Freedom of Information Act Guide, May 2004
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.)
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
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)
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)
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
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:
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
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.)
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. Â§ 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. Â§ 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
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) Â¶ 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) Â¶ 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
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
34. See 10 U.S.C. Â§ 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. Â§ 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.
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]
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
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
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. Â§ 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
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. Â§ 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. Â§ 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) Â¶ 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
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
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
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
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) Â¶ 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
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
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
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
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. Â§ 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
144. Pub. L. No. 99-570, Â§ 1802, 100 Stat. 3207, 3207-48, 3207-49 (codified as amended at 5 U.S.C. Â§ 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
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
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
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. Â§ 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").