices relating to the conditions of employment in federal agencies, hiring and firing, work rules and discipline, compensation and benefits.

So for example, if an agency record has to do with employee pay or parking or vacations, it falls within the exemption.

But almost needless to say a record about the effects of detonating an explosive device does not.

And so the Navy cannot withhold these records under Exemption 2.

The Ninth Circuit held otherwise in reliance on an old DC Circuit decision that adopted a much broader interpretation of Exemption 2.

Under that decision, the Government could also withhold any internal materials whose release would risk circumvention of law.

Today, we reject that interpretation as inconsistent with Exemption 2's text and its purpose.

We recognized that the Government may have good reasons to protect these explosives maps and other similar materials and we do not say today that the Navy must release these records.

Other FOIA exemptions may shield them.

The Navy argued below that Exemption 7 which protects certain law enforcement records applies to the explosive data and that argument remains open to the Government on remand.

In addition, Exemption 1 prevents access to classified documents.

That exemption ensures that the Government can withhold documents whose disclosure would compromise national security.

We hold today just one thing that the government cannot withhold these records on the basis of an exemption that covers and was meant to cover only employee relations matters.

Justice Alito has filed a concurring opinion and Justice Breyer has filed a dissenting opinion.