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FOIA Update: FOIA Counselor: The "High" and "Low" of Exemption Two

FOIA Update
Vol. I, No. 4

FOIA Counselor

The "High" and "Low" of Exemption Two

Agencies and courts have often been uncertain whether Exemption Two of the Freedom of Information Act, which protects internal agency records of a trivial housekeeping nature, also protects internal agency manuals which are essential to instruct agency auditors, inspectors, and investigators. The U.S. Supreme Court upheld the "low-2" protection in Department of Air Force v. Rose, 425 U.S. 352 (1976), and reasoned that for minor matters in internal agency management there is no substantial public interest in disclosure. On the other hand, the "high-2" theory to protect sensitive internal agency instructions to law enforcement personnel has not been argued before the Supreme Court, and the Courts of Appeals and District Courts have given mixed guidance.

The government has generally prevailed in its arguments on the need to protect sensitive agency instructions. Its success is mainly due to its ability to convince judges that release of the records would disclose confidential investigatory techniques thereby making it easier for law breakers to escape detection. But when the government has tried to extend "high-2" to other types of instructions, for example, to protect guidelines to prosecutors, it has been unsuccessful.

In Rose, the Supreme Court left open the question of whether there is a "high-2." The issue remained relatively dormant until 1978, when there were appellate decisions in two circuits which indicate that there is. In Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir. 1978), the court protected a BATF pamphlet entitled, Raids and Searches. In Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 752 (D.C. Cir. 1978), the court protected two FEA publications entitled, Refinery Audit Review Guidelines and Guidelines for Audit Modules and affirmed en banc 4-4 without writing an opinion.

On the same day it decided Ginsburg, Feldman & Bress, however, the D.C. Circuit also handed down an en banc decision in Jordan v. U.S. Department of Justice, 591 F.2d 753 (D.C. Cir. 1978). This case involved prosecutorial guidelines which give parameters to prosecutors after the "crooks are caught." The court could have decided that "high-2" was limited to guidelines before the law breaker was apprehended but instead appeared to deny the existence of "high-2" altogether.

Three months later, a district court in the D.C. Circuit considered the Government's "high-2" claim to protect portions of the Secret Service Manual. In Sturgeon v. Department of Treasury, No. 77-1961 (D.D.C. 1979), the court expressly considered both Ginsburg, Feldman & Bress and Jordan, and concluded:

The Court finds that the portions of the Secret Service Manuals withheld by defendants are internal instructions to government investigators relating to the methods they are to use in investigating crimes before legal action is taken with respect to them. This material is quite different from the prosecutorial policy material held not to be exempt in Jordan. The material sought in Jordan would not help defendants evade detection or apprehension; it would merely help their lawyers do a better job for them. Disclosure of Secret Service investigative procedures, rules and techniques contained in the material sought by plaintiff would, an the other hand appreciably assist violators in escaping detection and apprehension. Nothing in Jordan requires this material's production or forecloses its exemption. (Emphasis added.) Slip opinion at 4-5.

Later, this same court supported, without writing an opinion, the Government's withholding of portions of the Drug Enforcement Administration training manuals in Cox v. U.S. Department of Justice, No. 78-1944 (D.D.C. 1979). Because the court gave no reasons, it is impossible to know the thinking of the court.

A short time later, the D.C. Circuit upheld the withholding under Exemption Two of portions of the U.S. Marshals Manual. Cox v. United States Department of Justice, 601 F.2d 1 (D.C. Cir. 1979). Certain of these portions would apparently qualify under "high-2" as methods to apprehend criminals, but the court based its decision on a "low-2" theory.

In the most recent appellate decision, Sladek v. Bensinger, 605 F.2d 899 (5th Cir. 1979), which concerned portions of the DEA Agents' Manual, the Fifth Circuit avoided the "high-2" issue. The court cited Caplan and Jordan as the leading cases for and against the existence of "high-2" and then stated: "Because we have concluded that disclosure of the sections of the DEA manual requested by Sladek would not impeded law enforcement efforts there is no need for us to choose between the Second Circuit's and the D.C. Circuit's interpretation of Exemption 2 when disclosure would risk circumvention of the law." 605 F.2d at 902. At this writing, no decision has been made to seek certiorari in this case.

Thus, even though the Government has been successful in protecting sensitive law enforcement investigatory techniques and instructions, the statutory basis for their withholding remains somewhat clouded.

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Updated August 13, 2014