Supreme Court Strikes Down Misuse of FOIA 'Personnel' Exemption

March 9, 2011

The U.S. Supreme Court Monday issued the second ruling in recent days narrowing exemptions to the Freedom of Information Act — and thus increasing public access to government information. In the case of Milner v. Department of the Navy, the court rejected an expansive interpretation of the FOIA exemption on personnel matters. The Society of Environmental Journalists was among the journalism groups who submitted friend of the court briefs urging a narrower exemption.

Exemption 2 of FOIA says federal agencies do not have to disclose records "related solely to the internal personnel rules and practices of an agency." Over the years, a legal doctrine had grown up expanding this exemption to include things like critical infrastructure information. The Court in essence invalidated most of what had come to be known as the "high 2" exemption, saying that it did not exist. 

In another FOIA case decided March 1, the Supreme Court ruled that corporations do not have a right of personal privacy that can prevent the federal government from disclosing records about them.

In FCC v. AT&T, the Court unanimously rejected AT&T's argument that its right of "personal privacy" should keep the FCC from releasing documents from a case in which it was accused of and investigated by FCC for overcharging customers.

While that decision advanced freedom of information, it seemed inconsistent with the 5-4 decision in Citizens United v. FEC, in which the Court held that corporations have the rights of "persons" when it comes to free speech, and can therefore spend unlimited amounts on "electioneering communications," a term with specific meaning under the McCain-Feingold Act.