Perhaps more than with any other FOIA exemption, there has been a great deal of controversy
and confusion surrounding Exemption 2 and its protection of "matters that are
As regards the protection of law enforcement records under Exemption 2, the D.C. Circuit's en banc decision more than two years ago in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981), made it clear at least within that critical judicial circuit that Exemption 2 can apply to any law enforcement record (such as training manuals) for which the standards of "predominant internality" and "significant risk of circumvention of law" can be met. As yet, it remains to be seen exactly how the Crooker standards will be applied, as well as the extent to which they will be adopted at all by other circuit courts previously reluctant to permit any law enforcement protection under Exemption 2. See the 1983 Freedom of Information Case List ("Short Guide to the Freedom of Information Act") at 205-08. See also, e.g., Windels, Marx, Davies & Ives v. Department of Commerce, 576 F. Supp. 405, 411-13 (D.D.C. 1983).
At present, the most interesting aspect of Exemption 2 is its unique application to far more
mundane, yet pervasive, administrative records. In its decision eight years ago in Department of
the Air Force v. Rose, 425 U.S. 352 (1976), 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
Until quite recently, though, there existed a great deal of uncertainty as to the types of administrative records that could be considered for such unique protection under Exemption 2. This was primarily due to a 1980 D.C. Circuit ruling that Congress intended such Exemption 2 protection for agency personnel records only, not for "trivial matters unrelated to personnel." Allen v. CIA, 636 F.2d 1287, 1290 n.21 (D.C. Cir. 1980) (emphasis in original). In reaching such a narrow view of Exemption 2, the D.C. Circuit in Allen relied upon its en banc decision in Jordan v. United States Department of Justice, 591 F.2d 753, 764 (D.C. Cir. 1978), which involved Exemption 2's law enforcement aspect, and it chose to perceive no conflict with its decision in Lesar v. United States Department of Justice, 636 F.2d 472, 485 (D.C. Cir. 1980).
One year after Allen, the full D.C. Circuit in Crooker revisited the issue involved in Jordan and adopted a distinctly broader view of Exemption 2, at least as regards its law enforcement aspect. Yet even after the D.C. Circuit's broad en banc decision in Crooker in 1981, it still remained unclear whether the Allen/Jordan holdings on the "burden" aspect of Exemption 2 still limited the extent of its possible application to personnel records only. This uncertainty over the prevailing D.C. Circuit case law on this aspect of Exemption 2 greatly inhibited its possible application during recent years.
In November 1983, however, the D.C. Circuit finally confronted this issue in Founding Church of Scientology v. Smith, 721 F.2d 828 (D.C. Cir. 1983), and squarely resolved it in the Government's favor. In Founding Church, the Justice Department pointedly admitted that it had withheld routine administrative notations "indistinguishable from the filing and routing instructions that were held unprotected under FOIA Exemption 2 in Allen," but it urged that Allen be abandoned in light of its discerned conflict with Crooker and Lesar. 721 F.2d at 829. Recognizing this conflict, and concluding that Crooker "repudiated the narrow construction of [E]xemption 2 that [had been] adopted in Jordan," the Court of Appeals in Founding Church did exactly what was urged, expressly holding that Allen "no longer represents the law of this circuit." Id. at 830.
Consequently, agencies are now free to consider withholding a wide range of administrative information under Exemption 2 -- regardless of whether it is personnel-related or not -- based upon the unique rationale that the very process of releasing such data would be an unwarranted administrative burden. This aspect of Exemption 2 has in the past been held properly applied to such trivial administrative data as file numbers, routing stamps and other similar administrative markings on requested records. See, e.g., Scherer v. Kelley, 584 F.2d 170, 175-76 (7th Cir. 1978), cert. denied, 440 U.S. 964 (1979); Nix v. United States, 572 F.2d 998, 1005 (4th Cir. 1978); Maroscia v. Levi, 569 F.2d 1000, 1001-02 (7th Cir. 1977).
Most significantly, it has also been held to justify the withholding of more extensive and substantive portions of administrative records, even entire documents. See, e.g., Ferri v. United States Department of Justice, 573 F. Supp. 852, 862 (W.D. Pa. 1983) (Exemption 2 held to protect two entire documents dealing with an internal administrative matter); Associated Press v. Department of Justice, Civil No. 82-803, slip op. at 44 (D.N.J. Dec. 6, 1982) (entire "closing form" found properly withheld); National Treasury Employees Union v. United States Department of the Treasury, 487 F. Supp. 1321, 1324 (D.D.C. 1980) (internal discussions of collective bargaining matters properly withheld). Given the nondisclosure rationale of avoiding the administrative burdens involved in the processing of such records, agencies should now pay particular attention to any potential Exemption 2 withholdings of this latter variety.
Finally, agencies need to be especially mindful of the fact that this special Exemption 2
protection is simply not available for any information in which there is "a genuine and significant
public interest." Department of the Air Force v. Rose, supra, 425 U.S. at 369. A useful
illustration of how this "public interest" delineation is drawn can be found in FBI Agents
Association v. FBI, 3 GDS
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