PORT TOWNSEND — The U.S. Supreme Court ruled Monday that the Navy cannot use a particular exemption in the Freedom of Information Act to withhold explosives data and maps showing extent of damage if there were an explosion at Naval Magazine Indian Island.
Writing for the 8-1 majority, Justice Elena Kagan threw out a 9th Circuit Court of Appeals ruling, rejecting the Navy’s use of a Freedom of Information Act exemption that deals with a federal agency’s “personnel rules and practices” to withhold the maps and other data.
Kagan said that part of the federal disclosure law concerns “issues of employee relations and human resources.”
But Kagan said the Freedom of Information Act, or FOIA, Exemption 7, which protects “information compiled for law enforcement purposes” from disclosure, “remains open for the Ninth Circuit to address on remand.”
Indian Island spokeswoman Sheila Murray said the Navy is reviewing the 35-page decision, including Justice Stephen Breyer’s dissent (the text of which is available at http://tinyurl.com/46bgmh8).
“It still has to be litigated,” Murray said. “It’s not over yet. Of course the Navy respects what the Supreme Court said.”
Glen Milner, 59, of Lake Forest had filed the FOIA request in 2003, he said Monday.
“We don’t have the records yet,” said Milner, a peace activist and unemployed electrician.
But he called the ruling “a historic change in the law” that will limit the federal government’s ability to withhold information on the basis of personnel policies.
“I’m happy about it,” Milner said.
“I thought our case was good. I know I’m an individual person who was going against the Navy. I wanted the case to be about FOIA, not about a peace activist challenging the Navy.
“It’s still about the FOIA. The Navy is an honorable agency. Their concerns do not necessarily match the rest of society’s.
“People have a right to know what’s going on in their backyards.”
Naval Magazine Indian Island provides ordnance logistics, including storage, to Northwest Navy ships and the Pacific Theater of operations.
It covers 7 square miles across the bay from Port Townsend and adjacent to Marrowstone Island.
Milner said people who live near the base have valid reasons for wanting to know whether they would be endangered by an explosion.
An explosion at the Navy’s Port Chicago, Calif., ammunition depot during World War II killed 320 people.
Milner has raised safety concerns about several Northwest naval facilities, filing his first FOIA request in 1986 regarding the contents of a train coming into the Navy submarine base at Bangor.
The Navy later admitted that the train contained 112,000 pounds of explosives, Milner said.
“I realized a lot of people don’t know, and no one was asking, what was going on in their neighborhoods.”
Seattle lawyer David Mann, who said Monday he argued the case pro bono on Milner’s behalf, said the Supreme Court has 25 days to remand the case to the 9th Circuit Court of Appeals.
“I’m feeling fantastic,” Mann said, adding that the government’s use of the personnel-rules exemption for withholding such documents a “High 2 Exemption.”
The reasoning was that “if their personnel used the documents, and release of which risked circumvention of the law, they didn’t have to release it,” Mann said.
“It was kind of a made up exemption. Our intent was to try to convince the court there was no such thing as a High 2 Exemption. It’s just been a catch-all exemption that agencies have used for over 30 years now.”
The government said that releasing the maps could allow someone to identify the precise location of the munitions that are stored on Indian Island.
Breyer, the lone dissenting justice, said the courts have consistently allowed broad use of the exemption for 30 years.
“I would let sleeping dogs lie,” Breyer said.
Kagan said the Navy might have legitimate interests in keeping the maps out of public circulation.
She said the government could stamp the maps “classified,” which would keep them from being disclosed under FOIA.
Or the Navy could perhaps rely on another FOIA provision that protects law enforcement information in some circumstances, she said.
But Mann contended that the maps were not drawn for law enforcement purposes.
“If they have a manual on how to conduct searches and seizures, they may not want that released,” Mann said.
“These maps show the design and safety impacts of explosions on the base. They are not law enforcement maps.”
The case ruled on Monday by the Supreme Court is Milner v. Department of the Navy, 09-1163.
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The Associated Press contributed to this report.
Senior Staff Writer Paul Gottlieb can be reached at 360-417-3536 or at paul.gottlieb@peninsuladailynews.com.
