Milner v. U.S. Dept of Navy ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN SCOTT MILNER, 
Plaintiff-Appellant, No. 07-36056
v.
 D.C. No.
CV-06-01301-JCC
UNITED STATES DEPARTMENT OF THE
NAVY, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
March 12, 2009—Seattle, Washington
Filed August 5, 2009
Before: William A. Fletcher, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge W. Fletcher
10347
10350 MILNER v. DEPARTMENT OF THE NAVY
COUNSEL
David S. Mann and Keith P. Scully, Seattle, Washington, for
the appellant.
Peter A. Winn, Assistant United States Attorney, Seattle,
Washington, for the appellee.
OPINION
TALLMAN, Circuit Judge:
This appeal highlights the tension between the public’s
right of access to government files under the Freedom of
MILNER v. DEPARTMENT OF THE NAVY 10351
Information Act and the countervailing need to preserve sen-
sitive information for efficient and effective government oper-
ations. Glen Scott Milner appeals the denial of a request he
filed pursuant to the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552. He sought information that would identify the
locations and potential blast ranges of explosive ordnance
stored at Washington’s Naval Magazine Indian Island
(“NMII”). The district court granted summary judgment in
favor of the Navy. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I
Indian Island is a small island strategically located in Puget
Sound near the towns of Port Hadlock and Port Townsend,
Washington. The island is used to store and transship muni-
tions, weapons, weapon components, and explosives for the
Navy, U.S. Joint Forces, Department of Homeland Security,
and other federal agencies and allied forces. The Navy is
responsible for all operations on NMII.
Magazine management and safety operations are conducted
pursuant to a Navy manual entitled Ammunition and Explo-
sives Ashore Safety Regulations for Handling, Storing, and
Production Renovation and Shipping (“OP-5 manual”).
Though the Navy considers the OP-5 manual to be restricted
information, Milner managed to purchase one section of the
manual on the Internet. The portion of the OP-5 manual in the
record of this case states:
The purpose of this volume is to acquaint personnel
engaged in operations involving ammunition, explo-
sives, and other hazardous materials, and to pre-
scribe standardized safety regulations for the
production, renovation, care, handling, storage, prep-
aration for shipment, and disposal of these items.
10352 MILNER v. DEPARTMENT OF THE NAVY
The OP-5 manual also calls for development of technical
drawings and specifications, which “should be consulted for
additional, detailed requirements.”
The technical information developed pursuant to the OP-5
manual includes Explosive Safety Quantity Distance
(“ESQD”) data. The ESQD calculations measure the effects
of an explosion at a particular location. The information is
expressed either as a mathematical formula or as an arc map,
where the center of the arc is the source of an explosion and
the arc’s periphery is the maximum area over which the force
of the explosion would reach. The Navy uses this information
to design and construct NMII ammunition storage facilities in
compliance with the safety guidelines spelled out in OP-5.
The ESQD arcs indicate the maximum amounts of explosives
that should be stored in any one storage facility, and mini-
mum distances that various explosives should be stored from
one another. This aids the Navy in storing ordnance in such
a way that the risk of chain reactions, or “sympathetic detona-
tions,” is minimized if one storage facility suffers an attack or
accident. The ESQD arcs are “designed to be a long term
planning tool for the Navy.”
Milner is a Puget Sound resident and a member of the
Ground Zero Center for Nonviolent Action, an organization
dedicated to raising community awareness of the dangers of
the Navy’s activities. On December 7, 2003, and January 29,
2004, he submitted two FOIA requests to the Navy.1 He
requested three types of documents:
1. [A]ll documents on file regarding [ESQD] arcs or
explosive handling zones at the ammunition depot at
Indian Island. This would include all documents
showing impacts or potential impacts of activities in
1
The district court found Milner’s two requests “substantially identical”
and treated them as a single FOIA request. We agree with the district
court’s assessment.
MILNER v. DEPARTMENT OF THE NAVY 10353
the explosive handling zones to the ammunition
depot and the surrounding areas;
2. [A]ll maps and diagrams of the ammunition depot
at Indian Island which show ESQD arcs or explosive
handling zones; and
3. [D]ocuments regarding any safety instructions or
operating procedures for Navy or civilian maritime
traffic within or near the explosive handling zones or
ESQD arcs at the ammunition depot at Indian Island.
The Navy identified 17 document packages totaling about
1,000 pages that met these parameters. The Navy compiled a
thorough index of the relevant documents and disclosed most
of them to Milner. It withheld only 81 documents, claiming
that their disclosure could threaten the security of NMII and
the surrounding community.
Milner filed suit under FOIA to compel disclosure of the
remaining documents related to ESQD information. Com-
mander George Whitbred, Commanding Officer of NMII, and
other officers filed detailed affidavits discussing the nature
and uses of the ESQD information. The commander’s affida-
vit specified his concern that the information, if disclosed,
could be used to plan an attack or disrupt operations on NMII.
Both parties moved for summary judgment. The Navy argued
the documents were exempt from disclosure under 5 U.S.C.
§§ 552(b)(2) (“Exemption 2”) and (b)(7)(f) (“Exemption 7”).
The district court granted summary judgment in favor of the
Navy under Exemption 2. Milner v. U.S. Dep’t of Navy, No.
C06-1301-JCC, 2007 WL 3228049 (W.D. Wash. Oct. 30,
2007). It did not reach the question whether the documents
would also be exempt under Exemption 7. Milner timely
appealed.
II
We apply a two-step standard of review to summary judg-
ment in FOIA cases. “The court first determines under a de
10354 MILNER v. DEPARTMENT OF THE NAVY
novo standard whether an adequate factual basis exists to sup-
port the district court’s decisions. If an adequate factual basis
exists, then the district court’s conclusions of fact are
reviewed for clear error, while legal rulings, including its
decision that a particular exemption applies, are reviewed de
novo.” Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th
Cir. 2008) (internal citations omitted). Both parties agree that
an adequate factual basis exists to support the district court’s
decision. They dispute only the applicability of the exemp-
tions from disclosure.
An agency bears the burden of proving it may withhold
documents under a FOIA exemption. 5 U.S.C. § 552(a)(4)(B);
U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). It may
meet this burden by submitting affidavits showing that the
information falls within the claimed exemption. Minier v.
CIA, 88 F.3d 796, 800 (9th Cir. 1996). “In evaluating a claim
for exemption, a district court must accord substantial weight
to [agency] affidavits, provided the justifications for non-
disclosure are not controverted by contrary evidence in the
record or by evidence of [agency] bad faith.” Id. (internal
quotations omitted).
III
A
[1] FOIA reflects “a general philosophy of full agency dis-
closure unless information is exempted under clearly delin-
eated statutory language.” Dep’t of the Air Force v. Rose, 425
U.S. 352, 360-61 (1976) (quoting S. Rep. No. 813-89, at 3
(1965)). An agency may withhold a document, or portions
thereof, only if the material falls into one of the nine statutory
exemptions delineated by Congress in § 552(b). Id. at 361.
These nine exemptions are “explicitly exclusive.” U.S. Dep’t
of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting
FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)). The
delineated exemptions “are to be interpreted narrowly.” Lahr
MILNER v. DEPARTMENT OF THE NAVY 10355
v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009) (quotation omit-
ted).
[2] Our concern in this case is the scope of Exemption 2.
That section exempts from disclosure matters that are “related
solely to the internal personnel rules and practices of an agen-
cy.” 5 U.S.C. § 552(b)(2). There are two categories of infor-
mation that may fall within Exemption 2’s ambit—“Low 2”
and “High 2.” Low 2 materials include rules and practices
regarding mundane employment matters such as parking
facilities, lunch hours, and sick leave, which are not of “genu-
ine and significant public interest.” See Rose, 425 U.S. at 363
(citing S. Rep. No. 813-89, at 8 (1965)); id. at 369; Hardy v.
Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655
(9th Cir. 1980).
[3] The High 2 exemption protects more sensitive govern-
ment information.2 This category applies to “internal person-
nel rules and practices,” disclosure of which “may risk
circumvention of agency regulation.” Rose, 425 U.S. at 369;
see, e.g., Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir.
1992) (holding an agency’s litigation strategy “does qualify as
‘high 2’ material because its disclosure would risk circumven-
tion of statutes or agency regulations”). Only the High 2 cate-
gory is at issue here.
B
[4] Information may be exempted as High 2 if it (1) fits
within the statutory language and (2) would present a risk of
circumvention if disclosed. See Morley v. CIA, 508 F.3d 1108,
2
This category developed from Rose, in which the Supreme Court held
that Air Force disciplinary studies were not exempt from disclosure
because they were a matter of genuine and significant public interest. 425
U.S. at 364-70. However, the Court explicitly left open the question
whether Exemption 2 would cover situations “where disclosure may risk
circumvention of agency regulation.” Id. at 369.
10356 MILNER v. DEPARTMENT OF THE NAVY
1124 (D.C. Cir. 2007) (citing Schwaner v. Dep’t of Air Force,
898 F.2d 793, 794 (D.C. Cir. 1990)). The essential question
in this case is what standard we employ to determine whether
the requested information relates sufficiently to the “internal
personnel rules and practices” of the agency, as required by
the statute. The Navy argues we should apply the “predomi-
nantly internal” standard employed by the D.C. Circuit. Mil-
ner argues our prior caselaw forecloses this approach, and that
our inquiry is limited to whether the information at issue is
“law enforcement material.”
[5] In Hardy v. Bureau of Alcohol, Tobacco & Firearms,
we addressed the question of circumvention left open in Rose.
631 F.2d at 656. We considered FOIA requests for the ATF’s
Raids and Searches manual. We joined the Second Circuit in
holding that “law enforcement materials, the disclosure of
which may risk circumvention of agency regulation, are
exempt under Exemption 2.” Id. (citing Caplan v. Bureau of
Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir. 1978)).
Hardy concluded that the instructions contained in the manual
“concern[ed] internal personnel practices” and were therefore
exempt from disclosure under Exemption 2. Id.[6] Following our decision in Hardy, the D.C. Circuit
decided Crooker v. Bureau of Alcohol, Tobacco & Firearms,
670 F.2d 1051 (D.C. Cir. 1981) (en banc). Like the plaintiff
in Hardy, the plaintiff in Crooker sought disclosure of por-
tions of the same ATF raid manual. Our sister circuit noted
that the materials sought were “law enforcement” in nature,
but went on to formulate a “predominantly internal” standard
to determine which personnel materials could be withheld
under Exemption 2. Id. at 1072-74.
[7] The D.C. Circuit undertook an extensive analysis of
FOIA’s structure and legislative history, its underlying policy,
and the applicable caselaw. It concluded that “the words ‘per-
sonnel rules and practices’ encompass not merely minor
employment matters, but may cover other rules and practices
MILNER v. DEPARTMENT OF THE NAVY 10357
governing agency personnel, including significant matters like
job training for law enforcement personnel.” Id. at 1056. To
balance the competing implications of the words “related” and
“solely,” the court settled on the modifier “predominantly.”3
Id. at 1056-57; see Schwaner, 898 F.2d at 795. The court ulti-
mately determined that documents related to personnel rules
and practices should be exempt when the materials are “pre-
dominantly internal.”
[8] The Navy argues that the Ninth Circuit’s caselaw post-
Hardy has essentially adopted this standard, or, in the alterna-
tive, that we should do so explicitly. The district court granted
summary judgment on this ground, reasoning that our cases
take such a broad view of the term “law enforcement” that
“the test they embody bears more than a passing resem-
blance” to the D.C. Circuit’s “predominantly internal” stan-
dard. Milner, 2007 WL 3228049 at *7. We agree that
Exemption 2 is not limited to “law enforcement” materials,
and now take the opportunity to formally endorse the D.C.
Circuit’s analysis, as set forth in Crooker. We hold that
Exemption 2 shields those personnel materials which are pre-
dominantly internal and disclosure of which would present a
risk of circumvention of agency regulation.
Our existing caselaw is consistent with the D.C. Circuit’s
approach. Hardy held that “law enforcement materials, the
disclosure of which may risk circumvention of agency regula-
tion, are exempt under Exemption 2.” 631 F.2d at 656. It did
not hold that only law enforcement materials are exempt
3
The court relied on Judge Leventhal’s analysis in a prior case:
[P]ushed to their logical ends, “relating” is potentially all-
encompassing while “solely” is potentially all-excluding. It
seems unlikely that Congress intended either extreme, and that
“solely” in this context has to be given the construction, conso-
nant with reasonableness, of “predominantly.”
Crooker, 670 F.2d at 1056-57 (quoting Vaughn v. Rosen, 523 F.2d 1136,
1150-51 (D.C. Cir. 1975) (Leventhal, J., concurring)).
10358 MILNER v. DEPARTMENT OF THE NAVY
under Exemption 2. The shorthand descriptor “law enforce-
ment materials” was apt in Hardy because the case concerned
policies and procedures for executing search warrants. The
Crooker court apparently understood that Hardy addressed
law enforcement materials but did not limit Exemption 2 to
such information, relying on Hardy without adopting or even
considering the use of “law enforcement” as a generally appli-
cable standard. 670 F.2d at 72. The Crooker court, like the
Second Circuit in Caplan and our panel in Hardy, used “law
enforcement” to describe the materials at issue. Id. at 1056,
1057. It went on to determine that the manuals were “predom-
inantly internal” and that their disclosure “significantly risks
circumvention of the federal statutes or regulations.” Id. at
1073-75.
[9] Maricopa Audubon Society v. United States Forest Ser-
vice, 108 F.3d 1082 (9th Cir. 1997), our most recent case
examining Exemption 2, also treated the “law enforcement”
test as merely one way to meet Exemption 2’s requirements.
Maricopa first held generally that goshawk nesting site data
does not “relate ‘solely,’ or even predominantly, ‘to the inter-
nal personnel rules and practices of an agency.’ ” Id. at 1085(quoting 5 U.S.C. § 552(b)(2)). It relied heavily on cases from
the Tenth and D.C. Circuits, both of which cited Crooker. Id.
at 1085-86; see Audubon Soc. v. U.S. Forest Serv., 104 F.3d
1201, 1203-04 (10th Cir. 1997); Schwaner, 898 F.2d at 794.
Only then did Maricopa proceed to consider, and reject, the
more specific argument that the nest site data was exempt
because it was “law enforcement” material. 108 F.3d at
1086-87. In sum, the instructive cases on Exemption 2 do not
limit the class of exempt information to “law enforcement”
materials alone. Therefore, finding information to be “law
enforcement” material is a sufficient, but not necessary, con-
dition to exemption under Exemption 2.
[10] We adopt the “predominantly internal” standard for
several reasons. First, limiting Exemption 2 to “law enforce-
ment” materials has no basis in either Supreme Court prece-
MILNER v. DEPARTMENT OF THE NAVY 10359
dent or the statute. The Supreme Court in Rose does not use
the phrase except in a footnote relating to a different FOIA
exemption. Nor does the phrase “law enforcement” appear in
the text of § 552(b)(2), which exempts matters “related solely
to the internal personnel rules and practices of an agency.” A
proper standard would combine Congress’s requirement that
the material be related to “internal personnel rules and prac-
tices” and the Supreme Court’s focus on the risk of circum-
vention of the law. Crooker’s standard properly reflects both.
As a matter of statutory interpretation, a definition of “in-
ternal personnel rules and practices” that rests solely on
whether the information is “law enforcement” material makes
little sense in light of the entire list of FOIA exemptions.
“Under accepted canons of statutory interpretation, we must
interpret statutes as a whole, giving effect to each word and
making every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent,
meaningless or superfluous.” Boise Cascade Corp. v. EPA,
942 F.2d 1427, 1432 (9th Cir. 1991).
First, other provisions of FOIA indicate Congress was con-
cerned with the disclosure of sensitive materials. Such materi-
als will usually be, by their nature, predominantly internal.
Exemption 1 covers information with a particular legal status
—classified information. 5 U.S.C. § 552(b)(1). Exemptions
7(e) and (f) exempt law enforcement materials that, if dis-
closed, would risk circumvention of the law or place individu-
als in danger. Id. § 552(b)(7). These exemptions reflect a
concern that much of an agency’s internal information could
be used by individuals with ill intent. It would be incongruent
if FOIA protected sensitive information when it is contained
in a classified or law enforcement document, but not when it
is contained in a document developed predominantly for use
by agency personnel. Cf. Crooker, 670 F.2d at 1065 (“It
would be inconsistent to no small degree to hold that Exemp-
tion 2 would not bar the disclosure of investigatory techniques
when contained in a manual restricted to internal use, but that
10360 MILNER v. DEPARTMENT OF THE NAVY
Exemption 7(E) would exempt the release of such techniques
if contained in an ‘investigatory record.’ ”).
Second, Exemption 7 protects “records or information com-
piled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). If
Exemption 2 also covers only “law enforcement” materials,
Exemption 7 is redundant. See, e.g., Gordon v. FBI, 388 F.
Supp. 2d 1028, 1036 (N.D. Cal. 2005) (discussing Exemp-
tions 2 and 7 together, applying the same standards and rea-
soning to both). Moreover, Exemption 7 contains meaningful
limitations on the use of law enforcement materials which are
not present in Exemption 2. Exemption 7 protects “records or
information compiled for law enforcement purposes,” but
only in certain situations, such as when disclosure would be
expected to interfere with enforcement proceedings, deprive
someone of a fair trial, or expose a confidential source. 5
U.S.C. § 552(b)(7). Applying a general “law enforcement
materials” test under Exemption 2 renders meaningless the
conditions that Congress has placed on non-disclosure of law
enforcement materials under Exemption 7.
Congress has impliedly approved of Crooker’s approach.
The Freedom of Information Reform Act of 1986, Pub. L. No.
99-570, subtit. N, 100 Stat. 3207, 3207-48 (1986), codified
part of Crooker into Exemption 7. The legislative history of
the Reform Act expressly states that the amended Exemption
7 was modeled after “the ‘circumvention of the law’ standard
that the D.C. Circuit established in its en banc decision in
Crooker v. BATF, 670 F.2d 1051 (D.C. Cir. 1981) (en banc)
(interpreting Exemption 2).” S. Rep. No. 221-98, at 25
(1983). As the Seventh Circuit concluded in Kaganove v.
EPA, “[b]ecause Congress saw fit to codify the very language
of Crooker, and because nothing in the legislative history of
the Reform Act suggests the slightest disagreement with that
case’s holding, we believe that Crooker accurately expresses
congressional intentions.” 856 F.2d 884, 889 (7th Cir. 1988),
cert. denied, 488 U.S. 1011 (1989). Though this statutory his-
tory is not dispositive, it is certainly illustrative.
MILNER v. DEPARTMENT OF THE NAVY 10361
Finally, we note two practical considerations that favor
adoption of the “predominantly internal” test. First, narrowing
Exemption 2 to only “law enforcement” materials forces our
courts to strain the term “law enforcement.” See, e.g., Dirksen
v. U.S. Dep’t of Health and Human Servs., 803 F.2d 1456,
1459, 1461 (9th Cir. 1986) (Ferguson, J., dissenting) (accus-
ing the panel majority of “judicial legislation” and “expand[-
ing] the concept of law enforcement” in holding that
Medicare payment processing guidelines were “law enforce-
ment” materials). Hardy did not define “law enforcement”
and plainly contemplated a broad understanding of the term.
631 F.2d at 657 (“’Law enforcement’ materials involve meth-
ods of enforcing the laws, however interpreted . . . .” (empha-
sis added)). Yet the term “law enforcement” must have some
meaning and limit. See Maricopa, 108 F.3d at 1087 (“[N]o
common-sense definition of the term suggests that goshawk
nest-site information can be deemed ‘law enforcement materi-
al’ ”). Maricopa carefully applied Hardy and suggested the
limits of the term: whether the information “tell[s] the
[agency] how to catch lawbreakers; [or tells] lawbreakers how
to avoid the [agency’s] enforcement efforts.” Id.Our existing cases lead our district courts to strain the logi-
cal limits of “law enforcement” to cover otherwise valid invo-
cations of Exemption 2. They regularly deny requests for
disclosure of all kinds of internal documents, including those
related to the military and national security, even if unrelated
to investigations or prosecutions. See, e.g., Kelly v. FAA, No.
07-00634, 2008 WL 958037 (E.D. Cal. Apr. 8, 2008) (magis-
trate judge recommending exemption of “grading sheet” for
hiring of Designated Pilot Examiners); L.A. Times v. Dep’t of
Army, 442 F. Supp. 2d 880, 898 (C.D. Cal. 2006) (holding
data on insurgent and other attacks in Iraq are “law enforce-
ment materials”); Gordon, 388 F. Supp. 2d at 1036 (holding
“no fly” and other aviation watch lists are “law enforcement
materials”); Coastal Delivery Corp. v. U.S. Customs Serv.,
272 F. Supp. 2d 958, 965 (C.D. Cal. 2003) (examining both
Hardy and Crooker and holding data on the number of Cus-
10362 MILNER v. DEPARTMENT OF THE NAVY
toms inspections at a particular port constitute “law enforce-
ment material”). If judges must regularly labor to apply the
standard in order to fit their intuitive understanding of con-
gressional intent, there is something wrong with the standard.
Our second practical concern stems from a preference for
national uniformity. Crooker has become the authoritative
case on Exemption 2. It presents an extraordinarily compre-
hensive analysis of the statutory language, legislative history,
and caselaw. At least four of our sister circuits have adopted
or relied on Crooker. See Abraham & Rose, PLC v. United
States, 138 F.3d 1075, 1080 (6th Cir. 1998); Audubon Soc.,
104 F.3d at 1204; Massey v. FBI, 3 F.3d 620, 622 (2d Cir.
1993); Kaganove, 856 F.2d at 889. Bringing our circuit into
alignment with the D.C. Circuit would create a more uniform
standard for national agencies like the U.S. Navy. It would
also allow our district courts to seek guidance from the D.C.
Circuit’s extensive case law in applying Exemption 2, in the
absence of authoritative Ninth Circuit or Supreme Court rul-
ings.
[11] In short, FOIA “resolved two crucial but potentially
conflicting interests: the right of the citizenry to know what
the Government is doing, and the legitimate but limited need
for secrecy to maintain effective operation of Government.”
Crooker, 670 F.2d at 1062. The text and history of Exemption
2 indicate that Congress intended to prevent disclosure of per-
sonnel matters that are predominantly internal, regardless of
whether they are “law enforcement” in nature. Limiting
Exemption 2 to “law enforcement materials” would frustrate
that policy while rendering Exemption 7 almost entirely
superfluous. Adopting the “predominantly internal” standard
gives due respect to Congress’s policy choices. It also simpli-
fies our approach to Exemption 2 and brings us into alignment
with some of our sister circuits.
[12] Therefore, we hold that a personnel document is
exempt as “High 2” if it is predominantly internal and its dis-
MILNER v. DEPARTMENT OF THE NAVY 10363
closure presents a risk of circumvention of agency regulation.
Law enforcement materials, as defined in Hardy and Mari-
copa, satisfy these criteria. However, other sorts of materials
—such as Navy data used for internal planning and safety
purposes—may also meet the standard for exemption under
Exemption 2. We now turn to the question of whether the
ESQD information requested here satisfies these criteria.
IV
A
[13] We first consider whether the ESQD arcs fit within the
statutory language— that is, whether they are “predominantly
internal” personnel rules or practices. The ESQD arcs at issue
here are essentially an extension of the OP-5 manual, which
governs operations on NMII. As noted above, the Foreword
to the manual states that “[t]he purpose of this volume is to
acquaint personnel engaged in operations” involving explo-
sives with the relevant procedures. The Foreword further
states that “[t]he instructions and regulations prescribed in
[the] OP-5 [manual] . . . are considered minimum criteria. The
specific items, technical manuals, drawings, and specifica-
tions referenced in this publication should be consulted for
additional, detailed requirements.” ESQD arcs are one of the
“specific items” referenced in the OP-5 manual. Therefore,
the ESQD arcs constitute one part of the internal policies and
procedures that NMII personnel are bound to follow when
handling and storing explosive ordnance.
[14] Our understanding comports with the Navy’s declara-
tions that ESQD arcs are used by its personnel to “design,
array, and construct ammunition storage facilities, and to
organize ammunitions operations for risk mitigation and
enhanced safety”—the very subjects of the OP-5 personnel
manual. The ESQD data is indeed an integral part of the
Navy’s personnel practices. Like the ATF raid manual at issue
in Hardy and Crooker, the information sought here is predom-
10364 MILNER v. DEPARTMENT OF THE NAVY
inantly used for the internal purpose of instructing agency
personnel on how to do their jobs.
Milner and the dissent suggest that the Navy should clas-
sify this information in order to keep it internal. However, not
all internal information can be classified, for legitimate rea-
sons of personal and national security. Classifying such infor-
mation may present logistical challenges that could actually
impede safe and effective operations. For instance, the Navy
has occasionally shared ESQD information with civilian first
responders around Port Townsend whose fire, rescue, and
police services would be needed in the event of an accident
or attack on NMII.
Milner further argues the decision to share the information
with local officials means the information is not “internal.”
We disagree. The decision to share otherwise internal infor-
mation with emergency responders does not necessarily place
the information outside the bounds of Exemption 2. First, we
do not wish to discourage agencies from sharing internal
information with local first responders. Such cooperation
encourages coordinated and effective mutual aid that
improves safety for both government employees and citizens.
Agencies must be permitted to grant limited, confidential
access to other federal and local agencies without risking
broader disclosure. Second, limited disclosure for official pur-
poses does not violate the standard that information must be
“predominantly internal.” Of course, if an agency regularly
and publicly discloses its practices, it can no longer claim the
information is predominantly internal. That is not the case
here. The ESQD arcs are “predominantly internal,” regardless
of prior limited disclosure to local officials.
Finally, FOIA’s fundamental concern with the existence of
“secret law” is not implicated here. See Hardy, 631 F.2d at
657 (stating that administrative materials, which “involve the
definition of the violation and the procedures required to pros-
ecute the offense, . . . contain the ‘secret law’ which was the
MILNER v. DEPARTMENT OF THE NAVY 10365
primary target of [FOIA’s] broad disclosure provisions”).
When internal personnel practices are used as “a source of
‘secret law,’ as important to the regulation of public behavior
as if they had been codified,” we cannot say the information
is predominantly internal. Crooker, 670 F.2d at 1075 (discuss-
ing the guidelines for prosecutorial discretion at issue in Scott
v. United States, 419 F.2d 264, 277 (D.C. Cir. 1969)); Hardy,
631 F.2d at 657. Even if the information sought was devel-
oped for purely internal uses, we could not permit invocation
of Exemption 2 if the information had external legal effect.
[15] In this case, the personnel procedures derived from
ESQD arcs are certainly not written to regulate the public.
The ESQD arcs have absolutely no legal or enforcement rami-
fications whatsoever on the citizens of the Puget Sound
region. Nothing about the data even could be codified in any
logical way to regulate public behavior, and the Navy has not
attempted to do so. We therefore hold the requested ESQD
information is “predominantly internal.”4
B
We next turn to the question whether disclosure of the
ESQD information “may risk circumvention of agency regu-
lation.” Rose, 425 U.S. at 369; see Crooker, 670 F.2d at 1070(exempting ATF raid manual because disclosure risked “cir-
cumvention of the law”). In Rose, the Supreme Court sur-
veyed the House and Senate reports related to Exemption 2 in
considering the scope of the exemption. 425 U.S. at 362-67.5
The Court noted the House Report’s emphasis on preventing
circumvention of agency regulation and discussed prior cases
relying on this Report:
4
The dissent does not dispute that the requested materials satisfy
Exemption 2’s “predominantly internal” requirement.
5
The Court ultimately chose to rely on the Senate Report in determining
Congress’ intent in resolving the question at issue in Rose. 425 U.S. at
367.
10366 MILNER v. DEPARTMENT OF THE NAVY
Those cases relying on the House, rather than the
Senate, interpretation of Exemption 2, and permit-
ting agency withholding of matters of some public
interest, have done so only where necessary to pre-
vent the circumvention of agency regulations that
might result from disclosure to the subjects of regu-
lation of the procedural manuals and guidelines used
by the agency in discharging its regulatory function.
Id. at 364. However, because Rose was not a case “where
knowledge of administrative procedures might help outsiders
to circumvent regulations or standards,” id. (quotation omit-
ted), the Court left open the question whether Exemption 2
would apply “where disclosure may risk circumvention of
agency regulation,” id. at 369.
Building on this framework, Crooker addressed the general
question whether “Exemption 2 might be construed to cover
internal agency materials where disclosure might risk circum-
vention of the law.” 670 F.2d at 1067. It concluded, “we hold
that . . . if disclosure significantly risks circumvention of
agency regulations or statutes, then Exemption 2 exempts the
material from mandatory disclosure.” Id. at 1074. Five years
later, the D.C. Circuit again summarized the scope of the cir-
cumvention requirement:
[W]e have not limited the “high 2” exemption to sit-
uations where penal or enforcement statutes could be
circumvented. Rather, we have held that “[w]here
disclosure of a particular set of documents would
render those documents operationally useless, the
Crooker analysis is satisfied whether or not the
agency identifies a specific statute or regulation
threatened by disclosure.”
Schiller, 964 F.2d at 1208 (quoting Nat’l Treasury Employees
Union v. U.S. Customs Serv., 802 F.2d 525, 530-31 (D.C. Cir.
1986)).
MILNER v. DEPARTMENT OF THE NAVY 10367
[16] In cases following Crooker, courts have exempted
information that would aid individuals in thwarting various
kinds of rules, procedures, and statutes.6 See Massey, 3 F.3d
at 622 (exempting “redact[ed] internal FBI notations contain-
ing the name of an FBI agent, the initials of other FBI
employees, and certain administrative markings”); PHE, Inc.
v. Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)
(exempting “specific documents, records and sources of infor-
mation available to Agents investigating obscenity violations”
because “release of FBI guidelines as to what sources of
information are available to its agents might encourage viola-
tors to tamper with those sources of information”); Schiller,
964 F.2d at 1208 (exempting documents containing the
National Labor Relations Board’s litigation strategies in
Equal Access to Justice Actions); Kaganove, 856 F.2d at
889-890 (exempting EPA document used to rate job candi-
dates); Dirksen, 803 F.2d at 1458-59 (exempting guidelines
used for processing Medicare payment claims); Nat’l Trea-
sury Employees Union, 802 F.2d at 530-31 (exempting “cred-
iting plans” used to evaluate job applicants); Founding
Church of Scientology v. Smith, 721 F.2d 828, 829, 831 (D.C.
Cir. 1983) (affirming district court’s judgment that disclosure
of “administrative handling instructions” ”would risk circum-
vention of federal statutes”).
6
The dissent refers to “a consistent line of cases in which agency maps
have been held not to qualify under Exemption 2.” Dissent at 10381. We
concede that the maps at issue in the cited cases were deemed non-exempt.
However, the fact that the information at issue was expressed in the form
of a map is utterly irrelevant to our analysis. A map may or may not meet
the standard for Exemption 2; it will depend, in each case, on what infor-
mation the map conveys and the purpose for which it is used. Even under
the dissent’s narrow reading of the circumvention requirement, a map
might well facilitate circumvention by a regulated person or entity. For
instance, a map or diagram showing the location of cameras in a prison
would be of great interest to an inmate who wishes to avoid detection
when he violates prison regulations. We decline to draw distinctions based
on whether the information appears in images, numbers, words, or any
other format.
10368 MILNER v. DEPARTMENT OF THE NAVY
[17] The record before us reveals that the ESQD informa-
tion falls squarely within this class of cases. An agency must
“submit to the district court a detailed affidavit describing
how disclosure would risk circumvention of agency regula-
tion.” Hardy, 631 F.2d at 657 (relying on Cuneo v. Schle-
singer, 484 F.2d 1086, 1092 (D.C. Cir. 1973)). “If the
explanation is reasonable, the district court should find the
materials exempt from disclosure, unless in camera examina-
tion shows that they contain secret law or that the agency has
not fairly described the contents in its affidavit.” Id. (citing
Cox v. U.S. Dep’t of Justice, 576 F.2d 1302, 1311-12 (8th Cir.
1978)).
[18] The Navy has described in detailed affidavits precisely
how public disclosure would risk circumvention of the law—
the ESQD arcs sought here point out the best targets for those
bent on wreaking havoc. The arcs indicate specific blast
ranges for individual magazines within NMII. A terrorist who
wished to hit the most damaging target or a protestor who
wished to disrupt the Navy’s monitoring and transportation
protocols would be greatly aided by such information.7 The
dissent does not apparently dispute that this risk exists; it con-
cludes only that risking sabotage of military explosives is not
the sort of “circumvention of the law” that should concern us.
[19] As in National Treasury Employees Union, disclosure
of the ESQD data “would quickly render those documents
obsolete for the purpose for which they were designed.” 802
F.2d at 530. The ESQD arcs are created as a planning tool to
prevent catastrophic detonations; disclosing the arcs would
make catastrophe more likely. The fact that requests for simi-
lar information from the Bangor nuclear submarine base have
7
Milner’s argument that such acts of sabotage are already criminalized
is unavailing. The same is equally true for misdeeds involving drugs and
firearms, but Hardy and Crooker nonetheless concluded that criminals
should not have the benefit of inside information in frustrating an ATF
raid. Hardy, 631 F.2d at 656; Crooker, 670 F.2d at 1073.
MILNER v. DEPARTMENT OF THE NAVY 10369
been granted is irrelevant to our analysis. “[T]he release of
certain documents waives FOIA exemptions only for those
documents released.” Mobil Oil Corp. v. EPA, 879 F.2d 698,
701 (9th Cir. 1989). Moreover, Commander Whitbred explic-
itly addressed this argument in his affidavit: “[NMII] is not a
submarine base. The nature of its mission is completely dif-
ferent, as are its security parameters, and physical characteris-
tics. Furthermore, [NMII] is not a single-weapon system
facility such as the bases referenced where the risks are asso-
ciated with a single program.” Because the Navy’s safety con-
cern rests on the potential utility of the ESQD arcs in
identifying the most hazardous target among many, these dis-
tinctions are significant. Hardy and Minier instruct us to
accord substantial weight to these reasonable explanations.
Hardy, 631 F.2d at 657; Minier, 88 F.3d at 800.
[20] The Navy released roughly 1,000 documents respon-
sive to Milner’s requests. It withheld the narrow class of doc-
uments at issue here because, as Commander Whitbred put it,
“I believe strongly that release of the sensitive ESQD infor-
mation involved in this case would jeopardize the safety and
security of the storage, transportation, and loading of ammu-
nitions and explosives” (emphasis original). There is no basis
to “suspect” that the Navy has ulterior, political motives for
denying the requested information. See Dissent at 10385. The
Navy has met its burden of describing how disclosure would
risk circumvention of its regulations. Therefore, the district
court properly exempted the requested ESQD information
from disclosure.8
V
In conclusion, we reiterate our approach to Exemption 2.
First, the material withheld must fall within the terms of the
8
Because we conclude the requested information was properly
exempted under Exemption 2, we need not reach the alternative argument
that Exemption 7 also applies.
10370 MILNER v. DEPARTMENT OF THE NAVY
statutory language. To determine whether a personnel docu-
ment falls within the statutory language, we inquire whether
it is “predominantly internal.” Law enforcement material, as
defined in Hardy and Maricopa, qualifies as predominantly
internal, but it is not the only category of materials that may
meet this test. Second, if the material is predominantly inter-
nal, the agency may defeat disclosure by proving that disclo-
sure may risk circumvention of the law. The ESQD arcs
requested here are predominantly internal personnel materials,
and if disclosed would present a serious risk of circumvention
of the law. The district court properly ruled that the informa-
tion sought is exempt from FOIA disclosure.
AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
The question in this case is whether Explosive Safety
Quantity Distance (“ESQD”) arc maps are exempt from dis-
closure under the Freedom of Information Act (“FOIA”). The
Navy claims the maps are exempt under FOIA Exemption 2
and Exemption 7(F). Exemption 2 covers information “related
solely to the internal personnel rules and practices of an agen-
cy.” 5 U.S.C. § 552(b)(2). Exemption 7(F) covers “records or
information compiled for law enforcement purposes” that, if
disclosed, “could reasonably be expected to endanger the life
or physical safety of any individual.” Id. § 552(b)(7)(F). The
majority holds that ESQD maps are exempt under Exemption
2. It does not reach Exemption 7(F).
The majority’s holding is inconsistent with both the statute
and the uniform case law interpreting Exemption 2. I would
hold that the ESQD maps are not exempt under either FOIA
Exemption 2 or Exemption 7(F).
MILNER v. DEPARTMENT OF THE NAVY 10371
I. Background
Naval Magazine Indian Island (“NMII”) is an ordnance
storage depot located on the northwest side of Indian Island
on Port Townsend Bay in Washington State. The bay is on the
northeast corner of the Olympic Peninsula, where the Straits
of Juan de Fuca come in from the Pacific Ocean to meet Puget
Sound. The bay is used by many kinds of pleasure and work
boats. The northern part of NMII is a little more than two
miles southeast of the town of Port Townsend across the open
water of the bay, and several hundred feet west of Fort Flagler
State Park on nearby Marrowstone Island. The southern part
of NMII is a little more than a mile east of the towns of Port
Hadlock and Irondale across the open water of the bay. NMII
is used to store and transship ammunition, weapons, weapon
components and explosives for the Navy, U.S. Joint Forces,
Homeland Security and other federal agencies and allied
forces. The Navy is responsible for all operations on NMII.
Glen Scott Milner is a life-long resident of the Puget Sound
region. For the past twenty years he has done research and
written about explosive hazards related to Navy activities in
Puget Sound. He has published articles in the Bulletin of
Atomic Scientists, BASIC (British American Security Infor-
mation Council, in London), Seattle Times, Seattle Post-
Intelligencer, Kitsap Sun, Port Townsend Leader, Washington
Free Press, and Real Change in Seattle. In addition, numerous
radio and television shows and newspaper articles have fea-
tured his comments about local Navy activities or used infor-
mation that he obtained through FOIA.
The Navy develops ESQD arc maps as part of its explo-
sives safety program. On an arc map,1 an hypothesized explo-
sion is at the focus of the arc. The arc represents the distance
1
When I refer to ESQD arc maps, I refer not only to the maps but to the
mathematical calculations of which the maps are the graphic representa-
tion.
10372 MILNER v. DEPARTMENT OF THE NAVY
at which the force of the explosion will be felt. The distance
between the site of the explosion and the arc varies depending
on the kind and quantity of ordnance. ESQD arc maps are
essentially safety maps, telling the Navy (and anyone else
who is allowed to see them) not only where different kinds
and quantities of ordnance should be stored, but also how far
away people and structures should be located to ensure their
safety in the event of an explosion.
Milner submitted two FOIA requests to the Navy, one on
December 7, 2003, and the other on February 3, 2004, for
information about explosion hazards at NMII. The district
court found Milner’s two requests “substantially identical”
and treated them as a single FOIA request. Milner requested
three kinds of documents:
[1] [A]ll documents on file regarding ESQD arcs or
explosive handling zones at the ammunition depot at
Indian Island. This would include all documents
showing impacts or potential impacts of activities in
the explosive handling zones to the ammunition
depot and the surrounding areas[;] . . .
[2] all maps and diagrams of the ammunition depot
at Indian Island which show ESQD arcs or explosive
handling zones”[;] [and]
[3] documents regarding any safety instructions or
operating procedures for Navy or civilian maritime
traffic within or near the explosive handling zones or
ESQD arcs at the ammunition depot at Indian Island.
The Navy identified seventeen document packages totaling
about 1,000 pages that met Milner’s request. The Navy dis-
closed most of these documents to Milner, but withheld 81
documents, claiming that their disclosure could threaten the
security of NMII and the surrounding community.
MILNER v. DEPARTMENT OF THE NAVY 10373
Jefferson County Commissioner Phil Johnson states in a
declaration that he wrote two letters to Rear Admiral W.D.
French requesting a meeting between Navy officials and the
general public concerning safety of ordnance storage and han-
dling at NMII. Jefferson County encompasses the towns of
Port Townsend, Port Hadlock and Irondale. In his first letter,
dated February 21, 2006, Commissioner Johnson recounted
that Captain Kurtz, the then-Commanding Officer of NMII,
and his staff had provided a tour of NMII to “local govern-
mental leaders and the press.” He wrote, “The three hours that
we spent touring the facilities and listening to the presenta-
tions about the Magazine’s safety record, the ‘standard oper-
ating procedures’ and the Navy’s environmental program
were indeed impressive.” Commissioner Johnson then pro-
posed a discussion lasting one to two hours at Fort Worden
State Park “with our general public, Captain Kurtz and his
staff,” and with a “neutral facilitator who will keep the audi-
ence focused on the purpose of the meeting.” Admiral French
wrote back thanking Commissioner Johnson for his “support
of the U.S. Navy,” stating that “the Navy values its outstand-
ing relationship with Jefferson County,” and describing meet-
ings Captain Kurtz had had with different groups, including
the Chambers of Commerce of Port Hadlock and Port Town-
send. However, Admiral French did not mention Commis-
sioner Johnson’s proposal for a general public meeting.
In a second letter to Admiral French, dated April 3, 2006,
Commissioner Johnson again requested a general public
meeting. This time he proposed that an “open public forum”
be held at the Jefferson County Courthouse. He proposed that
Captain Kurtz and his staff appear on a panel with “panelists
from the Hospital, Emergency Operations and Law Enforce-
ment/Fire.” He again proposed that there be a “neutral moder-
ator, who we will provide, to insure that the forum remains
focused on NAV MAG Indian Island and the plans for the
island.” This time, Admiral French responded to Commis-
sioner Johnson’s proposal. He declined, writing on May 3,
2006:
10374 MILNER v. DEPARTMENT OF THE NAVY
Thank you for your letter . . . in which you pro-
pose that a public forum be held . . . with presenta-
tions by the Navy, the local hospital, your
Emergency Operations Department, Law Enforce-
ment and the East Jefferson Fire District. While we
appreciate this opportunity and desire to keep the
lines of communication open, we prefer to continue
our current outreach program.
Admiral French listed occasions on which Captain Kurtz had
spoken to “many community groups and civic organizations
in the Port Townsend area.” He stated, “We believe that these
public engagements have been quite successful in providing
information to the citizens of Jefferson County.”
On September 11, 2006, Milner sued the Navy under FOIA
seeking disclosure of the documents the Navy had refused to
provide in response to his FOIA request.
Commander George Whitbred IV, the current Commanding
Officer of NMII, states in a declaration filed in this suit that
ESQD arcs “define minimum separation distances for quanti-
ties of explosives based on required degrees of protection.
These separation distances are established to afford reason-
able safety to Department of Navy shore activities, and, to the
extent possible, protect adjacent public and private property.”
Commander Whitbred states that “ESQD arcs can be ‘reverse
engineered’ with the right information,” and that “some arcs
reveal more than others about the particular ammunition,
explosive or weapons system.” He states that arc maps are
provided to civilian members of the public on a “case-by-case
basis.” Commander Whitbred states further:
We sometimes share ESQD information with “first
responders” at both Jefferson County and the City of
Port Townsend. However, ESQD information is not
released to the general public if a determination is
made that the release might pose a serious threat of
MILNER v. DEPARTMENT OF THE NAVY 10375
death or injury to any person — either inside or out-
side the installation boundaries.
Milner states in a declaration that the Navy submarine base
at Bangor, Washington, “handles much of the ammunition
that is sent to Indian Island. The ammunition is routed by rail-
cars and then sent by truck to Indian Island.” He further states
that the Navy has voluntarily handed over to him, pursuant to
FOIA requests, comparable arc maps for ordnance stored at
the Bangor base. The Navy’s behavior with respect to the arc
maps for the Bangor base contrasts sharply with its behavior
with respect to the arc maps for NMII, even though the same
type of ordnance is stored at both bases. Milner states:
Numerous documents showing ESQD arcs and
related information about the Bangor base, similar to
the documents I requested for Indian Island, have
been released to me through FOIA. One 1995 docu-
ment . . . lists 33 different sites with ESQD arcs at
Naval Base Kitsap-Bangor. The Net Explosives
Weight at these sites is listed from 5,000 to 3.72 mil-
lion pounds . . . . The document also contains a map
showing ESQD arcs at Bangor. Numerous similar
maps showing ESQD arcs at Bangor have been
released to me in the past.
Bangor is the Puget Sound base for the Navy’s Trident
nuclear submarines. The Bangor base is located on the north-
eastern shore of Hood Canal, a little less than 40 miles due
south of Port Townsend. Despite its name, Hood Canal is not
a canal; rather, it is a long narrow inlet of Puget Sound mostly
running north and south along the eastern edge of the Olym-
pic Peninsula. The nearest town to the Bangor base is Silver-
dale, four or five miles across land to the south.
The Navy has not contradicted Milner’s statement about the
nature and quantity of ordnance at Bangor. Nor has it contra-
dicted his statement that it has voluntarily released to him
10376 MILNER v. DEPARTMENT OF THE NAVY
under FOIA numerous arc maps for the ordnance stored at the
Bangor base. Though it undoubtedly could have done so, the
Navy has not provided affidavits or declarations from anyone
connected with the Bangor base. Commander Whitbred of
NMII has provided the Navy’s only response to Milner’s
statements about the Bangor base. He states in his declaration,
“I am not an expert on Trident Submarines; nor do I know the
reasons why information about ESQD arcs might have been
released by those commands in the past.”
Both parties moved for summary judgment. The Navy con-
tended that the documents were protected from disclosure
under FOIA Exemptions 2 and 7(F). The district court granted
summary judgment to the Navy under Exemption 2. The court
did not address Exemption 7(F). Milner timely appealed.
II. Discussion
I would hold that neither Exemption 2 nor Exemption 7(F)
permits the Navy to withhold the requested ESQD arc maps.
A. FOIA
The goal of FOIA is “to open agency action to the light of
public scrutiny.” U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 772 (1989) (internal quo-
tation omitted). FOIA revised § 3 of the Administrative Pro-
cedure Act (“APA”), which Congress had declared was “full
of loopholes which allow agencies to deny legitimate infor-
mation to the public.” S. Rep. No. 813, 89th Cong., 1st Sess.,
3 (1965) (“Senate Report”); see also H.R. Rep. No. 1497,
89th Cong., 2d Sess., 4 (“House Report”) (“Section 3 of the
[APA], though titled ‘Public Information’ and clearly
intended for that purpose, has been used as an authority for
withholding, rather than disclosing, information.”). In the
words of the Supreme Court, “Section 3 was generally recog-
nized as falling far short of its disclosure goals and came to
be looked upon more as a withholding statute than a disclo-
MILNER v. DEPARTMENT OF THE NAVY 10377
sure statute.” Dep’t of Air Force v. Rose, 425 U.S. 352, 360
(1976) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)).
FOIA mandates that government agencies disclose their
records through three methods. 5 U.S.C. § 552(a). Section
552(a)(1) requires that agencies publish certain information in
the Federal Register. Section 552(a)(2) requires that certain
other types of material be made available for public inspec-
tion and copying. Section 552(a)(3), upon which Milner
relies, requires disclosure of all other reasonably described
records not already released under § 552(a)(1) or (a)(2).
Federal agencies may withhold requested documents only
if they fall under one of the nine enumerated exemptions to
mandatory disclosure under FOIA. Exemptions under FOIA
“must be narrowly construed.” Rose, 425 U.S. at 361. Exemp-
tions under FOIA are also “explicitly exclusive.” U.S. Dep’t
of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting
FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)). That is,
we may not read additional exemptions into FOIA, no matter
how desirable such exemptions might be in the view of the
agency or the court. See also Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 7-8 (2001); Mari-
copa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1082,
1085 (9th Cir. 1997). The existence of these nine enumerated
exemptions “do[es] not obscure the basic policy that disclo-
sure, not secrecy, is the dominant objective of the Act.” Rose,
425 U.S. at 361.
B. FOIA Exemption 2
FOIA Exemption 2 allows agencies to withhold “matters
. . . related solely to the internal personnel rules and practices
of an agency.” 5 U.S.C. § 552(b)(2). The question before us
is whether ESQD arc maps are “related solely to internal per-
sonnel rules and practices” within the meaning of Exemption
2. I would hold that they are not.
10378 MILNER v. DEPARTMENT OF THE NAVY
I agree with part of the majority’s analysis. I agree that we
should adopt the reasoning of the D.C. Circuit articulated in
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d
1051 (D.C. Cir. 1981) (en banc). I further agree that our cir-
cuit’s three decisions dealing with Exemption 2 — Hardy v.
Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th
Cir. 1980); Dirksen v. United States Department of Health
and Human Services, 803 F.2d 1456 (9th Cir. 1986); and
Maricopa Audubon Society v. United States Forest Service,
108 F.3d 1082 (9th Cir. 1997) — are not inconsistent with
Crooker. Finally, I agree that under Crooker, documents must
be “predominantly internal” and pertain to “personnel rules
and practices of an agency” to qualify under Exemption 2.
However, I strongly disagree with the majority’s applica-
tion of the part of Crooker that deals with what it calls “the
circumvention requirement.” Maj. Op. at 10366. Crooker held
that a predominantly internal document whose release might
result in the circumvention of agency regulation is protected
under Exemption 2. Circumvention of agency regulation has
a precise, and restricted, meaning. Crooker and all subsequent
cases have held that the circumvention must be by a person
or entity that is subject to regulation by the agency in ques-
tion.
Crooker carefully described the sort of circumvention of
agency regulation that qualifies a document for exemption
under Exemption 2. Crooker noted that the Supreme Court’s
opinion in Rose had left open the question whether documents
that would permit circumvention of regulation were exempted
by Exemption 2. Crooker answered the question, holding that
such documents were exempted. It quoted from Rose to make
clear the sort of circumvention at issue. First, the Court in
Rose had referred to Exemption 2 as being potentially avail-
able
only where necessary to prevent the circumvention
of agency regulations that might result from disclo-
MILNER v. DEPARTMENT OF THE NAVY 10379
sure to the subjects of regulation of the procedural
manuals and guidelines used by the agency in dis-
charging its regulatory function.
Crooker, 670 F.2d at 1066 (quoting Rose, 425 U.S. at 364)
(emphasis altered). Second, the Court had noted that the pri-
mary focus of the House Report on Exemption 2 had been on
“exemption of disclosures that might enable the regulated to
circumvent agency regulation.” Crooker, 670 F.2d at 1066(quoting Rose, 425 U.S. at 366-67) (emphasis added). Thus,
under Crooker, agency documents embodying “personnel
rules and practices” are exempt under Exemption 2 only when
they are “procedural manuals and guidelines used by the
agency in discharging its regulatory function,” and only when
their disclosure “to the subjects of regulation” might result in
the “circumvention of agency regulations.” Crooker, 670 F.2d
at 1066 (quoting Rose, 425 U.S. at 364).
Examples of documents whose release might result in cir-
cumvention of agency regulation by regulated persons or enti-
ties include “instructions to such government officials as
investigators and bank examiners.” Crooker, 670 F.2d at
1057. The documents we held exempt under Exemption 2 in
Hardy and Dirksen are further examples of such documents.
In Hardy, we held exempt under Exemption 2 a Bureau of
Alcohol, Tobacco, and Firearms (“BATF”) training manual
whose disclosure risked circumvention of BATF regulation
by parties subject to that regulation. In Dirksen, we held
exempt under Exemption 2 a document containing Medicare
processing Guidelines whose disclosure risked circumvention
of agency reimbursement regulations by Medicare providers
subject to Health and Human Services regulation. In Hardy,
we emphasized that the BATF manual was a law enforcement
manual, and in Dirksen, we analogized the Guidelines docu-
ment to a law enforcement manual.
In a consistent line of cases decided after Crooker, the D.C.
Circuit has restricted the application of Exemption 2 to docu-
10380 MILNER v. DEPARTMENT OF THE NAVY
ments whose release would permit the subjects of the agen-
cy’s regulation to circumvent that regulation. In National
Treasury Employees Union v. United States Customs Service,
802 F.2d 525 (D.C. Cir. 1986), the court held that the Cus-
toms Service could withhold “crediting plans” it used to eval-
uate job applicants. Id. at 531. The court determined that
“release of the plans creates a significant risk that the Ser-
vice’s applicant evaluation program will be seriously compro-
mised” because “advance knowledge of the plans by
applicants would allow and induce at least some of them to
embellish—or perhaps even fabricate—their backgrounds to
suit the appropriate crediting plan.” Id. at 529.
In Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), the
court similarly allowed the National Labor Relations Board
(“NLRB”) to withhold documents containing the agency’s lit-
igation strategies in Equal Access to Justice Act (“EAJA”)
actions. Id. at 1207. The EAJA allows prevailing parties to
recover attorney’s fees and costs from the agency in certain
circumstances. See 5 U.S.C. § 504. The court held that requir-
ing the NLRB to disclose its litigation strategies would “com-
promis[e] the Board’s ability to defend itself in EAJA
actions.” 964 F.2d at 1208.
In PHE, Inc. v. United States Department of Justice, 983
F.2d 248 (D.C. Cir. 1993), the court allowed the FBI to claim
Exemption 2 for the section of its Manual of Investigative
Operations and Guidelines related to interstate transportation
of obscene matter. Id. at 251. This withheld section “detailed
specific documents, records and sources of information avail-
able to Agents investigating obscenity violations, as well as
the type of patterns of criminal activity to look for when
investigating certain violations.” Id. The court agreed with the
government that the disclosure of this portion of the Manual
would “provide[ ] violators with an opportunity to impede
lawful investigations.” Id.The case law in other circuits is consistent with that of the
D.C. Circuit. In Caplan v. Bureau of Alcohol, Tobacco &
MILNER v. DEPARTMENT OF THE NAVY 10381
Firearms, 587 F.2d 544 (2d Cir. 1978), the Second Circuit
held exempt under Exemption 2 a BATF Raids and Searches
training manual. Id. at 546. The court stated that releasing the
manual would “significantly assist those engaged in criminal
activity by acquainting them with the intimate details of the
strategies employed in its detection.” Id. at 547. The Seventh
Circuit followed suit in Kaganove v. EPA, 856 F.2d 884 (7th
Cir. 1988), holding exempt under Exemption 2 an EPA docu-
ment used to rate job candidates. Id. at 889-90. The court
found that disclosing the document would allow job appli-
cants to exaggerate their credentials to receive higher ratings.
Id. at 890.
The majority does not acknowledge the limited sense in
which circumvention of agency regulation is used in the case
law interpreting Exemption 2. The majority has cited no case
— and can cite no case — in which Exemption 2 was applied
more broadly than in the cases I have just described. In all of
the reported cases dealing with the issue, Exemption 2 applies
only to documents whose release would facilitate circumven-
tion of agency regulation by a regulated person or entity.
Under long-standing and well-established law, a document is
protected under Exemption 2 only if its release risks circum-
vention by a regulated person or entity. Exemption 2 does not
apply in this case because there is no such person or entity.
The Navy is not acting as a regulatory or law enforcement
agency, and the arc maps do not regulate anyone or anything
outside the Navy itself.
The majority ignores a consistent line of cases in which
agency maps have been held not to qualify under Exemption
2. Most important is our own case, Maricopa Audubon Soci-
ety v. United States Forest Service, 108 F.3d 1082 (9th Cir.
1997), in which we held that Forest Service maps showing the
locations of goshawk nests were not protected from disclosure
under Exemption 2. 108 F.3d at 1086-87. We so held despite
the concern expressed by the district court that if the maps fell
10382 MILNER v. DEPARTMENT OF THE NAVY
into the wrong hands harm to the goshawks could result. Id.
at 1084.
Other cases include Audubon Society v. United States For-
est Service, 104 F.3d 1201 (10th Cir. 1997), Living Rivers,
Inc. v. United States Bureau of Reclamation, 273 F. Supp. 2d
1313 (D. Utah 2003), and DeLorme Publishing Co. v.
National Oceanic & Atmospheric Administration of the
United States Department of Commerce, 917 F. Supp. 867 (D.
Me. 1996). In Audubon, the Tenth Circuit held that maps
identifying Mexican spotted owl nest sites were not protected
from disclosure under Exemption 2. 104 F.3d at 1204. In Liv-
ing Rivers, the district court determined that the Bureau of
Reclamation could not withhold maps showing which down-
stream areas would be flooded if the Hoover Dam or the Glen
Canyon Dam failed. 272 F. Supp. 2d at 1318. The court so
held despite the government’s contention that releasing the
maps “would [compromise] dam security and the security of
the surrounding populations.” Id. at 1315. In DeLorme, the
district court rejected the National Oceanic and Atmospheric
Administration’s attempt to withhold compilations of its nau-
tical charts from disclosure under Exemption 2. 917 F. Supp.
at 876.
The key question in these cases was not whether the docu-
ments at issue were maps per se, but rather the consequence
of the release of the maps. Even though there was some
potential risk of harm from the release of the maps, their
release did not risk circumvention of regulation by regulated
persons or entities. I agree with the majority that releasing a
map showing the location of cameras in a prison would be
protected under Exemption 2. See Maj. Op. at 10367 n.6.
Such a map would be protected because its disclosure would
risk circumvention of regulation by regulated persons, i.e. by
the prison’s inmates. But our case is quite different. In our
case, there is — at least, according to the Navy — a risk of
harm from release of the maps. But the risk is not that a regu-
MILNER v. DEPARTMENT OF THE NAVY 10383
lated person or entity will be thereby assisted in avoiding the
agency’s regulation.
Given the foregoing extensive and consistent lines of prece-
dent, the conclusion is inescapable that the arc maps at issue
in this case are not exempt under Exemption 2. The ESQD arc
maps do not qualify for Exemption 2 under this circuit’s anal-
ysis in Hardy and Dirksen; under the D.C. Circuit’s analysis
in Crooker and subsequent cases; or under the analyses of the
other circuits. The arc maps are not “procedural manuals [or]
guidelines used by the agency in discharging its regulatory
function” whose disclosure “to the subjects of regulation”
might result in the “circumvention of agency regulations.”
Crooker, 670 F.2d at 1066. Rather, the maps fall squarely
under the analysis in our circuit’s decision in Maricopa, in the
Tenth Circuit’s decision in Audubon, and in the district
courts’ decisions in Living Rivers and DeLorme. I would
therefore hold that the ESQD arc maps at issue in this appeal
are not exempt under Exemption 2.
C. FOIA Exemption 7(F)
Because I would hold that the ESQD arc maps are not
exempt under Exemption 2, I would also reach the question
whether the maps are exempt under Exemption 7(F). Exemp-
tion 7(F) covers “matters that are . . . records or information
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or infor-
mation . . . could reasonably be expected to endanger the life
or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F).
I would hold that the ESQD arc maps are not covered under
Exemption 7(F) because they were not “compiled for law
enforcement purposes.”
The Navy has the burden of proving that it is a “law
enforcement” agency and that the ESQD arc maps were
“compiled for law enforcement purposes.” Church of Scien-
tology of Cal. v. U.S. Dep’t of the Army, 611 F.2d 738, 748
10384 MILNER v. DEPARTMENT OF THE NAVY
(9th Cir. 1980). An agency with a “ ‘mixed’ function, encom-
passing both administrative and law enforcement functions,
must demonstrate that it had a purpose falling within its
sphere of enforcement authority in compiling the particular
document.” Id. A law enforcement purpose is an “adjudicative
or enforcement purpose[ ],” such as the “enforcement of any
statute or regulation within the authority” of the agency. Id.“Information need not have been originally compiled for law
enforcement purposes in order to qualify for the ‘law enforce-
ment’ exemption, so long as it was compiled for law enforce-
ment purposes at the time the FOIA request was made.” Lion
Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082 (9th Cir.
2004) (quoting John Doe Agency v. John Doe Corp., 493 U.S.
146, 155 (1989)).
The Navy concedes that it is an agency with a mixed func-
tion. Therefore, it must demonstrate that it “had a law
enforcement purpose based upon properly delegated enforce-
ment authority” for compiling the ESQD arc maps. Church of
Scientology, 611 F.2d at 748. The Navy does not meet this
standard. Agencies with law enforcement powers have the
ability to conduct investigations or adjudications to enforce
laws or regulations. See, e.g., Church of Scientology Int’l v.
I.R.S., 995 F.2d 916, 919 (9th Cir. 1993) (finding that the
Exempt Organization Division of the IRS performs a law
enforcement function “by enforcing the provisions of the fed-
eral tax code that relate to qualification for tax exempt sta-
tus”); Lewis v. I.R.S., 823 F.2d 375, 379 (9th Cir. 1987)
(holding that the I.R.S. has a law enforcement purpose in the
context of a criminal tax investigation); Binion v. U.S. Dep’t
of Justice, 695 F.2d 1189, 1194 (9th Cir. 1983) (stating that
the F.B.I. has a “clear law enforcement mandate”). The divi-
sions of the Navy responsible for producing ESQD arc maps
and conducting operations on NMII have no such powers.
These divisions are distinct from those with investigative
powers, such as the Naval Investigative Service of the Office
of Naval Intelligence, which we examined in Church of Scien-
tology. 611 F.2d at 748.
MILNER v. DEPARTMENT OF THE NAVY 10385
Even if the branch of the Navy that created the ESQD arc
maps had law enforcement authority, these documents were
not compiled for law enforcement purposes. Commander
Whitbred stated that the Navy “use[s] these arcs to design,
array, and construct ammunition storage facilities, and to
organize ammunition operations for risk mitigation and
enhanced safety.” This is not an “adjudicative or enforcement
purpose[ ].” Church of Scientology, 611 F.2d at 748. I would
therefore hold that the ESQD arc maps at issue in this appeal
are not exempt under Exemption 7(F).
D. FOIA Exemption 1
I am myself a former Navy officer. I yield to no one in my
admiration for the care and professionalism of the Navy in its
handling of ordnance, at NMII and elsewhere.
There is reason to suspect that the Navy’s reluctance to
release the ESQD arc maps for NMII is not based on the dan-
ger to national security that might be posed if the arc maps
were released to Milner and the general public, but rather on
the political difficulties that might be created by their release.
This is strongly suggested by the contrast between the Navy’s
behavior with respect to the arc maps for the Bangor base and
its behavior with respect to comparable arc maps for NMII.
The Navy voluntarily provided to Milner under FOIA numer-
ous ESQD arc maps for the Bangor base. That base is located
four to five miles across land from the nearest town. So far
as the record reveals, there was little political sensitivity to the
possible dangers posed by the storage of conventional ord-
nance at Bangor.
By contrast, the Navy has been unwilling to provide to Mil-
ner the comparable ESQD arc maps for the same type of ord-
nance stored at NMII. NMII is located a little more than two
miles across open water from Port Townsend and a little more
than a mile across open water from Port Hadlock and Iron-
dale. It is clear from the record that there is substantial politi-
10386 MILNER v. DEPARTMENT OF THE NAVY
cal sensitivity to the possible danger posed by the storage of
ordnance at NMII. This political sensitivity is shown, for
example, by Jefferson County Commissioner Johnson’s invi-
tation to the Navy to appear at a public forum to discuss
“NAV MAG Indian Island and the plans for the island” on a
panel with local hospital, emergency operations, law enforce-
ment and fire fighting personnel. The nature of the Navy’s
response is shown by its unwillingness to accept the invita-
tion, and its preference instead to continue to conduct its “cur-
rent outreach program” in which Captain Kurtz, appearing
alone, spoke to various community groups and civic organiza-
tions.
Commander Whitbred states in his declaration that a person
may be able to “reverse engineer” ESQD arc maps, and
thereby to discover information about “particular ammunition,
explosive[s and] weapons systems,” with possible adverse
consequences for national security. I have trouble reconciling
Commander Whitbred’s statement about the national security
risks of releasing the ESQD arc maps for NMII with the
Navy’s failure to classify these maps. Exemption 1 of FOIA
specifically exempts from disclosure classified matters “kept
secret in the interest of national defense or foreign policy.” 5
U.S.C. § 552(b)(1). This exemption is specifically designed to
allow government agencies to withhold information that
might jeopardize our national security. If the disclosure of the
ESQD arc maps is as dangerous as Commander Whitbread
claims, the Navy is acting irresponsibly by not classifying
them. I would be willing to remand to the district court, even
at this late stage in the litigation, in order to give the Navy an
opportunity to classify the arc maps at NMII and thereby to
qualify them under Exemption 1 if it truly believes that Com-
mander Whitbred’s stated concerns about reverse engineering
are legitimate. But my colleagues in the majority have
declined to follow this course.
Conclusion
FOIA is a careful “balance between the interests of the pub-
lic in greater access to information and the needs of the Gov-
MILNER v. DEPARTMENT OF THE NAVY 10387
ernment to protect certain kinds of information from
disclosure.” John Doe Agency, 493 U.S. at 157. FOIA pro-
tects information that, if released, would jeopardize our
national security or endanger the lives of individuals. Such
information is protected under Exemption 1 if it is classified
and under Exemption 7(F) if it is “compiled for law enforce-
ment purposes” and “could reasonably be expected to endan-
ger the life or physical safety of any individual” if disclosed.
The majority’s determination to expand Exemption 2 to pro-
tect information that the Navy has not seen fit to classify dis-
torts Congress’s careful balance and defies the Supreme
Court’s instruction that FOIA exemptions “must be narrowly
construed” and are “explicitly exclusive.” Rose, 425 U.S. at
361; Tax Analysts, 492 U.S. at 151 (quoting Robertson, 422
U.S. at 262).
I conclude, based on a long line of consistent precedent in
this and other circuits, that neither Exemption 2 nor Exemp-
tion 7(F) applies to the arc maps at issue in this appeal. I
respectfully dissent.