- This article is part of a series on Exemptions
- 1 Introduction
- 2 Text of Exemption 2
- 3 History of the High 2/Low 2 Distinction
- 4 Scope of Exemption 2
- 5 Strategies for challenging Exemption 2 withholdings
- 6 Discretionary Release
- 7 Recent district court opinions on Exemption 2
- 8 References
Exemption 2 permits an agency to withhold from mandatory disclosure records “related solely to the internal personnel rules and practices of an agency.” The exact scope of what is covered under Exemption 2 was the subject of much legal debate after a controversial appeals court decision from 1981 that recognized an expansive reading of Exemption 2. This court’s interpretation, which recognized what was referred to as the “High 2” exemption, was ultimately rejected in 2011 by the U.S. Supreme Court in Milner v. Department of Navy.
Text of Exemption 2
See also Text of the FOIA
(b) This section does not apply to matters that are— [...]
- (2) related solely to the internal personnel rules and practices of an agency;
History of the High 2/Low 2 Distinction
In Milner, the U.S. Supreme Court resolved a significant split among federal circuit courts of appeal as to the scope of Exemption 2, and limited the types of records for which agencies may now invoke Exemption 2.
Prior to Milner, three federal appeals courts interpreted Exemption 2 strictly, holding it applied to records “related solely to the internal personnel rules and practices of an agency” — a category of Exemption 2 materials commonly referred to as “Low 2.” For example, a court ruled that the Department of Justice could withhold under “Low 2” those portions of a Drug Enforcement Administration Agents’ manual that addressed “mere ‘housekeeping’ matters, such as instructions on filling out forms” and “procedures for requisitioning cars from the car pool.”
However, four other federal appellate courts ruled that Exemption 2 included — in addition to “Low 2” materials — “predominant[ly] internal” materials, the disclosure of which would “significantly risk circumvention of federal statutes or regulations.” This category of materials became known as “High 2.” Agencies relied on this “High 2” interpretation to withhold, for example, portions of an agency manual that referred to investigative techniques, as well as FBI symbols related to informants.
The government aggressively relied on “High 2” following the September 11, 2001, terrorist attacks. Citing the need to “safeguard sensitive but unclassified information related to America’s homeland security,” then-White House Chief of Staff Andrew Card in 2002 instructed executive agency and department heads to withhold “sensitive critical infrastructure information” under Exemption 2. Similarly, the Department of Justice issued guidance in 2001 stating that “[a]gencies should be sure to avail themselves of the full measure of Exemption 2’s protection,” and specifically noted that “High 2” could be used to withhold “a wide range of information.”
In Milner, the U.S. Supreme Court clarified that “Low 2 is all of [Exemption] 2 (and that High 2 is not 2 at all).” The Court held that the U.S. Navy could not rely on Exemption 2 to withhold data and maps that calculate and depict hypothetical munition detonation blast ranges, as the materials related to “the physical rules governing explosives” and “the handling of dangerous materials,” rather than “the workplace rules governing sailors” or “the treatment of employees.”
Scope of Exemption 2
"Personnel Rules and Practices"
In Milner the Court stated that “[t]he key word” in this exemption is “personnel,” which “refers to human resources matters.” It interpreted “personnel” in Milner by referring to its dictionary definition: “the selection, placement, and training of employees and . . . the formulation of policies, procedures, and relations with [or involving] employees or their representatives.” Further, the Court clarified that an agency cannot withhold a record such as a “file or department or practice/rule” under Exemption 2 on the basis that it “is forpersonnel” use. Instead, it must be “about personnel — i.e., that it relates to employee relations or human resources.”
With respect to the “rules and practices” covered by Exemption 2, the Court explained that they “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.” For example, information about the “use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like” would fall within this exemption, as would “matters relating to pay, pensions, vacations, [and] hours of work.”
The Milner Court did not elaborate on the requirement that the information be solely “internal,” but did say that it means that “the agency must typically keep the records to itself for its own use.” The Court cited the definition of “internal” as it appeared in a dictionary: “existing or situated within the limits . . . of something.” It noted that agencies’ “human resources documents will often meet” this requirement, as well as the next — that the records relate “solely” to internal personnel rules and practices.
Even where the records are arguably internal and relate to personnel rules and practices, Exemption 2 may not apply where there is a public interest in them. If a requester demonstrates that the records relate to a matter that is the legitimate subject of public interest, then the records arguably cannot be “solely” — defined as “exclusively or only” — matters “with merely internal significance.” Exemption 2 was designed to “relieve agencies of the burden of assembling and maintaining for public inspection matter[s] in which the public could not reasonably be expected to have an interest,” and therefore does not apply to matters that are of “a genuine and significant public interest.”
For example, in a 1976 U.S. Supreme Court case, the Court ruled that case summaries of hearings conducted by the U.S. Air Force Academy Honor Board were matters of “genuine and significant public interest,” rather than of “merely internal significance,” because the way in which the Ethics Code was administered would impact who would be selected to serve as Air Force officers. The Court explained that “[t]he implication for the general public of the Academy’s administration of discipline is obvious, particularly so in light of the unique role of the military,” as the Honor Code is “a separate discipline from that of the civilian” and its administration is tied to “the maintenance of a force able and ready to fight effectively.” The requester demonstrated government, professional, and academic interest in the fairness in the Honor Code’s administration by identifying news excerpts, an official press conference, and a White House press release related to the issue, as well as a study the requester was then conducting on the topic. You should likewise be prepared to provide the agency with similar evidence to demonstrate public and government interest in the subject of the records.
If the agency claims that a requester has not proven that there is a public interest in disclosure, they can point out that “it is the agency’s burden to establish that the information withheld is too trivial to warrant disclosure.”
In one case, a court found that an agency failed to meet this burden where it provided only one sentence to explain its withholding under Exemption 2 in a court document: “There is no public interest in the disclosure of such internal procedures and clerical information that would justify the administrative burden that would be placed upon” the agency. In that case, the court explained that the requester “need not produce dispositive evidence that there is a public interest in this information,” and remanded the case to allow the agency to explain why Exemption 2 would apply to the records. While not necessarily the requester’s burden, in order to try to convince an agency that the information is not too trivial to be released, a requester should provide it with evidence of demonstrated public interest in the subject of the records.
Strategies for challenging Exemption 2 withholdings
In appealing denials under the "personal rules and practices" portion of Exemption 2, a requester can argue that the records you seek do not pertain to rules or practices about human resources matters. For example, the Court held in Milner that while the requested records — explosives-related maps and data showing the travel distances of potential blasts — may “no doubt assist Navy personnel in storing munitions,” they did not “relate to ‘personnel rules and practices.’” Similarly, one court following Milner explained that “personnel rules and practices” records would include “workplace rules governing prison employees or the treatment of prison employees.” However, the court found the exemption inapplicable with respect to records related to “tracking and monitoring inmates,” “supervising problem inmates,” “reviewing and reporting inmate deaths,” and “responding to major incidents within prisons.”
Both before and after Milner, the U.S. Department of Justice’s Office of Information Policy advised federal agencies to grant discretionary releases of “Low 2” materials in cases where no reasonably foreseeable harm would result. For example, before Milner, the Office stated that “[i]nformation covered by ‘Low 2’ is, by definition, trivial to begin with, thus there would be no reasonably foreseeable harm from release, and discretionary release should be the general rule.” Likewise, following Milner, the agency noted that “Exemption 2 has always held great potential for discretionary releases,” and “[i]ndeed, it is often more burdensome to withhold information than it is to release it.” Therefore, arguing for a discretionary release can be an additional basis for disclosure in the event an agency maintains it has authority to withhold under Exemption 2.
Recent district court opinions on Exemption 2
- 5 U.S.C. § 552(b)(2)
- Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1065 (D.C. Cir. 1981), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011).
- Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011).
- See Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011)
- See Stokes v. Brennan, 476 F.2d 699, 702-03 (5th Cir. 1973); Cox v. U.S. Dep’t of Justice, 576 F.2d 1302, 1309-10 (8th Cir. 1978); Hawkes v. Internal Revenue Serv., 467 F.2d 787, 796-97 (6th Cir. 1972).
- Cox, 576 F.2d at 1308-09.
- See Crooker, 670 F.2d at 1053; Milner v. U.S. Dep’t of Navy, 575 F.3d 959, 965 (9th Cir. 2009), rev’d, 131 S.Ct. 1259 (2011); Massey v. Fed. Bureau of Investigation, 3 F.3d 620, 622 (2d Cir. 1993), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011);Kaganove v. Envtl. Prot. Agency, 856 F.2d 884, 889 (7th Cir. 1988), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011).
- Milner, 131 S. Ct. at 1263.
- Crooker, 670 F.2d at 1072-73.
- Massey, 3 F.3d at 622.
- Memorandum from Andrew H. Card, Jr., to The Heads of Executive Departments and Agencies (Mar. 19, 2002) (attaching accompanying Memorandum from Laura L.S. Kimberly, et al. to Departments and Agencies (Mar. 19, 2002)).
- U.S. Dep’t of Justice, Office of Information and Privacy, FOIA Post (Oct. 15, 2001).
- Milner, 131 S. Ct. at 1265 (internal citation omitted).
- Milner, 131 S. Ct. at 1266
- Milner, 131 S.Ct. at 1264.
- Id. (quoting Webster’s Third New International Dictionary 1687 (1966)).
- Milner, 131 S. Ct. at 1269 (emphasis in original).
- Id. (emphasis in original).
- Id. at 1265.
- Id. at 1267 (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965)).
- Milner, 131 S.Ct. at 1265 (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 763 (D.C. Cir. 1978), overruled by Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981), abrogated by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011)).
- Id. (quoting Webster’s, supra at 1180).
- Milner, 131 S. Ct. at 1265 n.4.
- Id. (quoting Random House Dictionary 1354 (1966)).
- Rose, 425 U.S. at 369-70. See also Office of Info. Policy, OIP Guidance: Exemption 2 After the Supreme Court’s Ruling in Milner v. Department of the Navy at 8 (2011) (“When there is a genuine and significant public interest in disclosure, the material falls outside of Exemption 2”).
- Rose, 425 U.S. at 369-70.
- Id. at 367-68.
- Id. at 368-70.
- Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1125 (D.C. Cir. 2007).
- Id. (quoting Fitzgibbon v. U.S. Secret Serv., 747 F.Supp. 51, 57 (D.D.C. 1990)).
- Milner, 131 S.Ct. at 1269.
- Kubik v. U.S. Fed. Bureau of Prisons, No. 10-6078-TC, 2011 WL 2619538 at *6 (D.Or. July 1, 2011).
- Milner, 131 S. Ct. at 1265 n.4.
- Office of Info. Policy, OIP Guidance: President Obama’s FOIA Memorandum and Attorney General Holder’s FOIA Guidelines, Creating a “New Era of Open Government,” Apr. 17, 2009.
- OIP Guidance: Exemption 2 After the Supreme Court’s Ruling in Milner v. Department of the Navy, supra at 9.