Despite High Court, Navy Keeps WA Town in Dark on Explosion Threat

February 22, 2012

If you take your case to the Supreme Court and win, you might think it would stay won. No such luck for residents near Port Townsend, Wash., who fought an eight-year legal battle with the Navy to find out whether an ammunition depot could blow them all to kingdom come.

One of them, Seattle resident Glen Milner, sued the Navy under the Freedom of Information Act (FOIA), to get information about the potential location of explosives on the Indian Island Naval Magazine near Port Townsend. The Navy denied Milner's FOIA request claiming an exemption (known as "high two") originally meant for personnel rules. Milner took it all the way up to the Supreme Court and won. The Court ruled on March 7, 2011, that the "high two" exemption that had evolved and expanded through years of case law was legally invalid and did not exist. It was a landmark decision.

The Society of Environmental Journalists had supported Milner's position by filing a Friend of the Court brief urging a narrower interpretation of the FOIA exemption.

But the Navy — never easily defeated — blew off the Supreme Court decision and switched to denying Milner's request under a different FOIA exemption.

The Defense Department bolstered its legal grounds for secrecy by asking Congress to slip into the 2012 Defense Authorization an amendment creating a new statutory exemption to FOIA for the DOD. It explicitly exempted from disclosure Defense Department information related to "critical infrastructure."

Congress passed it, and President Obama signed the Defense Authorization December 31, 2011, at a time when most of the nation was paying more attention to New Year's Eve parties. The Navy followed suit, quickly basing its continued denial of Milner's request on this new legal language.