Milner v. U.S. Dept of Navy

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.