SEJ Joins Amicus Brief on Dangerously Expanded FOIA Exemption

September 23, 2009

SEJ has signed onto a friend-of-the-court brief opposing expansion of a key exemption to the federal Freedom of Information Act.

The "law enforcement" exemption to FOIA, once meant mostly to protect sensitive pre-trial criminal evidence, has been expanded in the past decade to prevent disclosure of vast swaths of information once critical and available to environmental reporters.

Such information could include pipeline safety inspection data, environmental impacts of Liquefied Natural Gas terminals, maps showing consequences of dam failure, proposed powerline corridors, or the routing of railcars carrying toxics that could wipe out most of a city.

FOIA requests for such information, under the Bush administration after 9/11, were often denied, with the federal government claiming that Exemption 7 of FOIA — "records or information compiled for law enforcement purposes" — applied.

While the text of the law makes fairly clear that it was intended not to tip the hands of detectives and prosecutors, it contains one final all-purpose exemption for "law enforcement records … [that] could reasonably be expected to endanger the life or physical safety of any individual."

While this makes sense for the addresses of people in the witness protection program, the Bush administration, in administrative and regulatory practice, expanded it to include almost any information they thought could be exploited to terrorists or endanger homeland security. Since 2001, few have had the courage to challenge the expanded interpretation of the law enforcement exemption in court.

That is why the case of Glen Scott Milner v. U.S. Dept. of the Navy is important. Milner, a Puget Sound resident and activist, sought information that would identify the locations and potential blast ranges of explosive ordnance stored at Washington’s Naval Magazine Indian Island. The information mattered to local residents, since a 1944 ammunition explosion there had killed 320 people.

The Navy denied part of Milner's request, he went to court over it, and the federal district court upheld the Navy's denial. Milner then appealed to the Ninth Circuit.

A number of news media organizations have joined the case in an amicus (friend of the court) brief supporting Milner's right to the information. Besides SEJ, they include the Allied Daily Newspapers Of Washington, Arizona Newspapers Association, California Newspaper Publishers Association, Idaho Newspaper Association, Montana Newspaper Association, Nevada Press Association, Oregon Newspaper Publishers Association, and the Washington Newspaper Publishers Association.