The Freedom of Information Act (FOIA) requires federal agencies to make records available to the public, subject to nine exemptions. In March of 2011, the U.S. Supreme Court issued two opinions significantly limiting the use of two of those exemptions. In Milner v. Dep't of the Navy, the Supreme Court rejected the broad application of Exemption 2, which protects from disclosure material "related solely to the internal personnel rules and practices of an agency." Justice Elena Kagan, writing for an 8-1 majority, held that the exemption shields only those records relating to employee relations and human resources issues.
For over 30 years, courts have differentiated between "Low 2" for human resources and employee relations records and "High 2" for records whose disclosure would risk circumvention of the law. At issue in Milner was the Navy's withholding of maps showing the extent of expected damage from a hypothetical explosion at a western Washington ammunition dump. The Navy withheld the maps under the judicially-created High 2 exemption. The District Court granted the Navy summary judgment, and the Ninth Circuit affirmed. The Court granted certiorari to resolve a circuit split over the correct application of Exemption 2.
Reversing the Ninth Circuit, the Court categorically rejected the use of High 2 as an inappropriate justification for withholding documents that did not relate to employee relations and human resources. It explained that Exemption 2 only shields records relating to "personnel rules and practices" and that "personnel" refers only to human resources matters. Reasoning that the "the only way to arrive at High 2 is by taking a red pen to the statute," it held that "Low 2 is all of 2 (and that High 2 is not 2 at all)." The Court also emphasized that High 2 flouted FOIA's "goal of broad disclosure" and that the FOIA exemptions must be "given a narrow compass." The Court recognized that while the Navy may have a strong interest in protecting such documents from disclosure, it must use other applicable exemptions such as 1 (classified documents), 3 (records exempted by other statute), or 7 ("information compiled for law enforcement purposes" – the release of which may threaten the nation's vital interests). Finally, the Court rejected Justice Breyer's dissent, in which he argued High 2 should continue simply because it "has been consistently relied upon and followed for 30 years."
Then, in FCC v. AT&T, the Supreme Court unanimously held 8-0 (Justice Kagan did not participate) that personal privacy rights do not apply to corporations under FOIA Exemption 7(C). Exemption 7(C) covers law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Writing for the Court, Chief Justice Roberts held that: "When it comes to the word 'personal,' there is little support for the notion that it denotes corporations, even in the legal context." The Court reversed the Third Circuit's opinion that would have allowed AT&T to block the release of information from the FCC under FOIA sought by a competitor concerning AT&T's past overbilling practices compiled during an FCC investigation. It distinguished the case from Exemption 4, which protects "trade secrets and commercial or financial information." In an opinion otherwise devoted to the finer points of grammar and statutory interpretation, Roberts quipped in his conclusion: "We trust AT&T will not take it personally." The decision is significant in light of the 2010 landmark 5-4 decision in Citizen's United v. FEC, in which the Court found that limits on corporate campaign contributions violated a corporation's free speech rights.
In short, the Court's decisions in Milner and AT&T promote FOIA's intended goal of broad disclosure. The Court has returned Exemption 2 to its original form, limiting it to documents concerning employee relations and human resources issues, and has limited the scope of the personal privacy Exemption 7(C) to only individuals, not corporations.