The United States Supreme Court’s 2011 decision in Milner v. Department of the Navy shut the door on an expansive interpretation of one of the nine enumerated exemptions to the public disclosure requirements mandated under the Freedom of Information Act. No longer can federal agencies seek cover behind the judicially crafted interpretation of Exemption 2 known as the “High 2” that permitted agencies to withhold documents from the public eye solely because disclosure of the information contained therein could risk circumvention of an individual agency’s regulations or statutes. However, Justice Alito’s concurring opinion in Milner hinted at the Court’s possible acceptance of an alternative option available to federal agencies that previously employed the High 2 to rebuff public requests for information. This Note focuses on federal agencies involved in the licensing and certification of individuals in public safety-sensitive positions—principally the U.S. Coast Guard and the Federal Aviation Administration—that prior to Milner either actively used or could have used the High 2 exemption to protect information relating to examination questions and answers used to evaluate license and certificate applicants’ competencies. This Note first examines the rise of the High 2interpretation through the circuit courts, its application by federal agencies, and the Supreme Court decision sounding the High 2’s death knell. This Note then argues that courts should embrace an interpretation of another Freedom of Information Act exemption, Exemption 7(F), to permit federal agencies involved in the licensing and certification of individuals in public safety-sensitive positions to withhold information relating to examination questions and answers.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person