[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Milner v. Department of the Navy [oral arguments transcript, PDF] on the ability of the government to withhold information under the Freedom of Information Act (FOIA) [text]. The issue is whether 5 USC § 552(b)(2) (Exemption 2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the “High 2” expansion created by some circuits but rejected by others. Petitioner Glen Scott Milner filed two FOIA requests for information about a US Navy magazine near his home, but the Navy withheld certain documents under Exemption 2. The US Court of Appeals found [opinion, PDF] in favor of the Navy, ruling that Exemption 2 encompasses two exemptions—the “Low 2” exemption, which covers ordinary employment matters, and the “High 2” exemption, which covers materials whose “disclosure may risk circumvention of agency regulation.” Counsel for the petitioner argued four main points:

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.

Counsel for the respondent argued that “[p]etitioner 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.”

Also Wednesday, the court heard arguments in Virginia Office for Protection and Advocacy v. Stewart [oral arguments transcript, PDF; JURIST report] on whether the Eleventh Amendment [text] prevents an independent state agency from bringing an action in federal court against state officials to remedy a violation of federal law. The state of Virginia participates in a federal program designed to detect abuse and neglect at state-run medical facilities. The petitioner is the state agency given oversight over the medical facilities and is seeking access to records relevant to the deaths of two individuals who were residents of the state-run facilities. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that the suit by the petitioner was barred under the Eleventh Amendment and did not fall within the Ex parte Young [opinion text] doctrine.