High court rules rules against Navy in Wash. state ammo depot case

When Glen Milner decided to sue the U.S. Navy over the public's right to know whether Port Townsend and other communities are in danger from an explosion at a nearby munitions depot, he never dreamed he'd make an impact of his own in the nation's highest court.

Monday, the U.S. Supreme Court in an 8-1 decision reaffirmed the public's right to government records when it ruled that the exemption of the Freedom of Information Act (FOIA) pertaining to "personnel rules and agency practices" doesn't give the Navy the right to deny Milner access to the information he wants.

Justice Elena Kagan, giving the majority opinion, wrote that the "term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources."

The Navy argued that the information Milner wants, data about the storage and safety of munitions at Naval Magazine Indian Island, which is in Jefferson County, should fall under the personnel rules and practices exception. Milner specifically requested maps and data showing how far apart potentially explosive munitions are stored.

Justice Stephen Beyer gave the dissenting opinion that FOIA cannot be interpreted "with the linguistic literalism fit for interpretations of the tax code."

The ruling's impact is huge, said David Mann of Seattle, Milner's lawyer. "The Supreme Court hasn't stepped into FOIA very often." The last time, he estimates, was 30 some years ago.

"What it does is reinforces that the documents must be released and the exceptions are narrow. ... And that there's no such thing as a catchall exception."

Milner, 59, a Lake Forest Park electrician and a longtime peace activist, began making public-disclosure requests after participating in a 1986 protest over the delivery of Trident missiles at the Bangor submarine base in Kitsap County. He noticed signs on the train into the base identified the cargo as explosive and was puzzled when a news report quoted a Navy official saying no explosives were on the train.

Milner asked the American Civil Liberties Union how to make a FOIA request, and the documents he got in return proved the news report wrong.

He became hooked on holding government agencies accountable by requesting public records.

Seattle attorney Mickey Gendler defended Milner when he was arrested after blocking a train in a peace protest in the 1980s. It was Gendler's partner Mann who took the Indian Island case — pro bono.

One of a three-member law firm, Gendler & Mann, which specializes in civil rights among other things, Mann argued the case up the legal ladder. In the 9th U.S. Circuit Court of Appeals, the Navy won.

The announcement came in October 2007, three days after Gendler had a horrific bike accident on the Montlake Bridge that would result in severe spinal-cord injuries.

At the time, Milner wondered whether the accident meant the end of the case. "They're a very small firm. For them to continue on with this and to do so well is just incredible," Milner said.

Milner doesn't know when he'll get the records he requested.

When the appeals court ruled, it made its decision based on the Navy's argument that it qualified under the exemption, pertaining to personnel and practices. That's the issue the Supreme Court ruled on Monday.

The appeals court didn't rule on the Navy's other argument — that it should qualify for a FOIA exemption because it's a de facto law-enforcement agency, and the records release would compromise an investigation.

Milner's case has been remanded back to the 9th Circuit for a ruling on that argument.

Milner hopes the U.S. attorney representing the Navy will settle with him since the Navy has lost its primary argument.

Emily Langlie, spokeswoman for the U.S. Attorney's Office in Seattle, said, "We are still studying the decision and will confer with the Navy ... and determine what the next step will be."

Nancy Bartley: 206-464-8522 or nbartley@seattletimes.com