Today's U.S. Supreme Court decision in Milner v. Department of the Navy marked a win for public access to government documents in all 50 states, not only in Washington, where the case began. No longer can government agencies use a broad exemption of the Freedom of Information Act to keep certain information from members of the public. But that doesn't mean hitherto unavailable documents will come flying from government files en masse. Uncle Sam still has plenty of tricks up his sleeve to keep his dirty little secrets just that.
The Navy declined to release the documents, citing Exemption 2, a '60s-era loophole in FOIA that lets agencies keep documents secret that deal with "personnel rules and practices." The exemption was originally written so government agencies wouldn't be forced to release endless pages of mundane details about day-to-day personnel matters. And for quite a while, that's all it was used for.
In recent years, however, government departments have read the exemption to mean that anything to do with personnel (basically everything) is exempted, so they don't have to release anything that they don't want to. In 2009, the Department of Homeland Security cited Exemption 2 some 70,000 times, according to Miller's attorney David Mann. This high court decision will make this practice far harder to pull off.
There are, however, plenty of other ways to keep documents secret. There are nine exemptions in all to the FOIA, which include: "Classified secret matters or national defense or foreign policy," "Trade Secrets, Commercial or Financial Information," and "Investigatory Records Compiled for Law Enforcement Purposes."
So the agency in question could simply classify the information it doesn't want released, or use any of the other less-abused exemptions--a tactic that could be easily employed in the Navy's ammunition-map case.
Indeed, the opinion, written by Justice Elena Kagan, notes:
While the Navy has a strong security interest in shielding the explosives data and maps from public disclosure, the Government has other tools at hand to protect such information: FOIA Exemption 1 prevents access to classified documents; Exemption 3 applies to records that any other statute exempts from disclosure; and Exemption 7 protects "information compiled for law enforcement purposes" if its release, inter alia, "could reasonably be expected to endanger the life or physical safety of any individual," §552(b)(7)(F). The Navy's argument that the explosives information is exempt under Exemption 7 remains open for the Ninth Circuit to address on remand. And 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. Pp. 17-18.
Thus, Miller's win may indeed go down as a larger victory for public access in general than for getting the ammunition maps he originally wanted.