Activist’s Nine-Year Navy FOIA Fight Ends in Supreme Court Win

Glen Milner wanted to know the dangers posed by the Navy’s Indian Island munitions facility near Port Townsend, Washington. So in 2003, he filed a Freedom of Information request.

Milner, who lives about 50 miles south of the ordnance depot, finally received documents outlining those risks -- nine years later. To get there, the citizen activist needed the help of the U.S. Supreme Court to obtain information about the hazards of living near the arsenal.

“It turned out to be a real prolonged fight,” said Milner, 61, an unemployed electrician who spends his days trying to pry information out of government agencies. “The process just drags on and on.”

Milner’s effort to access government safety records illustrates the obstacles ordinary citizens can face when petitioning the government for documents under the Freedom of Information Act. Individuals can find themselves ignored by government bureaucracy or, once denied, unable to afford the costs of an extended legal wrangle.

Those hassles discourage citizens from using the law designed to keep the government accountable, said Barbara Petersen, president of the First Amendment Foundation in Tallahassee, Florida.

Delaying is “one way of denying,” she said. “A lot of people just give up.”

Photographer: Mary Gleysteen via Bloomberg

Glen Milner’s effort to access government safety records illustrates the problems ordinary citizens can face when petitioning the government for documents under the Freedom of Information Act. Close

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Photographer: Mary Gleysteen via Bloomberg

Glen Milner’s effort to access government safety records illustrates the problems ordinary citizens can face when petitioning the government for documents under the Freedom of Information Act.

Takes Time

While a nine-year wait may be extreme, it’s not unusual for the government to take its time responding to Freedom of Information requests. In 2011, the administration received 644,165 FOIA inquiries. Agencies and departments processed 372,422 requests within the 20-day the deadline set by the law, according to FOIA.gov, the website that tracks the status of Freedom of Information requests.

Another 13,539 queries took more than 400 days to complete, meaning the agency released all or some of the information or denied the request entirely.

A Bloomberg News survey of 57 major federal agencies requesting the travel records of top officials for fiscal 2011 found that just eight of those departments complied within the 20-day period mandated by the Freedom of Information Act. Travel costs generated by Cabinet members including Secretary of State Hillary Clinton, Energy Secretary Steven Chu and Environmental Protection Agency Administrator Lisa Jackson remain undisclosed.

Expanded Exemption

Milner wasn’t deterred when the Navy denied his request and rejected his appeals. He notified David Mann, his Seattle-based attorney, that the Navy was denying his requests for ordnance blast-zone maps by using an exemption related to personnel rules.

There are nine exemptions to FOIA, including provisions to protect trade secrets, information related to supervision of financial institutions, and matters of national defense.

“My response was, ’I’ll take that case,’” Mann said. Mann worked pro bono and is now negotiating a fee settlement with the Navy.

After two court decisions upheld the Navy’s argument, Milner eventually wound up at the U.S. Supreme Court.

Earlier court rulings had interpreted Exemption 2, the one cited by the Navy, as allowing the department to withhold documents beyond matters simply relating to hiring or firing or performance reviews. The Navy argued that the restrictions could also include safety-review documents because their disclosure could threaten the security and safety of personnel.

Broad Use

News organizations and other open-records advocacy groups filed briefs on Milner’s behalf. The Reporters Committee for Freedom of the Press, an Arlington, Virginia-based First Amendment group, criticized the interpretation of Exemption 2 as having expanded to cover “almost any record whose disclosure could enable some unidentified party to commit a hypothetical crime at some undefined future time.” Bloomberg News parent Bloomberg LP joined with other news gathering organizations in the brief.

The Supreme Court, in a March 2011 decision, rejected the broad interpretation of the exemption, known as a “high 2,” used by the Navy in denying Milner’s request. The court did say the Navy might be able to use other exemptions to keep the maps secret.

Secrecy Provision

Milner’s battle didn’t end there.

After the ruling, Congress added language to a 2012 defense authorization act allowing the Pentagon to withhold information relating to critical infrastructure, including the maps Milner originally sought.

The Navy eventually turned over a document showing the department’s plan to scuttle a ship if it caught fire as munitions were loaded or unloaded at the facility and information about the total explosive potential of the munitions on the base.

“The Navy chose to release limited information in order to protect the people and property on the base as well as in the nearby community,” said Amanda Greenberg, a Navy spokeswoman. “We made a conscious decision not to release certain maps and explosive data for similar reasons.”

Milner said his case eventually revealed the risks associated with the base and rolled back the use of high 2, which he said had been abused by agencies. Mann, Milner’s attorney, said the Navy refused to turn over the ordnance blast maps, citing the new infrastructure exemption.

Agencies used Exemption 2 to block releases 64,260 times in 2010, according to FOIA.gov. That number fell to 24,440 in fiscal 2011.

Milner said he files as many as 15 open-records requests a year. At the moment he’s trying to get information on a Navy plan to expand a munitions handling wharf at Naval Base Kitsap in Washington.

“I’m successful a good percentage of the time if I stay at it,” he said.

To contact the reporter on this story: Jim Snyder in Washington at jsnyder24@bloomberg.net

To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net

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