FOIA Guide, 2004 Edition: Exemption 2

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Freedom of Information Act Guide, May 2004


Exemption 2

Exemption 2 of the FOIA exempts from mandatory disclosure records that are
"related solely to the internal personnel rules and practices of an agency." (1) The
courts have interpreted the exemption to encompass two distinct categories of
information:

(a) internal matters of a relatively trivial nature -- often referred to as "low
2" information; and

(b) more substantial internal matters, the disclosure of which would risk
circumvention of a legal requirement -- often referred to as "high 2"
information. (2)

With the relatively recent development of both worldwide and domestic
terrorism, greatly heightened security awareness, and recognition of the
concomitant need to protect the nation's critical infrastructure (both its elements
and records about them), (3) the second category of information protection afforded by
Exemption 2 is of fundamental importance to homeland security. (4) It is important
that all agencies consider Exemption 2 carefully in properly assessing -- and, where
appropriate, withholding -- sensitive critical infrastructure information of current law
enforcement significance. (5) A comprehensive examination of that vital means of
information protection follows the discussions below of Exemption 2's historical
development and of the case law addressing the "low 2" aspect of Exemption 2.
(See also the further discussion under Exemption 2, Homeland Security-Related
Information, below.)


Initial Considerations

For more than fifteen years, much confusion existed concerning the intended
coverage of Exemption 2, due to the differing ways in which Exemption 2 was
addressed in the Senate and House Reports when the FOIA was enacted. The
Senate Report stated:


(6)

The House Report provided a more expansive interpretation of Exemption 2's
coverage, stating that it was intended to include:


(7)

The Supreme Court confronted the conflict in Exemption 2's coverage of
routine internal matters in a case in which a requester sought to obtain case
summaries of Air Force Academy ethics hearings, and it found the Senate Report to
be more authoritative. In Department of the Air Force v. Rose, (8) the Supreme Court
construed Exemption 2's somewhat ambiguous language as protecting internal
agency matters so routine or trivial that they could not be "subject to . . . a genuine
and significant public interest." (9) The Court declared that Exemption 2 was intended
to relieve agencies of the burden of assembling and providing access to any "matter
in which the public could not reasonably be expected to have an interest." (10) At the
same time, presaging the eventual development of "high 2," the Court also
suggested in Rose that the policy enunciated by the House Report might permit an
agency to withhold matters of some public interest "where disclosure may risk
circumvention of agency regulation." (11)

The Supreme Court's ruling in Rose helped to define the contours of
Exemption 2, but it did not dispel all the confusion about its scope. Early judicial
opinions, particularly in the Court of Appeals for the District of Columbia Circuit,
demonstrated judicial ambivalence about whether the exemption covered only
internal personnel rules and personnel practices of an agency or, on the other hand,
an agency's internal personnel rules and more general internal practices. (12)

The confusion of prior years was finally laid to rest, at least in the D.C. Circuit,
in Founding Church of Scientology v. Smith, (13) which set out specific steps for
determining the applicability of Exemption 2. In this important 1983 decision, the
D.C. Circuit articulated the following approach:


(14)

In this decision, the D.C. Circuit thus made it clear that Exemption 2 allows the
withholding of a great variety of internal rules, procedures, and guidelines --
effectively overruling its earlier decision in Allen v. CIA,
(15)
where it initially had
indicated that Exemption 2 protection was intended for agency "personnel" records
only. Consequently, agencies became free to consider withholding a wide range of
information as appropriate under Exemption 2.
(16)

Some differences among the courts of appeals for circuits other than the D.C.
Circuit remain, however, with respect to the degree to which Exemption 2
information must be personnel-related as a threshold matter. Two 1997 appellate
decisions, which are discussed in detail below -- see "High 2": Risk of Circumvention
-- illustrate the narrow distinctions made in these jurisdictions, specifically the
Courts of Appeals for the Ninth and Tenth Circuits, concerning this notion of
"personnel-relatedness." (17) These decisions and their progeny, however,
demonstrate the willingness (18) of the courts and Congress to accord appropriate
protection to highly sensitive information under Exemption 2, (19) or otherwise. (20)


"Low 2": Trivial Matters

Exemption 2 of the FOIA protects from disclosure internal matters of a
relatively trivial nature. (21) As its legislative and judicial history make clear, in this "low
2" aspect Exemption 2 is the only exemption in the FOIA having a conceptual
underpinning totally unrelated to any harm caused by disclosure per se. (22) Rather,
this aspect of the exemption is based upon the rationale that the very task of
processing and releasing some requested records would place an administrative
burden on the agency that would not be justified by any genuine public benefit. (23)
Indeed, a recent decision by the District Court for the District of Columbia
demonstrates, once again, the validity of withholding trivial "low 2" information in the
absence of any harm from the requested disclosure. (24)

For "low 2" in particular, agencies should pay attention to whether the
information at issue "shed[s] significant light" on an agency personnel rule or
practice. (25) Over time, courts have continued to include a variety of trivial
administrative information within the "low 2" aspect of Exemption 2's coverage. For
example, it has been held that routine internal personnel matters, such as
performance standards and leave practices, are included within the scope of the
exemption. (26) Personnel matters of greater public interest, however, such as the
honor code proceedings at issue in Department of the Air Force v. Rose, (27) are not so
covered. (28)

Exemption 2 has been construed to permit the nondisclosure of mundane, yet
far more pervasive administrative data -- such as file numbers, mail routing stamps,
initials, data processing notations, brief references to previous communications, and
other similar administrative markings, including personnel directories in the case of
FBI employees. (29) It also has been held to justify the withholding of more extensive
and substantive portions of administrative records and, most significantly, entire
documents. (30) In some cases, courts have continued to find that information is
exempt under a "low 2" analysis while, at the same time, employing "high 2"
exemption language. (31)

One particular type of administrative document -- federal personnel lists -- has
caused the courts to struggle with the problem of determining when the threshold
Exemption 2 requirement of being "related to" internal agency rules and practices is
satisfied. The personal privacy protection of Exemption 6 -- successfully invoked to
protect the names and home addresses of federal employees (32) -- is generally
unavailable to protect the names and duty addresses of federal employees
inasmuch as there ordinarily is no privacy interest in such information. (See the
discussion of this point under Exemption 6, below.)

In exceptional circumstances, however, information specific to individual
federal employees, such as phone numbers and e-mail addresses, may be
protectible on a "high 2" basis; for instance, personally identifying information,
including individual names of law enforcement officers, has been found to be
properly withheld under Exemption 2 because the consequences of disclosure
would be harm not only to the individuals but also to the effective operation of
government offices. (33) (See Exemption 2, "High 2": Risk of Circumvention, below.)
Additionally, it is Department of Defense policy, based on specific statutory
authority, to accord extraordinary protection under Exemption 6 to the names and
other identifying information of certain military service personnel. (34)

In 1990, the Court of Appeals for the District of Columbia dispositively
addressed the possible protection of federal personnel lists under Exemption 2 in
Schwaner v. Department of the Air Force. (35) In a two-to-one decision, it held that a
list of the names and duty addresses of military personnel stationed at Bolling Air
Force Base does not meet the threshold requirement of being "related solely to the
internal rules and practices of an agency." (36) The panel majority ruled that "the list
does not bear an adequate relation to any rule or practice of the Air Force as those
terms are used in exemption 2." (37) In so doing, it gave a new, stricter interpretation
to the term "related to" under Exemption 2, for "low 2" purposes, (38) holding that if the
information in question is not itself actually a "rule or practice," then it must "shed
significant light" on a "rule or practice" in order to qualify. (39) The D.C. Circuit
concluded that "lists do not necessarily (or perhaps even normally) shed significant
light on a rule or practice; insignificant light is not enough." (40) Thus, under Schwaner,
this aspect of Exemption 2 is not avail-able to shield agencies from the burdens of
processing requests for federal personnel lists. (41)

The second part of the "low 2" formulation concerns whether there "is a
genuine and significant public interest" in disclosure of the records requested. (42) An
illustration of how this "public interest" delineation has been drawn can be found in a
decision in which large portions of a FOIA training manual used by the Securities
and Exchange Commission were ruled properly withholdable as trivial and of no
public interest, (43) while another portion, because of a discerned "public interest" in it,
was not. (44) This decision is reflective of the D.C. Circuit's admonition in Founding
Church of Scientology v. Smith
(45) that "a reasonably low threshold should be
maintained for determining when withheld administrative material relates to
significant public interests." (46)

The nature of this "public interest" in "low 2" cases was affected by the
Supreme Court's decision in United States Department of Justice v. Reporters
Committee for Freedom of the Press
. (47) In Reporters Committee, the Supreme Court
held that the "public interest" depended on the nature of the document sought and
its relationship to "the basic purpose [of the FOIA] 'to open agency action to the light
of public scrutiny.'" (48) The Court concluded that the FOIA's "core purposes" would not
be furthered by disclosure of a record about a private individual, even if it "would
provide details to include in a news story, [because] this is not the kind of public
interest for which Congress enacted the FOIA." (49) It also emphasized that a
particular FOIA requester's intended use of the requested information "has no
bearing on the merits of his or her FOIA request" and that FOIA requesters therefore
should be treated alike. (50) (See the further discussion of this decision under
Exemption 6, The Reporters Committee Decision, below.)

Although the Supreme Court's decision in Reporters Committee is based on
an analysis of Exemption 7(C), its interpretation of what constitutes "public interest"
under the FOIA logically may be applicable under Exemption 2 as well. (51) After
Reporters Committee, courts increasingly have focused upon the lack of any
"legitimate public interest" when applying this aspect of Exemption 2 to information
found to be related to an agency's internal practices. (52) Indeed, a number of courts
had already been taking such an approach in analyzing "low 2" cases before
Reporters Committee. (53) Nevertheless, there remains the fact that this aspect of
Exemption 2 simply does not cover any information in which there is "a genuine and
significant public interest." (54)

At the same time, as a matter of longstanding practice, agencies have found
that disclosing "low 2" information -- which by its very nature is nothing more than
"trivial" -- is in many instances less burdensome than bothering to invoke the
exemption to withhold it. (55) Accordingly, in practice, agencies may continue to
disclose such information in the exercise of their administrative discretion. (56)


"High 2": Risk of Circumvention

The second category of information covered by Exemption 2 -- internal
matters of a far more substantial nature (57) the disclosure of which would risk the
circumvention of a statute or agency regulation -- has generated considerable
controversy over the years. In Department of the Air Force v. Rose, (58) the Supreme
Court specifically left open the question of whether such records fall within
Exemption 2 coverage. Most of the cases first developed this aspect of the
exemption in the context of law enforcement manuals containing sensitive staff
instructions. For example, the position adopted by the Court of Appeals for the
Eighth Circuit on this subject is that Exemption 2 does not relate to such matters,
but that subsection (a)(2)(C) of the FOIA, (59) which arguably excludes law enforcement
manuals from the automatic disclosure provisions of the FOIA, bars disclosure of
manuals whose release to the public would significantly impede the law
enforcement process. (60) Although tacitly approving the Eighth Circuit's argument,
the Courts of Appeals for the Fifth and Sixth Circuits have an alternative rationale for
withholding law enforcement manuals: Disclosure would allow persons
"simultaneously to violate the law and to avoid detection" (61) by impeding law
enforcement efforts. (62)

The majority of the courts in other circuits, however, have placed greater
weight on the House Report (63) in this respect and accordingly have held that
Exemption 2 is applicable to internal administrative and personnel matters,
including law enforcement manuals, to the extent that disclosure would risk
circumvention of an agency regulation or statute or impede the effectiveness of an
agency's law enforcement activities. (64)

The Court of Appeals for the District of Columbia Circuit adopted this majority
approach when the full court addressed the issue in Crooker v. ATF, a case involving
a law enforcement agents' training manual. (65) Although not explicitly overruling its
earlier en banc decision in Jordan v. United States Department of Justice, which held
that guidelines for the exercise of prosecutorial discretion were not properly
withholdable, (66) the en banc decision in Crooker specifically rejected the rationale of
Jordan that Exemption 2 could not protect law enforcement manuals or other
documents whose disclosure would risk circumvention of the law. (67) The Crooker
decision thus stands at the head of a long line of cases interpreting Exemption 2 to
encompass protection for internal agency information the sensitivity of which is
readily recognized. (68)

In Crooker, the D.C. Circuit accordingly fashioned a two-part test for
determining which sensitive materials are exempt from mandatory disclosure under
Exemption 2. This test requires both:

(1) that a requested document be "predominantly internal," (69) and

(2) that its disclosure "significantly risks circumvention of agency regulations
or statutes." (70)

Whether there is any public interest in disclosure is legally irrelevant under
this "anti-circumvention" aspect of Exemption 2. (71) Rather, the concern under "high 2"
is that a FOIA disclosure should not "benefit those attempting to violate the law and
avoid detection." (72) Thus, this aspect of Exemption 2 fundamentally rests upon a
determination of reasonably expected harm. (73)

In years past, it was relatively easy to meet the first part of the Crooker test
that the materials be "predominantly internal." (74) The D.C. Circuit established specific
guidance on what constitutes an "internal" document in Cox v. United States
Department of Justice
, which held protectible information that

. .
.
. . .
(75)

Reflecting the high degree of deference that is implicitly accorded law
enforcement activities under this substantive aspect of Exemption 2, (76) courts have
treated a wide variety of information pertaining to such activities as "internal,"
including:

(1) general guidelines for conducting investigations; (77)

(2) guidelines for conducting post-investigation litigation; (78)

(3) guidelines for identifying law violators; (79)

(4) a study of agency practices and problems pertaining to undercover
agents; (80)

(5) sections of a Bureau of Prisons manual that summarize procedures for
security of prison control centers, including escape prevention plans, control of keys
and locks within a prison, instructions regarding transportation of federal prisoners,
and the arms and defensive equipment inventories maintained in the facility; (81) and

(6) vulnerability assessments. (82)

In what is perhaps the broadest application of this standard, a law
enforcement document distributed to 1700 state, federal, and foreign law
enforcement agencies was held to meet the test of "predominant internality" when
its dissemination was necessary for maximum law enforcement effectiveness and
any access by the general public was strictly barred. (83)

On the other hand, some courts have been reluctant to extend Exemption 2
protections in the non-law enforcement context without first finding that the records
at issue are clearly predominantly internal. In 1992, the District Court for the District
of Columbia held that a computer-calculating technique used by the Department of
Transportation to determine the safety rating for motor carriers was not purely
internal because it was used to determine "whether and to what extent certain
violations will have any legal effect or carry any legal penalty." (84) That same court
held that docu-ments relating to the procurement of telecommunications services by
the federal government could not qualify as "primarily" internal because of the
project's "massive" scale and significance. (85) Another district court, the United States
District Court for the District of Oregon, held that a daily diary used to verify contract
compliance did not contain internal instructions to government officials and
therefore could not be withheld under Exemption 2. (86)

In two decisions narrowly construing Exemption 2, the Courts of Appeals for
the Ninth and Tenth Circuits refused to protect maps showing nest site locations of
two different species of birds because the documents lacked sufficient predominant
internality under a rigid interpretation of Exemption 2's language. (87) Declaring that
the statutory phrase "internal personnel" modified both "rules" and "practices" of an
agency, the Tenth Circuit turned down arguments from the Forest Service that the
maps related to agency practices in that they helped Forest Service personnel
perform their management duties. (88) Refusing to consider the potential harm from
disclosure of such maps, (89) the Tenth Circuit declared that it would "stretch[] the
language of the exemption too far to conclude that owl maps 'relate' to personnel
practices of the Forest Service." (90) In reaching this decision, however, the Tenth
Circuit relied on an earlier opinion by the D.C. Circuit, (91) the rationale of which
subsequently was specifically repudiated by that court. (92)

Agreeing in a related case that such wildlife maps may not be protected from
disclosure despite the potential risk of harm from their disclosure, the Ninth Circuit
did not unqualifiedly accept the rationale of its circuit neighbor: While declaring that
the maps bore "no meaningful relationship to the 'internal personnel rules and
practices' of the Forest Service," (93) it instead stressed that the maps "do[] not tell the
Forest Service how to catch lawbreakers [or] tell lawbreakers how to avoid the
Forest Service's enforcement efforts," and it thereby specifically distinguished (and
thus left undisturbed) its previous significant Exemption 2 decisions involving law
enforcement records. (94) The Ninth Circuit's decision therefore has left much room for
"high 2" protection of any information holding law enforcement significance. (95)

Fundamental to any such determination of Exemption 2 applicability, of
course, is consideration of the basic character of the records involved. Regardless of
the Tenth Circuit's decision in Audubon Society, (96) there is a common thread running
through the other cases that have considered the matter: Where the stakes are high
-- e.g., the records at hand consist of sensitive law enforcement information -- judicial
endorsement of "high 2" protection is commensurately most likely. (97)

Indeed, in the foundation case for "high 2" determinations, Crooker v. ATF, (98)
the D.C. Circuit based its decision to uphold protection of a sensitive law
enforcement training manual on "the overall design of FOIA, the explicit comments
made in the House [legislative history], the cautionary words of the Supreme Court
in Rose, and even common sense." (99) Citing its prior reliance on Exemption 2 to
protect informant codes, (100) the D.C. Circuit in Crooker pointedly indicated that "the
scope of Exemption 2 [is not restricted] to minor employment matters." (101)
Accordingly, even nonpersonnel-related federal law enforcement documents that
were widely disseminated to nonfederal law enforcement agencies have been held
to be sufficiently internal for purposes of Exemption 2 protection. (102)

Often the "internality" of the documents is readily assumed; in those cases
courts focus on what constitutes circumvention of legal requirements. Critically
important are records that reveal the nature and extent of a particular investigation;
these have been repeatedly held protectible on this "circumvention" basis. (103) On a
point of increasing significance, the nondis-closure of computer codes used by law
enforcement agencies that might provide the sophisticated requester with access to
information concerning agency investigations stored in a computer system likewise
has been upheld on this basis. (104) Nondisclosure of other sensitive computer-related
information that might permit unauthorized access to agency communications
systems has also been upheld under the same rationale. (105) However, in an
exceptional decision, one court refused to apply this aspect of Exemption 2 to
procedures that were designed to protect against states "circumventing" federal
audit criteria for welfare reimbursement -- thereby showing special regard for the
legal status of states. (106)

As mentioned above, Exemption 2's "circumvention" protection also is readily
applicable to vulnerability assessments, which are perhaps the quintessential type
of record warranting protection on that basis; such records generally assess an
agency's vulnerability (or that of another institution) to some form of outside
interference or harm by identifying those programs or systems deemed the most
sensitive and describing specific security measures that can be used to counteract
such vulnerabilities. (107) A prime example of vulnerability assessments warranting
protection under "high 2" are the computer security plans that all federal agencies
are required by law to prepare. (108) In a decision involving such a document, for
example, Schreibman v. United States Department of Commerce, (109) Exemption 2 was
invoked to prevent unauthorized access to information which could result in
"alternation [sic], loss, damage or destruction of data contained in the computer
system." (110) It should be remembered, however, that even such a sensitive document
must be reviewed to determine whether any "reasonably segregable" portion can be
disclosed without harm. (111) (See the further discussions of this point under
Procedural Requirements, "Reasonably Segregable" Obligation, above, and
Litigation Considerations, "Reasonably Segregable" Requirements, below.)

In every case, agency officials responsible for reviewing documents
responsive to FOIA requests, prior to undertaking disclosure, should be sure to avail
themselves of the full measure of Exemption 2's protection for critical infrastructure
information. (112) That responsibility is of utmost importance when the agency
information involves the need to protect critical systems, facilities, stockpiles, and
other assets from security breaches and harm. (113) In response to continued threats of
terrorism, guidance issued by the White House Chief of Staff in March 2002
highlighted the crucial nature of that responsibility:

. . .
(114)

Release of various categories of information other than those that already
have been described above also has been found likely to result in harmful
circumvention:

(1) information that would reveal the identities of informants; (115)

(2) information that would reveal the identities of undercover agents; (116)

(3) sensitive administrative notations in law enforcement files; (117)

(4) security techniques used in prisons; (118)

(5) agency audit guidelines; (119)

(6) agency testing or employee rating materials; (120)

(7) codes that would identify intelligence targets; (121)

(8) agency credit card numbers; (122)

(9) an agency's unclassified manual detailing the categories of information
that are classified, as well as their corresponding classification levels; (123) and

(10) inspection and examination data concerning border security. (124)

With respect to file numbers of a sensitive nature, it is noteworthy that district
courts in two very similar cases employed opposite legal approaches: In a decision
that stands as an aberration, the District Court for the District of Kansas found that
case file numbers used in the Department of Justice's Office of Professional
Responsibility must be released because "the documents in question do[] not clear
the [personnel practices] hurdle"; (125) soon after, however, the District Court for the
District of Columbia found that similar FBI file numbers "were properly withheld." (126)

Under some circumstances, Exemption 2 may be applied to prevent potential
circumvention through a "mosaic" approach -- information which would not by itself
reveal sensitive law enforcement information can nonetheless be protected to
prevent damage that could be caused by the assembly of different pieces of similar
information by a requester. (127) This circumstance arose in a case involving a request
for "Discriminant Function Scores" used by the IRS to select tax returns for
examination. (128) Although the IRS conceded that release of any one individual's tax
score would not disclose how returns are selected for audit, it took the position that
the routine release of such scores would enable the sophisticated requester to
discern, in the aggregate, its audit criteria, thus facilitating circumvention of the tax
laws. The court accepted this rationale as an appropriate basis for affording
protection under Exemption 2. (129) In a related case, one court upheld the denial of
access to an IRS memorandum containing tolerance criteria used by the agency in its
investigations, finding that disclosure would "undermine the enforcement of . . .
internal revenue laws." (130)

Although originally, as in Crooker, the "circumvention" protection afforded by
Exemption 2 was applied almost exclusively to sensitive portions of criminal law
enforcement manuals, it since has been extended to civil enforcement and
regulatory matters, including some matters that are not law enforcement activities
in the traditional sense. (131) In a pivotal case on this point, the National Treasury
Employees Union sought documents known as "crediting plans," records used to
evaluate the credentials of federal job applicants; the Customs Service successfully
argued that disclosure of the plans would make it difficult to evaluate the applicants
because they could easily exaggerate or even fabricate their qualifications, such
falsifications would go undetected because the government lacked the resources
necessary to verify each application, and unscrupulous future applicants could
thereby gain an unfair competitive advantage. (132) The D.C. Circuit approved the
withholding of such criteria under a refined application of Crooker, which focused
directly on its second requirement, and held that the potential for circumvention of
the selection program, as well as the general statutory and regulatory mandates to
enforce applicable civil service laws, was sufficient to bring the information at issue
within the protection of Exemption 2. (133) The agency demonstrated "circumvention"
by showing that disclosure would either render the documents obsolete for their
intended purpose, make the plan's criteria "operationally useless" or compromise the
utility of the selection program. (134)

This approach was expressly followed by the Court of Appeals for the
Seventh Circuit in Kaganove to withhold from an unsuccessful job applicant the
agency's merit promotion rating plan on the basis that disclosure of the plan "would
frustrate the document's objective [and] render it ineffectual" for the very reasons
noted in the NTEU case. (135) Similarly, the District Court for the District of Columbia
permitted the Department of Education to withhold information consisting of trigger
figures, error rates, and potential fines that provide "internal guidance to staff about
how, when, and why they should concentrate their regulatory oversight." (136) The
court agreed with the agency that "[g]iving institutions the wherewithal to engage in
a cost/benefit analysis in order to choose their level of compliance would
substantially undermine [its] regulatory efforts and thwart its program oversight." (137)

It is noteworthy that the Seventh Circuit in Kaganove, (138) the Ninth Circuit in
Dirksen, (139) and the D.C. Circuit in NTEU (140) all reached their results even in the
absence of any particular agency regulation or statute to be circumvented. (141) Thus,
the second part of the Crooker test should properly be satisfied by a showing that
disclosure would risk circumvention of general legal requirements. (142) In this regard,
it is worth noting that the District Court for the District of Columbia has expressly
ruled, in the context of Exemption 2, that the "passage of time" does not necessarily
"reduce[] the protections of a properly asserted exemption." (143)

Lastly, under the Freedom of Information Reform Act of 1986, (144) many of the
materials previously protectible only on a "high 2" basis may be protectible also
under Exemption 7(E). (145) Several post-amendment cases have held such information
to be exempt from disclosure under both Exemption 2 and Exemption 7(E). (146) While
Exemption 2 must still be used if any information fails to meet Exemption 7's "law
enforcement" threshold, Exemption 2's history and judicial interpretations should be
helpful in applying Exemption 7(E). (See the discussion of Exemption 7(E), below.)


Homeland Security-Related Information

Since the horrific events of September 11, 2001, and given the possibilities for
further terrorist activity in their aftermath, all federal agencies are concerned with
the need to protect critical systems, facilities, stockpiles, and other assets (often
referred to as "critical infrastructure") from security breaches and harm -- and in
some instances from their potential use as weapons of mass destruction in and of
themselves. Such protection efforts, of course, necessarily must include the
protection of agency information that reasonably could be expected to enable
someone to succeed in causing the feared harm, not all of which can appropriately
be accorded national security classification as a practical matter. (147) In addressing
these heightened homeland security concerns, all agencies should be aware of the
protection that is available under Exemption 2, perhaps foremost among all other
FOIA exemptions, for such sensitive information. (148)

The types of information that may warrant Exemption 2 protection for
homeland security-related reasons include, for example, agency vulnerability
assessments (149) and evaluations of items of critical infrastructure that are internal to
the government. (150) Since September 11, 2001, all courts that have considered
nonclassified but nonetheless highly sensitive information, such as container-inspection data from a particular port (151) or maps of the downstream flooding
consequences of dam failure, (152) have justifiably determined -- either under
Exemption 2 or, upon a finding of a law enforcement connection, (153) under
Exemptions 7(E) or 7(F) -- that such information must be protected from disclosure in
order to avoid the harms described both in the recent Presidential Directive
concerning Homeland Security (154) and by Congress in the exemptions to the Freedom
of Information Act. (155) (See also the discussions of related exemptions under
Exemption 7, Exemption 7(E), and Exemption 7(F), below.) Agencies should be sure
to avail themselves of the full measure of Exemption 2's protection for their critical
infrastructure information as they continue to generate more of it, and assess its
heightened sensitivity, in the wake of the September 2001 terrorist attacks. (156)

Lastly, whatever the safeguarding label that an agency might (or might not)
use for the information maintained by it that has special sensitivity -- e.g., "for official
use only" (FOUO), "restricted data" (a Department of Energy designation), or
"sensitive homeland security information" (SHSI) (157) -- whenever predominantly
internal agency records may reveal information the disclosure of which could
reasonably be expected to cause any of the harms described above, responsible
federal officials should carefully consider the propriety of protecting such
information under Exemption 2. (158) (See the additional discussion of such matters
under Exemption 1, "Homeland Security-Related information," above.)


    1. 5 U.S.C. § 552(b)(2) (2000).

    2. See FOIA Update, Vol. X, No. 3, at
    3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application
    of Exemption Two"); see, e.g., Schiller v. NLRB, 964 F.2d
    1205, 1207 (D.C. Cir. 1992) (describing "low 2" and "high 2" aspects of
    exemption).

    3. See, e.g., USA PATRIOT Act of 2001, 42 U.S.C.A.
    § 5195c(e) (West Supp. 2003) (defining "critical infrastructure" as "systems
    and assets, whether physical or virtual, so vital to the United States that
    the incapacity or destruction of such systems and assets would have a debilitating
    impact on security, national economic security, national public health or
    safety, or any combination of those matters"); see also FOIA
    Post
    , "FOIA Officers Conference Held on Homeland Security" (posted
    7/3/03) (discussing protection of "critical infrastructure information"
    within broader context of "protection of homeland security-related information").

    4. See FOIA Post, "New Attorney General
    FOIA Memorandum Issued" (posted 10/15/01) (highlighting government's "need
    to protect critical systems, facilities, stockpiles, and other assets from
    security breaches"); see also White House Memorandum for Heads of
    Executive Departments and Agencies Concerning Safeguarding Information (Mar.
    19, 2002) [hereinafter White House Homeland Security Memorandum], reprinted
    in
    FOIA Post (posted 3/21/02) (directing agencies, in accordance
    with accompanying memorandum from Information Security Oversight Office
    and Office of Information and Privacy, to review their documents in order
    to ensure that they are properly applying FOIA exemptions, specifically
    including Exemption 2, to information that is unclassified but nevertheless
    sensitive).

    5. See Attorney General's Memorandum for Heads
    of All Federal Departments and Agencies Regarding the Freedom of Information
    Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum],
    reprinted in FOIA Post (posted 10/15/01) (emphasizing the
    importance of "enhancing the effectiveness of our law enforcement agencies"
    -- which agencies should "carefully consider . . . when making
    disclosure determinations under the FOIA"); see also White House
    Homeland Security Memorandum, reprinted in FOIA Post (posted
    3/21/02) (calling upon agencies to identify and then safeguard "information
    that could be misused to harm the security of our nation and the safety
    of our people"); see also, e.g., Living Rivers, Inc. v. United
    States Bureau of Reclamation
    , 272 F. Supp. 2d 1313, 1322 (D. Utah 2003)
    (recognizing law enforcement significance of agency maps in post-9/11 context);
    cf. FOIA Post, "Critical Infrastructure Information Regulations
    Issued by DHS" (posted 2/27/04) (emphasizing critical distinction between
    "protecting" and "safeguarding" information).

    6. S. Rep. No. 89-813, at 8 (1965).

    7. H. Rep. No. 89-1497, at 10 (1966), reprinted
    in
    1966 U.S.C.C.A.N. 2418, 2427; see also id. at 5 ("[P]remature
    disclosure of agency plans that are undergoing development . . . ,
    particularly plans relating to expenditures, could have adverse effects
    upon both public and private interest[s].").

    8. 425 U.S. 352 (1976).

    9. Id. at 369.

    10. Id. at 369-70.

    11. Id. at 369.

    12. Compare Jordan v. United States Dep't
    of Justice
    , 591 F.2d 753, 764 (D.C. Cir. 1978) (en banc) (exemption
    covers only internal personnel matters), and Allen v. CIA,
    636 F.2d 1287, 1290 (D.C. Cir. 1980) (exemption covers nothing more than
    trivial administrative personnel rules), with Lesar v. United
    States Dep't of Justice
    , 636 F.2d 472, 485 (D.C. Cir. 1980) (exemption
    covers routine matters of merely internal interest), and Cox v.
    United States Dep't of Justice
    , 601 F.2d 1, 4 (D.C. Cir. 1979) (per
    curiam) (same). See generally DeLorme Publ'g Co. v. NOAA,
    917 F. Supp. 867, 875-76 & n.10 (D. Me. 1996) (describing debate among
    various circuit courts on meaning of Exemption 2's language), appeal
    dismissed per stipulation
    , No. 96-1601 (1st Cir. July 8, 1996).

    13. 721 F.2d 828 (D.C. Cir. 1983).

    14. Id. at 830-31 n.4; see also Massey
    v. FBI
    , 3 F.3d 620, 622 (2d Cir. 1993) (holding that Exemption 2 applies
    to "non-employee information," such as informant symbol numbers and file
    numbers); Schiller, 964 F.2d at 1208 (finding Exemption 2 appropriate
    to withhold Equal Access to Justice Act litigation strategies); Dirksen
    v. HHS
    , 803 F.2d 1456, 1458-59 (9th Cir. 1986) (approving use of Exemption
    2 to withhold Medicare claims-processing guidelines); Canning v. United
    States Dep't of the Treasury
    , No. 94-2704, slip op. at 15 (D.D.C. May
    7, 1998) (concluding that Secret Service reliance on Exemption 2 for nondisclosure
    of internal office listing was proper).

    15. 636 F.2d 1287, 1290 n.21 (D.C. Cir. 1980) (taking
    unduly narrow position in rejecting agency argument that Exemption 2 should
    apply to any routine internal matters in which public lacks interest).

    16. See FOIA Update, Vol. V, No. 1,
    at 10 ("The Unique Protection of Exemption 2") (advising that Scientology
    "expressly" held that the Allen "personnel" restriction no longer
    applies).

    17. Maricopa Audubon Soc'y v. United States Forest
    Serv.
    , 108 F.3d 1082 (9th Cir. 1997); Audubon Soc'y v. United States
    Forest Serv.
    , 104 F.3d 1201 (10th Cir. 1997).

    18. See Schwaner v. Dep't of the Air Force,
    898 F.2d 793, 796 (D.C. Cir. 1990) ("Judicial willingness to sanction a
    weak relation to 'rules and practices' may be greatest when the asserted
    government interest is relatively weighty.").

    19. See, e.g., Coastal Delivery Corp. v.
    United States Customs Serv.
    , 272 F. Supp. 2d 958, 964 (C.D. Cal. 2003)
    (finding law enforcement purpose, as necessary under Ninth Circuit precedent
    to uphold application of Exemption 2, for protection of container-inspection
    rates at Los Angeles/Long Beach seaport), reconsideration denied,
    No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed
    voluntarily
    , No. 03-55833 (9th Cir. Aug. 26, 2003).

    20. See Living Rivers, Inc. v. United States
    Bureau of Reclamation
    , 272 F. Supp. 2d 1313, 1322 (D. Utah 2003) (affirming
    withholding of flood maps under Exemption 7(F), rather than Exemption 2,
    while acknowledging that court was bound by 1997 Tenth Circuit precedent
    severely limiting application of Exemption 2 to records regarding personnel
    rules and personnel practices); Sw. Ctr. for Biological Diversity v.
    USDA
    , 170 F. Supp. 2d 931, 943-47 (D. Ariz. 2000) (upholding protection
    for rare bird site-location information based on post-Maricopa Exemption
    3 statute), aff'd, 314 F.3d 1060 (9th Cir. 2002); see also
    Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1082
    (6th Cir. 1998) (holding that the evidence presented was "insufficient to
    create the significant, meaningful relationship with IRS internal personnel
    rules and practices required by Exemption 2," while at the same time explicitly
    recognizing that "the sensitive nature of certain information such as FBI
    informant codes gives the government in such cases a significant interest
    in nondisclosure," and ultimately applying another FOIA exemption instead);
    cf. Jones v. FBI, 41 F.3d 238, 244-45 (6th Cir. 1994) (concluding
    that FBI properly deleted, under Exemption 2, symbol numbers used internally
    to identify confidential sources).

    21. See, e.g., Dep't of the Air Force v.
    Rose
    , 425 U.S. 352, 369-70 (1976); Lesar v. United States Dep't of
    Justice
    , 636 F.2d 472, 485 (D.C. Cir. 1980).

    22. See Rose, 425 U.S. at 369-70.

    23. See FOIA Update, Vol. 5, No. 1,
    at 10-11 ("FOIA Counselor: The Unique Protection of Exemption 2"); see
    also, e.g.
    , Martin v. Lauer, 686 F.2d 24, 34 (D.C. Cir. 1982)
    (Exemption 2 "serves to relieve the agency from the administrative burden
    of processing FOIA requests when internal matters are not likely to be the
    subject of public interest."); Pinnavaia v. FBI, No. 03-112, slip
    op. at 8 (D.D.C. Feb. 25, 2004) (protecting FBI office telephone numbers,
    a FedEx account number, and an FBI assigned radio frequency -- all of which
    are "related to the internal practices of the FBI, disclosure of which would
    disrupt official business," and "would serve no public benefit"); Fisher
    v. United States Dep't of Justice
    , 772 F. Supp. 7, 10 n.8 (D.D.C. 1991)
    (citing Martin, 686 F.2d at 34), aff'd, 968 F.2d 92 (D.C.
    Cir. 1992) (unpublished table decision).

    24. Edmonds v. FBI, 272 F. Supp. 2d 35, 51
    (D.D.C. 2003) (finding showing of "foreseeable adverse consequence" to be
    irrelevant where FBI internal rules and regulations for granting waiver
    from language-testing requirements, pertaining only to particular employee
    applicants, were trivial and of no public interest).

    25. FOIA Update, Vol. XI, No. 2, at 2 (quoting
    Schwaner v. Dep't of the Air Force, 898 F.2d 793, 795 (D.C. Cir.
    1990), and noting its singularly stringent interpretation of Exemption 2);
    see also Canning v. United States Dep't of the Treasury, No.
    94-2704, slip op. at 15 (D.D.C. May 7, 1998) (finding narrative information
    related to Secret Service contact list to be "clearly 'practices of an agency'"
    and therefore properly protected).

    26. See, e.g., Small v. IRS, 820 F.
    Supp. 163, 168 (D.N.J. 1992) (employee service identification numbers);
    Pruner v. Dep't of the Army, 755 F. Supp. 362, 365 (D. Kan. 1991)
    (Army regulation concerning discharge of conscientious objectors); FBI
    Agents Ass'n v. FBI
    , 3 Gov't Disclosure Serv. (P-H) ¶ 83,058, at
    83,566-67 (D.D.C. Jan. 13, 1983) (information relating to performance ratings,
    recognition and awards, leave practices, transfers, travel expenses, and
    allowances); NTEU v. United States Dep't of the Treasury, 487 F.
    Supp. 1321, 1324 (D.D.C. 1980) (bargaining history and IRS interpretation
    of labor contract provisions).

    27. 425 U.S. at 365-70.

    28. See, e.g., Vaughn v. Rosen, 523
    F.2d 1136, 1140-43 (D.C. Cir. 1975) (evaluations of how effectively agency
    policies were being implemented); Globe Newspaper Co. v. FBI, No.
    91-13257, 1992 WL 396327, at **2-3 (D. Mass. Dec. 29, 1992) (amount paid
    to FBI informant found to be personally involved in "ongoing criminal activities");
    News Group Boston, Inc. v. Nat'l R.R. Passenger Corp., 799 F. Supp.
    1264, 1266-68 (D. Mass. 1992) (disciplinary actions taken against Amtrak
    employees), appeal dismissed, No. 92-2250 (1st Cir. Dec. 4, 1992);
    North v. Walsh, No. 87-2700, slip op. at 3 (D.D.C. June 25, 1991)
    (travel vouchers of senior officials of Office of Independent Counsel);
    FBI Agents Ass'n, 3 Gov't Disclosure Serv. at 83,566-67 (standards
    of conduct, grievance procedures, and EEO procedures); Ferris v. IRS,
    2 Gov't Disclosure Serv. (P-H) ¶ 82,084, at 82,363 (D.D.C. Dec. 23, 1981)
    (SES performance objectives).

    29. See, e.g., Hale v. United States Dep't
    of Justice
    , 973 F.2d 894, 902 (10th Cir. 1992) (protecting "administrative
    markings and notations on documents; room numbers, telephone numbers, and
    FBI employees' identification numbers; a checklist form used to assist special
    agents in consensual monitoring; personnel directories containing the names
    and addresses of FBI employees; and the dissemination page of Hale's 'rap
    sheet'"), cert. granted, vacated & remanded on other grounds,
    509 U.S. 918 (1993); Lesar, 636 F.2d at 485-86 (holding that informant
    codes are "a matter of internal significance in which the public has no
    substantial interest [and which] bear no relation to the substantive contents
    of the records released"); Scherer v. Kelley, 584 F.2d 170, 175-76
    (7th Cir. 1978) (protecting "file numbers, initials, signature and mail
    routing stamps, references to interagency transfers, and data processing
    references"); Davis v. United States Dep't of Justice, No. 00-2457,
    slip op. at 8 (D.D.C. Mar. 21, 2003) (declaring that FBI "[s]ource symbol
    numbers and source file numbers fall squarely within the scope of Exemption
    2 as 'low 2' exempt information"); Hamilton v. Weise, No. 95-1161,
    1997 U.S. Dist. LEXIS 18900, at *8 (M.D. Fla. Oct. 1, 1997) (protecting
    purely administrative Customs Service codes concerning individual pilot);
    Branch v. FBI, 658 F. Supp. 204, 208 (D.D.C. 1987) (establishing
    that "[t]here is no question that [source symbol and file numbers are] trivial
    and may be withheld as a matter of law under Exemption 2"). But see
    Badalamenti v. United States Dep't of State, 899 F. Supp. 542, 547
    (D. Kan. 1995) (determining that the agency's "bare assertion fails to demonstrate
    that the file and case numbers relate to an agency rule or practice or are
    otherwise encompassed within exemption 2"); Manna v. United States Dep't
    of Justice
    , 832 F. Supp. 866, 880 (D.N.J. 1993) (deciding that "DEA
    failed to describe or explain what these 'internal markings' are . . .
    [and if they] relate to internal rules or practice and whether these markings
    constitute trivial administrative matters of no public interest"); Fitzgibbon
    v. United States Secret Serv.
    , 747 F. Supp. 51, 57 (D.D.C. 1990) (finding
    that administrative markings do not "relate to" an agency rule or practice).

    30. See, e.g., Schiller v. NLRB, 964
    F.2d 1205, 1208 (D.C. Cir. 1992) (internal time deadlines and procedures,
    recordkeeping directions, instructions on contacting agency officials for
    assistance and guidelines on agency decisionmaking); Nix v. United States,
    572 F.2d 998, 1005 (4th Cir. 1978) (cover letters of merely internal significance);
    Edmonds, 272 F. Supp. 2d at 50-51 (FBI internal rules and regulations
    for granting waivers from ordinary language-testing requirements); Amro
    v. United States Customs Serv.
    , 128 F. Supp. 2d 776, 783 (E.D. Pa. 2001)
    ("record keeping directions, instructions on contacting agency officials
    for assistance and guidelines on agency decision making"); Wilson v.
    Dep't of Justice
    , No. 87-2415, 1991 WL 11457, at *2 (D.D.C. June 13,
    1991) (State Department transmittal slips from low-level officials); Cox
    v. United States Dep't of Justice
    , No. 87-158, slip op. at 3 (D.D.C.
    Nov. 17, 1987) (investigation code name, supervising unit, details of property,
    and funding).

    31. See, e.g., Maydak v. United States Dep't
    of Justice
    , 254 F. Supp. 2d 23, 36 (D.D.C. 2003) (protecting Bureau
    of Prisons' internal codes for electronic systems on the ground that inmates
    "could access information regarding other inmates," and noting that courts
    have "consistently found no significant public interest in the disclosure
    of identifying codes"); Palacio v. United States Dep't of Justice,
    No. 00-1564, 2002 U.S. Dist. LEXIS 2198, at *15 (D.D.C. Feb. 11, 2002) (holding
    that FBI informant codes were properly withheld because "[t]he means by
    which the FBI refers to informants . . . is a matter of internal
    significance in which the public has no substantial interest" and
    "disclosure of the informant codes may . . . harm the FBI's
    legitimate investigative activities"), summary affirmance granted,
    No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31, 2003); Green
    v. DEA
    , No. 98-0728, slip op. at 6 (D.D.C. Sept. 30, 1998) (finding
    justified withholding by DEA of G-DEP numbers -- codes describing classes
    of violators, types of drugs, and suspected locations of criminal activity
    -- as protecting "information . . . both routine [and] internal
    [to the] agency and as . . . of little public interest where
    disclosure may risk circumvention of [law]"), summary affirmance granted
    in pertinent part
    , No. 99-5356, 2000 WL 271988 (D.C. Cir. Feb. 17, 2000);
    Coleman v. FBI, 13 F. Supp. 2d 75, 79 (D.D.C. 1998) (protecting FBI
    source symbol numbers and file numbers both as "low 2" "information [which]
    facilitates administrative operation and recordkeeping," and as "high 2"
    information because disclosure could allow "criminals to redirect their
    activities [to] avoid legal intervention").

    32. See, e.g., FLRA v. United States Dep't
    of the Treasury
    , 884 F.2d 1446, 1452-53 (D.C. Cir. 1989) (relying on
    Exemption 6 to maintain protection of federal employees' home addresses);
    FOIA Update, Vol. III, No. 4, at 3 (delineating privacy protection
    considerations for federal employees); FOIA Update, Vol. VII, No.
    3, at 3-4 (recognizing exceptions to disclosure of identities and work locations
    of certain law enforcement and military personnel); accord Attorney
    General Ashcroft's FOIA Memorandum (placing particular emphasis on personal
    privacy interests).

    33. See, e.g., Pinnavaia, No. 03-112,
    slip op. at 8 (D.D.C. Feb. 25, 2004) (finding FBI Special Agents' beeper
    numbers and cell phone numbers to be properly withheld because their "disclosure
    . . . would disrupt official business" and "would serve no
    public benefit").

    34. See 10 U.S.C. § 130b (2000) (providing
    for nondisclosure of personally identifying information for personnel in
    overseas, sensitive, or routinely deployable units); Department of Defense
    Freedom of Information Act Program Regulations, 32 C.F.R. § 286.12(f)(2)(ii)
    (2003) (restating express authority to withhold names and duty addresses
    for such personnel; Memorandum from Department of Defense Directorate for
    Freedom of Information and Security Review 1 (Oct. 26, 1999) (applying same
    delineation for electronic mail addresses, on privacy-protection grounds);
    cf. Department of Defense Directorate for Administration and Management
    Memorandum Regarding Personally Identifying Information Under the Freedom
    of Information Act (Nov. 9, 2001) (urging careful consideration, given heightened
    security concerns, before DOD disclosure of any lists of names and other
    personally identifying information of DOD personnel) (available at
    www.defenselink.mil/pubs/foi/withhold.pdf).

    35. 898 F.2d at 793.

    36. Id. at 794.

    37. Id.

    38. Id. at 796-97 (distinguishing agency practice
    of collecting information -- found to be insufficiently "related" to qualify
    for "low 2" protection -- from other agency practices, e.g., legitimate
    deletion of sensitive notations related to FBI informant symbol numbers
    (citing Lesar, 636 F.2d at 485-86)).

    39. Id. at 797; see also Audubon
    Soc'y v. United States Forest Serv.
    , 104 F.3d 1201, 1204 (10th Cir.
    1997) (concluding that maps of habitats of owls deemed "threatened" under
    Endangered Species Act are not sufficiently related to internal personnel
    rules and practices).

    40. Schwaner, 898 F.2d at 797; see DeLorme
    Publ'g Co. v. NOAA
    , 917 F. Supp. 867, 876 (D. Me. 1996) ("Nothing in
    Exemption 2 supports the proposition that government 'information may be
    withheld simply because it manifests an agency practice of collecting
    the information.'" (quoting Schwaner)), appeal dismissed per stipulation,
    No. 96-1601 (1st Cir. July 8, 1996); see also Abraham & Rose,
    P.L.C. v. United States
    , 138 F.3d 1075, 1081 (6th Cir. 1998) (ruling
    that "information [contained in an IRS electronic database] . . .
    is not sufficiently related to a personnel rule or practice to satisfy
    . . . [the] Exemption 2 analysis," but can be protected under
    Exemptions 6 and 7(C)).

    41. See FOIA Update, Vol. XI, No. 2,
    at 2 (modifying prior guidance in light of controlling nature of ruling
    by D.C. Circuit, as circuit of "universal venue" under FOIA). But cf.
    Hale, 973 F.2d at 902 (ruling, in a post-Schwaner decision,
    that "personnel directories containing the names and [office] addresses
    of [most] FBI employees" are properly withheld as "trivial matters of no
    genuine public interest").

    42. Rose, 425 U.S. at 369.

    43. Am. Lawyer Media, Inc. v. SEC, No. 01-1967,
    2002 U.S. Dist. LEXIS 16940, at *8 (D.D.C. Sept. 6, 2002) ("This information
    is the paradigmatic 'trivial administrative matter [that] is of no genuine
    public interest.'"); see also FBI Agents Ass'n, 3 Gov't Disclosure
    Serv. at 83,565-66 (protecting portions of FBI administrative manual while
    finding other portions not to be protectible, because of public interest);
    Church of Scientology v. IRS, 816 F. Supp. 1138, 1149 (W.D. Tex.
    1993) (stating that "public is entitled to know how IRS is allocating" taxpayers'
    money as it pertains to IRS advance of travel funds to its employees), appeal
    dismissed per stipulation
    , No. 93-8431 (5th Cir. Oct. 21, 1993); News
    Group Boston
    , 799 F. Supp. at 1267 (finding legitimate public interest
    in disclosure of case-handling statements despite agency's stated fear that
    information could be misunderstood or misinterpreted by public); Globe
    Newspaper
    , 1992 WL 396327, at *2 (holding that amount paid to FBI informant
    personally involved in continuing criminal activity should be disclosed
    because it "falls squarely within the parameters set by Rose").

    44. Am. Lawyer Media, 2002 U.S. Dist. LEXIS
    16940, at *10 (finding that certain definitions "contain[ing] general legal
    instruction to SEC staff on how to analyze FOIA requests . . .
    must be disclosed").

    45. 721 F.2d 828 (D.C. Cir. 1983).

    46. Id. at 830-31 n.4.

    47. 489 U.S. 749 (1989).

    48. Id. at 772 (quoting Rose, 425 U.S.
    at 372).

    49. Id. at 774.

    50. Id. at 771; see also FOIA Update,
    Vol. X, No. 2, at 5.

    51. See Schwaner, 898 F.2d at 800-01
    (Revercomb, J., dissenting on issue not reached by majority) (relying on
    Reporters Committee's "core purposes" analysis and finding no "meaningful"
    public interest in disclosure of names and duty addresses of military personnel).

    52. See Hale, 973 F.2d at 902 (finding
    no public interest in administrative markings and notations, personnel directories
    containing names and addresses of FBI employees, room and telephone numbers,
    employee identification numbers, consensual monitoring checklist form, and
    rap sheet-dissemination page); Morales Cozier v. FBI, No. 99-0312,
    slip op. at 13 (N.D. Ga. Sept. 25, 2000) (ruling that "facsimile numbers
    of FBI employees . . . constitute trivial matter that could
    not reasonably be expected to be of interest to the public"); Germosen
    v. Cox
    , No. 98 Civ. 1294, 1999 WL 1021559, at *12 (S.D.N.Y. Nov. 9,
    1999) (finding "no legitimate [or genuine] public interest" in source symbol
    numbers and agent identification numbers, as well as in computer access
    codes, telephone and facsimile numbers, and numbers used to denote different
    categories of counterfeit currency), appeal dismissed, No. 00-6041
    (2d Cir. Sept. 12, 2000); Voinche v. FBI, 46 F. Supp. 2d 26, 30 (D.D.C.
    1999) (applying Exemption 2 to telephone number of FBI's Public Corruption
    Unit as "trivial administrative matter of no genuine public interest");
    News Group Boston, 799 F. Supp. at 1268 (holding that there is no
    public interest in payroll and job title codes); Buffalo Evening News,
    Inc. v. United States Border Patrol
    , 791 F. Supp. 386, 390-93 (W.D.N.Y.
    1992) (declaring that there is no public interest in "soundex" encoding
    of alien's family name, in whether or not alien is listed in Border Patrol
    Lookout Book, in codes used to identify deportability, in narratives explaining
    circumstances of apprehension, or in internal routing information).

    53. See, e.g., Martin, 686 F.2d at 34
    (Exemption 2 is "designed to screen out illegitimate public inquiries into
    the functioning of an agency."); Lesar, 636 F.2d at 485-86 (public
    has "no legitimate interest" in FBI's mechanism for internal control of
    informant identities); Struth v. FBI, 673 F. Supp. 949, 959 (E.D.
    Wis. 1987) (plaintiff offered no evidence of public interest in source symbol
    or source file numbers). But see Tax Analysts v. United States
    Dep't of Justice
    , 845 F.2d 1060, 1064 n.8 (D.C. Cir. 1988) (Exemption
    2 found inapplicable, without discussion, because of "public's obvious interest"
    in agency copies of court opinions), aff'd on other grounds, 492
    U.S. 136 (1989).

    54. Rose, 425 U.S. at 369; see also
    FOIA Update, Vol. V, No. 1, at 11 (emphasizing "low threshold" for
    required disclosure of such information).

    55. See FOIA Update, Vol. V, No. 1,
    at 11 (advising agencies to invoke "low 2" aspect of Exemption 2 only where
    doing so truly avoids burden); see also, e.g., Fonda v. CIA,
    434 F. Supp. 498, 503 (D.D.C. 1977) (finding that where administrative burden
    is minimal and it would be easier to release information at issue, policy
    underlying Exemption 2 does not permit withholding).

    56. Accord Attorney General's Memorandum for
    Heads of All Federal Departments and Agencies Regarding the Freedom of Information
    Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum],
    reprinted in FOIA Post (posted 10/15/01) (recognizing continued
    agency practice of making discretionary disclosure determinations under
    the FOIA, upon careful consideration of all interests involved).

    57. See, e.g., id. (citing safeguarding
    national security and enhancing effectiveness of law enforcement agencies
    as "fundamental values"); see also White House Memorandum for Heads
    of Executive Departments and Agencies Concerning Safeguarding Information
    Related to Homeland Security (Mar. 19, 2002) [hereinafter White House Homeland
    Security Memorandum], reprinted in FOIA Post (posted 3/21/02)
    (directing agencies to identify sensitive homeland security-related information
    for appropriate safeguarding).

    58. 425 U.S. 352, 364, 369 (1976).

    59. 5 U.S.C. § 552(a)(2)(C) (2000).

    60. See Cox v. Levi, 592 F.2d 460, 462-63
    (8th Cir. 1979); Cox v. United States Dep't of Justice, 576 F.2d
    1302, 1306-09 (8th Cir. 1978).

    61. Hawkes v. IRS, 467 F.2d 787, 795 (6th Cir.
    1972).

    62. See, e.g., id.; Sladek v. Bensinger,
    605 F.2d 899, 902 (5th Cir. 1979).

    63. H. Rep. No. 89-1497, at 10 (1966), reprinted
    in
    1966 U.S.C.C.A.N. 2418, 2427.

    64. See, e.g., Hardy v. ATF, 631 F.2d
    653, 656 (9th Cir. 1980); Caplan v. ATF, 587 F.2d 544, 547 (2d Cir.
    1978); Wilder v. IRS, 607 F. Supp. 1013, 1015 (M.D. Ala. 1985); Fiumara
    v. Higgins
    , 572 F. Supp. 1093, 1102 (D.N.H. 1983).

    65. 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc).

    66. 591 F.2d 753, 771 (D.C. Cir. 1978) (en banc).

    67. See 670 F.2d at 1075 (repudiating rationale
    of Jordan "because it does not appear to comport with the full congressional
    intent underlying the FOIA").

    68. See, e.g., Dirksen v. HHS, 803 F.2d
    1456, 1458-59 (9th Cir. 1986) (affirming nondisclosure of claims-processing
    guidelines that could be used by healthcare providers to avoid audits);
    see also Hardy, 631 F.2d at 657 (holding that "law enforcement
    materials, disclosure of which may risk circumvention of agency regulation,
    are exempt from disclosure" under Exemption 2); Lesar v. United States
    Dep't of Justice
    , 636 F.2d 472, 485 (D.C. Cir. 1980) (extending Exemption
    2 protection to FBI symbol numbers that are used to identify confidential
    informants).

    69. Crooker, 670 F.2d at 1074 (adopting mere
    "predominant internality" standard proposed by Judge Leventhal in concurrence
    in Vaughn v. Rosen, 523 F.2d 1136, 1151 (D.C. Cir. 1975)).

    70. Id. at 1073-74; see also Dorsett
    v. United States Dep't of the Treasury
    , 307 F. Supp. 2d 28, 37 (D.D.C.
    2004) (upholding the applicability of "high 2" protection for Secret Service
    "internal protective investigative information," and reiterating that "'Congress
    evidenced a secondary purpose when it enacted FOIA of preserving the effective
    operation of governmental agencies'" (quoting Crooker, 591 F.2d at
    1074)).

    71. See Voinche v. FBI, 940 F. Supp.
    323, 328 (D.D.C. 1996) (relying on Crooker test, where "public interest
    in disclosure is irrelevant," to find FBI information related to security
    of Supreme Court building and Supreme Court Justices properly withheld under
    Exemption 2), aff'd per curiam, No. 96-5304, 1997 U.S. App. LEXIS
    19089 (D.C. Cir. June 19, 1997); Inst. for Policy Studies v. Dep't of
    the Air Force
    , 676 F. Supp. 3, 5 (D.D.C. 1987) (assuming significant
    public interest, but nevertheless holding that classification procedures
    were properly withheld because of risk of circumvention in identifying vulnerabilities).
    But cf. Kaganove v. EPA, 856 F.2d 884, 889 (7th Cir. 1988)
    (suggesting that document might not meet Crooker test if its purpose
    were not "legitimate").

    72. Crooker, 670 F.2d at 1054.

    73. See, e.g., Judicial Watch, Inc. v. United
    States Dep't of Commerce
    , 83 F. Supp. 2d 105, 110 (D.D.C. 1999) (applying
    "high 2" based upon determination that disclosure of government credit card
    numbers "would present an opportunity for misuse and fraud"); see also
    H. Rep. No. 89-1497, at 5 (1966) (emphasizing potential damage to public
    and private interests as basis for withholding agency plans); accord
    Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA
    Post
    (posted 10/15/01) (establishing governmentwide FOIA policy).

    74. See Kaganove, 856 F.2d at 889 (finding
    that agency, like any employer, "reasonably would expect" applicant rating
    plan to be internal); NTEU v. United States Customs Serv., 802 F.2d
    525, 531 (D.C. Cir. 1986) (holding that appointment of individual members
    of lower federal bureaucracy is primarily question of internal significance
    for agencies involved); Inst. for Policy Studies, 676 F. Supp. at
    5 ("[I]t is difficult to conceive of a document that is more 'predominantly
    internal' than a guide by which agency personnel classify documents.").

    75. 601 F.2d 1, 5 (D.C. Cir. 1979) (per curiam); see
    also
    Sousa v. United States Dep't of Justice, No. 95-375, 1996
    U.S. Dist. LEXIS 18627, at *11 (D.D.C. Dec. 9, 1996) (finding that "the
    exemption only applies to information 'used for a predominantly internal
    purpose'" (quoting Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir.
    1992))).

    76. See Schwaner v. Dep't of the Air Force,
    898 F.2d 793, 796 (D.C. Cir. 1990) (acknowledging pragmatically and of necessity
    that "[j]udicial willingness to sanction a weak relation to 'rules and practices'
    may be greatest when the asserted government interest is relatively weighty");
    Wiesenfelder v. Riley, 959 F. Supp. 532, 535 (D.D.C. 1997) (pointing
    out deference properly accorded law enforcement activities); cf.
    Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331
    F.3d 918, 928-29 (D.C. Cir. 2003) (recognizing need for deference to be
    afforded government's top counterterrorism officials who can best make "predictive
    judgment of harm that will result from disclosure of information" concerning
    ongoing national security investigation into 9/11 terrorist attacks) (Exemption
    7(A)).

    77. See, e.g., PHE, Inc. v. United States
    Dep't of Justice
    , 983 F.2d 248, 251 (D.C. Cir. 1993) ("[R]elease of
    FBI guidelines as to what sources of information are available to its agents
    might encourage violators to tamper with those sources of information and
    thus inhibit investigative efforts."); Becker v. IRS, No. 91-C-1203,
    1992 WL 67849, at *6 n.1 (N.D. Ill. Mar. 27, 1992) (operational rules, guidelines,
    and procedures for law enforcement investigations and examinations protected
    as predominantly internal), motion to amend denied (N.D. Ill. Apr.
    12, 1993), aff'd in part & rev'd in part on other grounds, 34
    F.3d 398 (7th Cir. 1994); Goldsborough v. IRS, No. 81-1939, 1984
    WL 612, at *7 (D. Md. May 10, 1984) (manual with guidelines for criminal
    investigation protected as predominantly internal).

    78. See, e.g., Schiller v. NLRB, 964
    F.2d 1205, 1208 (D.C. Cir. 1992) (holding that exemption protects litigation
    strategy pertaining to Equal Access to Justice Act because disclosure would
    render information "operationally useless"); Silber v. United States
    Dep't of Justice
    , No. 91-876, transcript at 21 (D.D.C. Aug. 13, 1992)
    (bench order) (deciding that disclosure of agency's fraud litigation monograph
    would allow access to strategies and theories of government litigation and
    its efforts to enforce False Claims Act); see also Shumaker v.
    Commodity Futures Trading Comm'n
    , No. 97-7139, slip op. at 6-9 (N.D.
    Ohio May 27, 1997) (relying on Schiller to determine that agency
    settlement guidelines are similar to exempt litigation strategies and that
    disclosure would render those documents "operationally useless"). But
    see
    Dayton Newspapers, Inc. v. Dep't of the Air Force, 107 F.
    Supp. 2d 912, 920 (S.D. Ohio 1999) (rejecting agencies invocation of Exemption
    2 for individual malpractice case settlement amounts, which court treated
    as not covered by "'internal personnel rules and practices'" and, therefore,
    as "presum[ptively] . . . subject to disclosure" absent the applicability
    of any other exemption).

    79. See, e.g., Dirksen v. HHS, 803 F.2d
    1456, 1458-59 (9th Cir. 1986) (affirming nondisclosure of claims-processing
    guidelines that could be used by health care providers to avoid audits);
    Voinche, 940 F. Supp. at 328 (approving nondisclosure of manual describing
    techniques used by professional gamblers to evade prosecution); Church
    of Scientology Int'l v. IRS
    , 845 F. Supp. 714, 723 (C.D. Cal. 1993)
    (protecting "information about internal law enforcement techniques, practices,
    and procedures used by the IRS to coordinate the flow of information regarding
    Scientology"); Buffalo Evening News, Inc. v. United States Border Patrol,
    791 F. Supp. 386, 393 (W.D.N.Y. 1992) (finding methods of apprehension and
    statement of ultimate disposition of case to be internal); Williston
    Basin Interstate Pipeline Co. v. FERC
    , No. 88-592, 1989 WL 44655, at
    *2 (D.D.C. Apr. 17, 1989) (holding portions of audit report to be "functional
    equivalent" of investigative techniques manual, and thus protectible under
    Exemptions 2 and 7(E), because disclosure would reveal techniques used by
    agency personnel to ascertain whether plaintiff was in compliance with federal
    law); Windels, Marx, Davies & Ives v. Dep't of Commerce, 576
    F. Supp. 405, 412 (D.D.C. 1983) (protecting computer program under Exemptions
    2 and 7(E) because it merely instructs computer how to detect possible law
    violations, rather than modifying or regulating public behavior).

    80. See Cox v. FBI, No. 83-3552, slip
    op. at 1 (D.D.C. May 31, 1984) (holding that report concerning undercover
    agents had no effect on public and contained no "secret law"), appeal
    dismissed
    , No. 84-5364 (D.C. Cir. Feb. 28, 1985).

    81. See Miller v. Dep't of Justice,
    No. 87-533, 1989 WL 10598, at *1 (D.D.C. Jan. 31, 1989); see also
    Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 417810,
    at *19 (D.D.C. June 6, 1995) (protecting numerical symbols used for identifying
    prisoners, because disclosure could assist others in breaching prisoners'
    security); Kuffel v. United States Bureau of Prisons, 882 F. Supp.
    1116, 1123 (D.D.C. 1995) (same).

    82. See, e.g., Inst. for Policy Studies,
    676 F. Supp. at 5; see also FOIA Update, Vol. X, No. 3, at
    3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application
    of Exemption Two"); cf. Dorsett, 307 F. Supp. 2d at 36 (concluding
    that a Secret Service document used to "analyze and profile factual information
    concerning individuals" could be "used to gain insight into the methods
    and criteria . . . [that are used] to identify and investigate
    persons of interest, and could alter such individuals' behavior to avoid
    detection"); Schwarz v. United States Dep't of Treasury, 131 F. Supp.
    2d 142, 150 (D.D.C. 2000) (finding Secret Service evaluations of personal
    characteristics and threat potential of individuals "clearly exempt from
    disclosure" under both Exemptions 2 and 7(E)), summary affirmance granted,
    No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001); Voinche, 940
    F. Supp. at 328, 331 (approving nondisclosure of information relating to
    security of Supreme Court building and Supreme Court Justices on basis of
    both Exemptions 2 and 7(E)); Ctr. for Nat'l Sec. Studies v. INS,
    No. 87-2068, slip op. at 14 (D.D.C. Dec. 19, 1990) (upholding on basis of
    Exemption 7(E) agency decision to protect final contingency plan in event
    of attack on United States).

    83. Shanmugadhasan v. United States Dep't of Justice,
    No. 84-0079, slip op. at 31-34 (C.D. Cal. Feb. 18, 1986) (protecting portions
    of DEA periodical that contained drug-enforcement techniques and exchanges
    of law enforcement information); see also FOIA Post, "Critical
    Infrastructure Information Regulations Issued by DHS" (posted 2/27/04) (noting
    governmentwide applicability of safeguarding requirements for federal information
    to be established pursuant to section 893 of Homeland Security Act of 2002,
    6 U.S.C.A. § 483 (West Supp. 2004)).

    84. Don Ray Drive-A-Way Co. v. Skinner, 785
    F. Supp. 198, 200 (D.D.C. 1992). But see Wilder v. Comm'r,
    601 F. Supp. 241, 242-43 (M.D. Ala. 1984) (determining that agreement between
    state and federal agencies concerning merely when to exchange information
    relevant to potential violations of tax laws is sufficiently internal procedure
    because it does not interpret substantive law).

    85. MCI Telecomms. Corp. v. GSA, No. 89-746,
    1992 WL 71394, at *5 (D.D.C. Mar. 25, 1992).

    86. Tidewater Contractors, Inc. v. USDA, No.
    95-541, 1995 WL 604112, at *3 (D. Or. Oct. 4, 1995), appeal dismissed,
    No. 95-36238 (Mar. 14, 1996).

    87. Maricopa Audubon Soc'y v. United States Forest
    Serv.
    , 108 F.3d 1082 (9th Cir. 1997); Audubon Soc'y v. United States
    Forest Serv.
    , 104 F.3d 1201 (10th Cir. 1997).

    88. Audubon Soc'y, 104 F.3d at 1204; see
    also
    Living Rivers, Inc. v. United States Bureau of Reclamation,
    272 F. Supp. 2d 1313, 1318 (D. Utah 2003) (finding that "inundation maps,"
    e.g., for Hoover Dam, do not meet extremely narrow "high 2" test imposed
    by Tenth Circuit requiring relation to "personnel practices").

    89. But see also Pease v. United States
    Dep't of Interior
    , No. 1:99CV113, slip op. at 2, 4 (D. Vt. Sept. 17,
    1999) (finding, on basis of National Park Omnibus Management Act of 1998,
    16 U.S.C. § 5937 (2000), that agency properly withheld information pertaining
    to location of wildlife in Yellowstone National Park ecosystem).

    90. Id.; see also Thompson v. United
    States Dep't of Justice
    , No. 96-1118, slip op. at 30 (D. Kan. July 15,
    1998) (following Audubon Society to deny protection to file numbers
    found not to qualify under rigid application of "personnel practices" requirement).

    91. See Audubon Soc'y, 104 F.3d at 1204
    (citing Jordan v. United States Dep't of Justice, 591 F.2d 753, 764
    (D.C. Cir. 1978) (en banc)).

    92. See Crooker, 670 F.2d at 1075 (repudiating
    "the rationale of Jordan because it does not appear to comport with
    the full congressional intent underlying FOIA") (subsequent en banc action).

    93. Maricopa, 108 F.3d at 1086.

    94. Id. at 1087 (distinguishing Hardy,
    631 F.2d at 656-57, and Dirksen, 803 F.2d at 1458-59).

    95. See id. at 1087 (emphasizing that
    nest-site information "does not constitute 'law enforcement material'" entitled
    to protection under Exemption 2); see, e.g., Coastal Delivery
    Corp. v. United States Customs Serv.
    , 272 F. Supp. 2d 958, 965 (C.D.
    Cal. 2003) (recognizing both protective room left by Ninth Circuit -- in
    that its Hardy rule remains "still in force today" -- and agency's
    consequently qualifying law enforcement purpose for container-inspection
    data at Los Angeles/Long Beach seaport), reconsideration denied,
    No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed
    voluntarily
    , No. 03-55833 (9th Cir. Aug. 26, 2003).

    96. Cf. Maricopa, 108 F.3d at 1086-87
    (Ninth Circuit decision following counterpart Tenth Circuit decision on
    virtually identical facts, but only in that those facts did not involve
    anything that could be deemed "law enforcement material").

    97. See Schwaner v. Dep't of the Air Force,
    898 F.2d 793, 796 (D.C. Cir. 1990) (acknowledging that "[j]udicial willingness
    to sanction a weak relation to 'rules and practices' may be greatest when
    the asserted government interest is relatively weighty"); see also
    Lesar, 636 F.2d at 486 (upholding Exemption 2 protection for FBI
    symbol numbers that are used to identify confidential informants, without
    any evident regard for any relation to internal personnel rules or practices);
    cf. Maricopa v. United States Forest Serv., 108 F.3d at 1086-87
    (distinguishing goshawk nesting site information, found to be unprotected
    by Exemption 2, from law enforcement material such as claims-processing
    guidelines and training manuals, the disclosure of which was found to risk
    circumvention of law (citing Dirksen, 803 F.2d at 1458, and Hardy,
    631 F.2d at 656)). See generally FOIA Post, "New Attorney
    General FOIA Memorandum Issued" (posted 10/15/01) (advising of "high 2"
    protection that is available for highly sensitive "critical infrastructure
    information" generated by federal agencies).

    98. 670 F.2d 1051 (D.C. Cir. 1981).

    99. Id. at 1074.

    100. See Lesar, 636 F.2d at 485-86
    n.78.

    101. Crooker, 670 F.2d at 1069.

    102. See Shanmugadhasan, No. 84-0079,
    slip op. at 31-34 (C.D. Cal. Feb. 18, 1986) (holding DEA periodical that
    was widely distributed to state and foreign law enforcement personnel deserving
    of Exemption 2 protection as "internal," in order to preserve DEA's law
    enforcement effectiveness).

    103. See, e.g., Rosenberg v. Freeh,
    No. 97-0476, slip op. at 4-6 (D.D.C. May 12, 1998) (disclosure of FBI source
    numbers, banking codes, and code name, would risk circumvention of the law);
    Wagner v. DEA, No. 93-2093, 1995 WL 350794, at *1 (D.D.C. May 26,
    1995) (release of internal codes could "thwart DEA's investigative and enforcement
    efforts"); Augarten v. DEA, No. 93-2192, 1995 WL 350797, at *1 (D.D.C.
    May 22, 1995) (release of "drug codes, information identification codes,
    and violator identification codes" would reveal nature and extent of specific
    investigations); Manna v. United States Dep't of Justice, 832 F.
    Supp. 866, 872, 880 (D.N.J. 1993) (release of G-DEP and NADDIS numbers "would
    impede" investigative and enforcement efforts); Watson v. United States
    Dep't of Justice
    , 799 F. Supp. 193, 195 (D.D.C. 1992) (subjects could
    decode G-DEP and NADDIS numbers and change their activities "so as to evade
    detection"); Albuquerque Publ'g Co. v. United States Dep't of Justice,
    726 F. Supp. 851, 854 (D.D.C. 1989) ("The public has no legitimate interest
    in gaining information [pertaining to violator and informant codes] that
    could lead to the impairment of DEA investigations."); cf. KTVK-TV
    v. DEA
    , No. 89-379, 1989 U.S. Dist. LEXIS 10348, at *3 (D. Ariz. Aug.
    29, 1989) (finding that disclosure of tape of speech by local police chief,
    given at seminar sponsored by DEA, which contained remarks on police department
    programs used or contemplated to discourage illegal drug use would tend
    to discourage illegal use of drugs" rather than "enable drug users to avoid
    detection").

    104. See, e.g., Dirksen, 803 F.2d at
    1459 (protecting instructions for computer coding); Prows v. United States
    Dep't of Justice
    , No. 90-2561, 1996 WL 228463, at *2 (D.D.C. Apr. 25,
    1996) (protecting internal DEA markings and phrases that could, if released,
    facilitate improper access to sensitive information); Kuffel, 882
    F. Supp. at 1123 (protecting computer and teletype routing symbols, access
    codes, and computer option commands); Beckette v. United States Postal
    Serv.
    , No. 90-1246-N, 1993 WL 730711, at *4 (E.D. Va. Mar. 11, 1993)
    (protecting control file, which "is a set of instructions that controls
    the means by which data is entered and stored in the computer"), aff'd,
    25 F.3d 1038 (4th Cir. 1994) (unpublished table decision); see also
    Windels, 576 F. Supp. at 412 (protecting computer program under Exemptions
    2 and 7(E)); Kiraly v. FBI, 3 Gov't Disclosure Serv. (P-H) ¶ 82,465,
    at 83,135 (N.D. Ohio Feb. 17, 1982) (protecting computer codes under Exemptions
    2 and 7(E)), aff'd, 728 F.2d 273 (6th Cir. 1984).

    105. See, e.g., Robert v. United States
    Dep't of Justice
    , No. 99-3649, 2001 WL 34077473, at *5 (E.D.N.Y. Mar.
    22, 2001) (recognizing necessity of redacting FBI file numbers to "protect
    against unauthorized access to . . . computer system"), aff'd,
    26 Fed. Appx. 87 (2d Cir. 2002); Jefferson v. United States Dep't of
    Justice
    , No. 00-1489, slip op. at 3 (D.D.C. Nov. 30, 2000) (ruling that
    disclosure of case file numbers and computer pathnames "might be used to
    compromise the security" of agency's electronic databases and computer systems),
    aff'd in part & remanded in part on other grounds, 284 F.3d 172
    (D.C. Cir. 2002); Bartolotta v. FBI, No. 99-1145, slip op. at 7 (D.D.C.
    July 13, 2000) (finding teletype access codes to be properly withheld because
    release "would enable individuals to interfere with [agency's] communications
    with other law enforcement agencies"); Hall v. United States Dep't of
    Justice
    , No. 87-474, 1989 WL 24542, at *2 (D.D.C. Mar. 8, 1989) (protecting
    various items that "could facilitate unauthorized access to [agency] communications
    systems"); Inst. for Policy Studies, 676 F. Supp. at 5 (according
    Exemption 2 protection to record revealing most sensitive portions of agency
    system which "could be used to seek out the [system's] vulnerabilities");
    see also FOIA Update, Vol. X, No. 3, at 3-4. But see
    Linn, 1995 WL 417810, at **19, 21-22, 24-25 (refusing to protect
    agencies' access codes and routing symbols because risk of compromising
    integrity of agencies' recordkeeping system was found by the court to be
    "insufficient").

    106. See Massachusetts v. HHS, 727
    F. Supp. 35, 42 (D. Mass. 1989) ("The Act simply cannot be interpreted in
    such a way as to presumptively brand a sovereign state as likely to circumvent
    federal law. The second prong of Exemption 2 does not apply when it is [the
    state] itself that seeks the information.").

    107. See FOIA Update, Vol. X, No. 3,
    at 3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application
    of Exemption Two"); see also FOIA Post, "New Attorney General
    FOIA Memorandum Issued" (posted 10/15/01) (urging necessary protection of
    information regarding "critical systems, facilities, stockpiles, and other
    assets [which themselves hold potential for] use as weapons of mass destruction").

    108. See FOIA Update, Vol. X, No. 3,
    at 4 (citing Computer Security Act of 1987, Pub. L. No. 100-235, 101 Stat.
    1724 (1988)).

    109. 785 F. Supp. 164 (D.D.C. 1991).

    110. Id. at 166.

    111. See id.; see also, e.g.,
    PHE, 983 F.2d at 252 (remanding for "high 2" segregation; "district
    court clearly errs when it approves the government's withholding of information
    under the FOIA without making an express finding on segregability" (citing
    Schiller, 964 F.2d at 1210)); Wightman v. ATF, 755 F.2d 979,
    982-83 (1st Cir. 1985) (remanding for determination on segregability); FOIA
    Update
    , Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation'
    Obligation"); Schrecker v. United States Dep't of Justice, 74 F.
    Supp. 2d 26, 32 (D.D.C. 1999) (finding that FBI properly "shield[ed] from
    disclosure [confidential informant] source codes [and] identifying data
    . . . no portion of [which] is reasonably segregable"), aff'd
    in part, rev'd & remanded in part, all on other grounds
    , 254 F.3d
    162 (D.C. Cir. 2001); Archer v. HHS, 710 F. Supp. 909, 911 (S.D.N.Y.
    1989) (upon in camera review, ordering disclosure of Medicare reimbursement-review
    criteria, but with specific audit trigger number segregated for protection).

    112. See FOIA Post, "New Attorney
    General FOIA Memorandum Issued" (posted 10/15/01) (emphasizing Exemption
    2's applicability to "[a]ny agency assessment of, or statement regarding,
    the vulnerability of" critical infrastructure).

    113. See id.

    114. White House Homeland Security Memorandum, reprinted
    in
    FOIA Post (posted 3/21/02) (directing agencies to give "full
    and careful consideration to all applicable FOIA exemptions," through an
    attached memorandum from the Information and Security Oversight Office and
    the Department of Justice's Office of Information and Privacy that specifies
    Exemption 2 as a basis for protection of sensitive critical infrastructure
    information); see also Attorney General Ashcroft's FOIA Memorandum,
    reprinted in FOIA Post (posted 10/15/02) (emphasizing the
    importance of "safeguarding our national security [and] enhancing the effectiveness
    of our law enforcement agencies"); cf. FOIA Post, "Critical
    Infrastructure Information Regulations Issued by DHS" (posted 2/27/04) (highlighting
    growing importance of safeguarding "sensitive homeland security information"
    (SHSI)).

    115. See, e.g., Davin v. United States
    Dep't of Justice
    , 60 F.3d 1043, 1065 (3d Cir. 1995) (upholding protection
    for informant codes); Jones v. FBI, 41 F.3d 238, 244 (6th Cir. 1994)
    (same); Massey v. FBI, 3 F.3d 620, 622 (2d Cir. 1993) (finding that
    disclosure of informant symbol numbers and source-identifying information
    "could do substantial damage to the FBI's law enforcement activities");
    Lesar, 636 F.2d at 485 (finding that "informant codes plainly fall
    within the ambit of Exemption 2"); Summers v. United States Dep't of
    Justice
    , No. 98-1837, slip op. at 13 (D.D.C. Mar. 10, 2003) (determining
    that informant designations and file numbers are properly covered by Exemption
    2); Mack v. Dep't of the Navy, 259 F. Supp. 2d 99, 107 (D.D.C. 2003)
    (finding cooperating witness identification numbers to be "strictly internal
    and . . . sensitive because they conceal the identity of informants
    who were promised confidentiality in exchange for their cooperation"); Raulerson
    v. Ashcroft
    , 271 F. Supp. 2d 17, 24 (D.D.C. 2002) (finding FBI source
    symbol numbers to be properly withheld as category of information that is
    "amenable to non-specific explanation"); Shores v. FBI, 185 F. Supp.
    2d 77, 83 (D.D.C. 2002) (recognizing that disclosing "informant symbol and
    file numbers," and thereby "compromising the identities of government informants,"
    readily "could deter individuals from cooperating with the government");
    Sinito, No. 87-0814, slip op. at 12 (D.D.C. July 12, 2000) (concluding
    that protection of source numbers continues even after death of informants);
    cf. Globe Newspaper Co. v. FBI, No. 91-13257, 1992 WL 396327,
    at *3 (D. Mass. Dec. 29, 1992) (ordering release of amount paid to FBI informant
    personally involved in continuing criminal activity).

    116. See Cox v. FBI, No. 83-3552, slip
    op. at 2 (D.D.C. May 31, 1984) (protecting report concerning FBI's undercover
    agent program because of potential for discovering identities of agents).

    117. See, e.g., Founding Church of Scientology
    v. Smith
    , 721 F.2d 828, 831 (D.C. Cir. 1983) (protecting sensitive instructions
    regarding administrative handling of document); Cappabianca v. Comm'r,
    United States Customs Serv.
    , 847 F. Supp. 1558, 1563 (M.D. Fla. 1994)
    (protecting Customs Service file numbers "containing information such as
    the type and location of the case" because "if the code were cracked, [it]
    could reasonably lead to circumvention of the law"); Curcio v. FBI,
    No. 89-941, slip op. at 5 (D.D.C. Nov. 2, 1990) (protecting expense accounting
    in FBI criminal investigation). But see Wilkinson, 633 F.
    Supp. at 342 & n.13 (holding codes that identify law enforcement techniques
    not readily protectible under Exemption 2).

    118. See, e.g., Cox v. United States Dep't
    of Justice
    , 601 F.2d at 4-5 (upholding nondisclosure of weapon, handcuff,
    and transportation security procedures); Jimenez v. FBI, 938 F. Supp.
    21, 24 (D.D.C. 1996) (approving nondisclosure of criteria for classification
    of prison gang member); Hall, 1989 WL 24542, at *2 (reasoning that
    disclosure of teletype routing symbols, access codes, and data entry codes
    maintained by United States Marshals Service "could facilitate unauthorized
    access to information in law enforcement communications systems, and [thereby]
    jeopardize [prisoners' security]"); Miller, 1989 WL 10598, at *1
    (disclosure of sections of Bureau of Prisons (BOP) Custodial Manual that
    describe procedures for security of prison control centers would "necessarily
    facilitate efforts by inmates to frustrate [BOP's] security precautions");
    cf. Thornburgh v. Abbott, 490 U.S. 401, 417 (1989) (rejecting
    requester's constitutional challenge to BOP regulation excluding publications
    that, although not necessarily likely to lead to violence, are determined
    by warden "to create an intolerable risk of disorder . . .
    at a particular prison at a particular time") (non-FOIA case). But see
    Linn, 1995 WL 631847, at **4-5 (rejecting as "conclusory" BOP's argument
    that release of case summary and internal memoranda would cause harm to
    safety of prisoners).

    119. See, e.g., Dirksen, 803 F.2d at
    1458-59 (upholding protection of internal audit guidelines in order to prevent
    risk of circumvention of agency Medicare reimbursement regulations); Wiesenfelder,
    959 F. Supp. at 535 (protecting benchmarks signifying when enforcement action
    taken, errors identifying agency's tolerance for mistakes, and dollar amounts
    of potential fines); Archer, 710 F. Supp. at 911 (ordering Medicare
    reimbursement-review criteria disclosed, but protecting specific number
    that triggers audit); Windels, 576 F. Supp. at 412-13 (withholding
    computer program containing anti-dumping detection criteria). But see
    Don Ray Drive-A-Way, 785 F. Supp. at 200 (ordering disclosure based
    upon finding that knowledge of agency's regulatory priorities would allow
    regulated carriers to concentrate efforts on correcting most serious safety
    breaches).

    120. See, e.g., Patton v. FBI, 626
    F. Supp. 445, 447 (M.D. Pa. 1985) (testing materials withheld because release
    would impair effectiveness of system and give future applicants unfair advantage),
    aff'd, 782 F.2d 1030 (3d Cir. 1986) (unpublished table decision);
    Oatley v. United States, 3 Gov't Disclosure Serv. (P-H) ¶ 83,274,
    at 84,065 (D.D.C. Aug. 16, 1983) (civil service testing materials satisfy
    two-part Crooker test); see also Kaganove, 856 F.2d
    at 890 (disclosure of applicant rating plan would render it ineffectual
    and allow future applicants to "embellish" job qualifications); NTEU,
    802 F.2d at 528-29 (disclosure of hiring plan would give unfair advantage
    to some future applicants); Samble v. United States Dep't of Commerce,
    No. 192-225, slip op. at 11 (S.D. Ga. Sept. 22, 1994) (release of evaluative
    criteria would compromise validity of rating process). But see Commodity
    News Serv. v. Farm Credit Admin.
    , No. 88-3146, 1989 U.S. Dist. LEXIS
    8848, at **12-15 (D.D.C. July 31, 1989) (holding the steps to be taken in
    selecting a receiver for liquidation of a failed federal land bank, including
    the sources an agency might contact when investigating candidates, to be
    not protectible under "high 2" because the agency did not demonstrate how
    the disclosure would allow any applicant to "gain an unfair advantage in
    the . . . process").

    121. See Tawalbeh v. United States Dep't
    of the Air Force
    , No. 96-6241, slip op. at 13 (C.D. Cal. Aug. 8, 1997)
    (finding that disclosure of Air Force internal intelligence collection codes
    "would allow unauthorized persons to decode classified . . . messages");
    cf. Schrecker, 74 F. Supp. 2d at 32 (finding that the disclosure
    of identity of "governmental unit that transmitted a particular document"
    could "risk circumvention of the ability of the [Defense Intelligence Agency]
    to collect or relay intelligence information").

    122. See Judicial Watch, Inc. v. United
    States Dep't of Commerce
    , 83 F. Supp. 2d at 110 (upholding protection
    of government credit card numbers based upon "realistic possibility of .
    . .
    misuse and fraud").

    123. See Inst. for Policy Studies,
    676 F. Supp. at 5 (upholding application of Exemption 2 to protect an Air
    Force security classification guide from which "a reader can gauge which
    components . . . are the most sensitive and consequently the
    most important").

    124. See Coastal Delivery Corp., 272
    F. Supp. 2d at 964 (recognizing Exemption 2 protection for rate of examination
    of shipping containers by Customs Service, based on law enforcement purpose).

    125. Thompson, No. 96-1118, slip op. at 29-30
    (D. Kan. July 15, 1998) (requiring release of Office of Professional Responsibility
    file numbers, even though recognizing their "sensitive and confidential"
    nature).

    126. Coleman v. FBI, 13 F. Supp. 2d 75, 79
    (D.D.C. 1998) (finding that the disclosure of file numbers "could potentially
    reveal a sequence of information, including dates, times, and identities
    of . . . informant transactions thereby exposing the depth
    of FBI's informant coverage"); see also Pons v. United States
    Customs Serv.
    , No. 93-2094, 1998 U.S. Dist. LEXIS 6084, at *11 (D.D.C.
    Apr. 23, 1998) (finding case numbers and filing codes to be predominantly
    internal and properly withheld); Davin v. United States Dep't of Justice,
    No. 92-1122, slip op. at 6 (W.D. Pa. Apr. 9, 1998) (concluding "that the
    government is entitled to withhold . . . file numbers"), aff'd, 176
    F.3d 471 (3d Cir. 1999) (unpublished table decision).

    127. See, e.g., Dorsett, 307 F. Supp.
    2d at 36 (concluding that certain Secret Service information, the disclosure
    of which in isolation would be "relatively harmless," could "in the aggregate"
    benefit those attempting to violate the law); Coastal Delivery Corp.,
    272 F. Supp. 2d at 964-65 (concluding that the Customs Service had established
    that the release of seaport cargo-inspection data, combined with other known
    data, could -- in a mosaic analysis -- lead to the identification of highly
    sensitive security information and "risk circumvention of agency regulations
    as well as the law"); Accuracy in Media, No. 97-2107, slip op. at
    5 (D.D.C. Mar. 31, 1999) (finding persuasive the FBI argument that, with
    release of informant symbol numbers, "over time an informant may be identified
    by revealing . . . connections with dates, times, places,
    events"); Jan-Xin Zang v. FBI, 756 F. Supp. 705, 712 (W.D.N.Y. 1991)
    (ruling that source symbol and administrative identifiers were properly
    withheld on basis that "accumulation of information" known to be from same
    source could lead to detection); cf. Ctr. for Nat'l Sec. Studies
    v. United States Dep't of Justice
    , 331 F.3d 918, 928-29 (D.C. Cir. 2003)
    (finding danger, in context of national security, based partly on "mosaic"
    concept), cert. denied, 124 S. Ct. 1041 (2004); Davin, 60
    F.3d at 1065 (remanding for agency to specify content of documents for which
    it raises "mosaic" argument).

    128. Ray v. United States Customs Serv., No.
    83-1476, 1985 U.S. Dist. LEXIS 23091, at **9-10 (D.D.C. Jan. 28, 1985).

    129. Id.; see also Novotny v. IRS,
    No. 94-F-549, 1994 WL 722686, at *3 (D. Colo. Sept. 8, 1994); Wilder,
    607 F. Supp. at 1015; accord Inst. for Policy Studies, 676
    F. Supp. at 5 (classification guidelines could reveal which parts of sensitive
    communications system are most sensitive and enable foreign intelligence
    services to gather related unclassified records and seek out system's vulnerabilities);
    cf. Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980) (utilizing
    "mosaic" analysis in Exemptions 1 and 3 context).

    130. O'Connor v. IRS, 698 F. Supp. 204, 206-07
    (D. Nev. 1988). But cf. Archer, 710 F. Supp. at 911 (requiring
    careful segregation so that only truly sensitive portion of audit criteria
    is withheld).

    131. See, e.g., Dirksen, 803 F.2d at
    1458-59 (finding guidelines for processing Medicare claims properly withheld
    when disclosure could allow applicants to alter claims to fit them into
    certain categories and guidelines would thus "lose the utility they were
    intended to provide"); Wiesenfelder, 959 F. Supp. at 537-38 (finding
    trigger figures, error rate tolerances, and amounts of potential fines properly
    withheld because release would "substantially undermine" agency's regulatory
    efforts); Archer, 710 F. Supp. at 911 (protecting number of particular
    health procedures performed, which HHS contractor used to determine whether
    healthcare providers' claims for reimbursement under Medicare should be
    subjected to greater scrutiny; disclosure would allow providers "to avoid
    review and ensure automatic payment by submitting claims below the number
    . . . scrutinized").

    132. NTEU, 802 F.2d at 528-29.

    133. Id. at 529-31.

    134. Id. at 530-31; cf. United States
    Dep't of Justice v. FLRA
    , 988 F.2d 1267, 1269 (D.C. Cir. 1993) (holding
    "crediting plans" to be also not subject to disclosure under Federal Service
    Labor-Management Relations Act, 5 U.S.C. § 7114(b)(4)(B) (2000)).

    135. Kaganove, 856 F.2d at 889; see also
    Samble, No. CV192-225, slip op. at 12 (S.D. Ga. Sept. 22, 1994) (citing
    Kaganove, 856 F.2d at 889, to protect criteria used to evaluate job
    applicants).

    136. Wiesenfelder, 959 F. Supp. at 537.

    137. Id. at 537-38.

    138. 856 F.2d at 889.

    139. 803 F.2d at 1458-59.

    140. 802 F.2d at 529-31.

    141. See FOIA Update, Vol. X, No. 3,
    at 4 (advising that "the D.C. Circuit has expressly declined to impose any
    requirement that a particular statute or regulation be involved" (citing
    NTEU, 802 F.2d at 530-31)).

    142. See NTEU, 802 F.2d at 530-31 ("Where
    disclosure of a particular [record] would render [it] operationally useless,
    the Crooker analysis is satisfied whether or not the agency identifies
    a specific statute or regulation threatened by disclosure."); Edmonds
    v. FBI
    , 272 F. Supp. 2d 35, 51 (D.D.C. 2003) (secure facsimile numbers
    found to be properly withheld because "this equipment would be worthless
    to the FBI in supporting its investigations" if the fax numbers were to
    be released); Knight v. DOD, No. 87-480, slip op. at 4 (D.D.C. Feb.
    11, 1988) (memorandum detailing specific inventory audit guidelines held
    protectible because disclosure "would reveal Department of Defense rationale
    and strategy" for audit and would "create a significant risk that this information
    would be used by interested parties to frustrate ongoing or future audits");
    Boyce v. Dep't of the Navy, No. 86-2211, slip op. at 2 (C.D. Cal.
    Feb. 17, 1987) (routine hearing transcript properly withheld under Exemption
    2 where disclosure would circumvent terms of contractual agreement entered
    into under labor-relations statutory scheme).

    143. Willis, No. 96-1455, slip op. at 7 (D.D.C.
    Aug. 6, 1997) (magistrate's recommendation), adopted (D.D.C. Feb.
    14, 1998) (finding that DEA numbers -- G-DEP, NADDIS, and informant identifier
    codes -- are protectible even after case is long closed), remanded on
    other grounds
    , 194 F.3d 175 (D.C. Cir. 1999) (unpublished table decision);
    see also Buckner v. IRS, 25 F. Supp. 2d 893, 899 (N.D. Ind.
    1998) ("Because DIF scores are investigative techniques . . .
    still used by the IRS in evaluating tax returns . . . the age of the scores
    is of no consequence" in determining their releasability.) (Exemption 7(E)).

    144. Pub. L. No. 99-570, § 1802, 100 Stat. 3207,
    3207-48, 3207-49 (codified as amended at 5 U.S.C. § 552(b)(2) (2000)).

    145. See, e.g., Kaganove, 856 F.2d
    at 888-89 (recognizing the congruence between the protection of information
    under Exemptions 2 and 7(E) based on the "risk of circumvention of the law");
    Coastal Delivery Corp., 272 F. Supp. 2d at 965 (observing that the
    same reasons apply under both Exemptions 2 and 7(E) to protect from disclosure
    "information that has a law enforcement purpose . . . [where
    disclosure] would risk circumvention of agency regulations as well as the
    law"); Peralta v. United States Attorney's Office, 69 F. Supp. 2d
    21, 32 (D.D.C. 1999) (protecting radio channels used by FBI during physical
    surveillance, under both Exemptions 2 and 7(E)); see also Attorney
    General's Memorandum on the 1986 Amendments to the Freedom of Information
    Act
    16-17 & n.32 (Dec. 1987) (noting that amendment of Exemption
    7(E) in 1986 in some respects widened protections then available under Exemption
    2); cf. NARA v. Favish, 124 S. Ct. 1570, 1579 (2004) (evincing
    Supreme Court's reliance on "Attorney General's consistent interpretation
    of" FOIA in successive such Attorney General memoranda).

    146. See, e.g., PHE, 983 F.2d at 251
    (upholding FBI judgment, relying on both Exemptions 2 and 7(E), that release
    of "who would be interviewed, what could be asked, and what records or other
    documents would be reviewed" in FBI investigatory guidelines would risk
    circumvention of law); Schwarz v. United States Dep't of Treasury,
    131 F. Supp. 2d at 150 (finding Secret Service code names and White House
    gate numbers "clearly exempt from disclosure" under both Exemptions 2 and
    7(E)); Voinche, 940 F. Supp. at 328, 331 (approving nondisclosure
    of information relating to security of Supreme Court building and Justices
    on basis of both Exemptions 2 and 7(E)).

    147. Cf. FOIA Post, "Executive Order
    on National Security Classification Amended" (posted 4/11/03) (noting coverage
    of "information that 'reveal[s] current vulnerabilities of systems, installations,
    infrastructures, or projects relating to national security,' in new section
    3.3(b)(8)" of Executive Order 12,958, as amended).

    148. See FOIA Post, "New Attorney
    General FOIA Memorandum Issued" (posted 10/15/01) (placing primary emphasis
    on availability of protection for homeland security-related information
    under Exemption 2); see also FOIA Post, "FOIA Officers Conference
    Held on Homeland Security" (posted 7/3/03) (analyzing homeland security-related
    cases).

    149. See FOIA Update, Vol. X, No. 3,
    at 3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application
    of Exemption Two"); see also, e.g., Inst. for Policy Studies v.
    Dep't of the Air Force,
    676 F. Supp. 3, 5 (D.D.C. 1987) (upholding "use
    of Exemption 2 to withhold internal agency information on grounds of national
    security"); cf. Dorsett v. United States Dep't of the Treasury,
    307 F. Supp. 2d 28, 36 (D.D.C. 2004) (D.D.C. Mar. 10, 2004) (concluding
    that a Secret Service document used to "analyze and profile factual information
    concerning individuals" could be "used to gain insight into the methods
    and criteria . . . [used] to identify and investigate persons
    of interest, and could alter such individuals' behavior to avoid detection");
    Voinche v. FBI, 940 F. Supp. 323, 329-31 (D.D.C. 1996) (approving
    nondisclosure of information relating to security of Supreme Court building
    and Supreme Court Justices on basis of both Exemptions 2 and 7(E)); Ctr.
    for Nat'l Sec. Studies v. INS
    , No. 87-2068, slip op. at 14 (D.D.C. Dec.
    19, 1990) (approving an agency decision based on Exemption 7(E) to protect
    certain planning information developed for use in the event of an attack
    on the United States, because its "release . . . could assist
    terrorists in 'planning their attacks and escapes' and imperil the safety
    of Customs officers").

    150. See December 17, 2003, Homeland Security
    Presidential Directive
    (HSPD-7) 39 Weekly Comp. Pres. Doc. 1816 (Dec.
    22, 2003) (defining "critical infrastructure" and "key resources," and also
    directing all Federal departments and agencies to "appropriately protect
    information . . . that would facilitate terrorist targeting
    of . . . [those] resources") (available at www.gpoaccess.gov/wcomp/v39no51.html);
    cf. FOIA Post, "Critical Infrastructure Information Regulations
    Issued by DHS" (posted 2/27/04) (detailing protection for certain information
    submitted by private-sector and other nonfederal entities, in contrast to
    information internal to federal government).

    151. Coastal Delivery Corp. v. United States Customs
    Serv.
    , 272 F. Supp. 2d 958, 964-65 (C.D. Cal. 2003) (quoting Crooker
    v. ATF
    , 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc), as having "acknowledged
    the rule in the Ninth Circuit -- still in force today -- 'that law enforcement
    materials, disclosure of which may risk circumvention of agency regulation,
    are exempt from disclosure'"), reconsideration denied, No. 02-3838,
    2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily,
    No. 03-55833 (9th Cir. Aug. 26, 2003).

    152. Living Rivers, Inc. v. United States Bureau
    of Reclamation
    , 272 F. Supp. 2d 1313, 1318 (D. Utah 2003) (relying on
    agency security officer's assessments of risk to find maps of potential
    flood damage to be protected by Exemption 7(F), because disclosure could
    reasonably be expected to endanger life or physical safety of many individuals).

    153. See Ctr. for Nat'l Sec. Studies v.
    United States Dep't of Justice
    , 133 F.3d 918, 927-28 (D.C. Cir. 2003)
    (counseling "deference in national security matters," and finding law enforcement
    purpose established where agency demonstrated both "rational nexus" between
    agency investigation and its law enforcement duties as well as connection
    between person or incident and possible security risk or law violation),
    cert. denied, 124 S. Ct. 1041 (2004).

    154. December 17, 2003, Homeland Security Presidential
    Directive
    (HSPD-7), 39 Weekly Comp. Pres. Doc. 1816 (Dec. 22, 2003).

    155. See Attorney General's Memorandum for
    Heads of All Federal Departments and Agencies Regarding the Freedom of Information
    Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum],
    reprinted in FOIA Post (posted 10/15/01) (encouraging agencies
    to carefully consider protecting sensitive information when making disclosure
    determinations).

    156. See FOIA Post, "FOIA Officers
    Conference Held on Homeland Security" (posted 7/3/03) (drawing attention
    to "the protection of homeland security-related information [as] a subject
    of growing importance within all levels of government").

    157. See, e.g., Homeland Security Act of 2002,
    6 U.S.C.A. § 482 (West Supp. 2004) (directing implementation of procedures
    for safeguarding sensitive homeland security information to facilitate its
    sharing with appropriate state and local personnel); see also FOIA
    Post
    , "Critical Infrastructure Information Regulations Issued by DHS"
    (posted 2/27/04) (emphasizing critical distinction between "protecting"
    and "safeguarding" information, and describing Department of Homeland Security
    report to Congress (dated February 20, 2004) as addressing development of
    policy and procedures for handling "sensitive homeland security information").

    158. See Attorney General Ashcroft's FOIA
    Memorandum (Oct. 12, 2001), reprinted in FOIA Post (posted
    10/15/01) (urging all federal agencies to "consult with the Department of
    Justice's Office of Information and Privacy when significant issues arise");
    see also White House Memorandum for Heads of Executive Departments
    and Agencies Concerning Safeguarding Information (Mar. 2002), reprinted
    in
    FOIA Post (posted 3/21/02) (calling upon agencies to identify
    and then safeguard "information that could be misused to harm the security
    of our nation and the safety of our people").

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