Sikes v. U.S. Dep't of the Navy

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: O’SCANNLAIN, Circuit Judge
• Citation: Sikes v. U.S. Dep't of the Navy, 896 F.3d 1227 (11th Cir. 2018)
• Decision Date: 19 July 2018
• Docket Number: No. 17-12421,17-12421
• Parties: Thomas W. SIKES, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF the NAVY, Defendant-Appellee.

896 F.3d 1227

Thomas W. SIKES, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF the NAVY, Defendant-Appellee.

No. 17-12421

United States Court of Appeals, Eleventh Circuit.

July 19, 2018

John Michael Hamrick, Matthew David Friedlander, Holland & Knight, LLP, ATLANTA, GA, for Plaintiff-Appellant.

James C. Stuchell, R. Brian Tanner, U.S. Attorney Service-Southern District of Georgia, U.S. Attorney's Office, SAVANNAH, GA, for Defendant-Appellee.

Before MARTIN, JULIE CARNES, and O’SCANNLAIN,^* Circuit Judges.

O’SCANNLAIN, Circuit Judge:

We must decide whether the United States Department of the Navy improperly withheld documents related to the suicide of Admiral J.M. Boorda in response to a request made under the Freedom of Information Act.

I

In 1996, United States Navy Admiral J.M. Boorda, then Chief of Naval Operations, committed suicide in Washington, D.C. He left two suicide notes at his home: one addressed to his sailors, which the Navy later released publicly, and one to his wife, which has not been released. These documents were found by Naval investigators and added to the Navy’s investigative file for Adm. Boorda’s death, as were a number of other documents, including six pages of handwritten notes regarding official business found in the backseat of Adm. Boorda’s official vehicle (the "backseat notes").

Thomas Sikes asserts that he is working on a book about the pressures of holding military office, in which Adm. Boorda’s death will feature prominently. For years, he has sought to obtain from the Navy copies of various records related to Adm. Boorda’s suicide, including both the backseat notes and the suicide note to Adm. Boorda’s wife.

A

In August 2011, Sikes filed two requests with the Navy under the Freedom of Information Act (FOIA) asking for certain documents related to Adm. Boorda. Request 1 asked for a list of the individuals who were invited to or who attended the ceremony during which Adm. Boorda took office as Chief of Naval Operations. The Navy gave Sikes that list but with many of the names redacted. Request 2 asked for copies of all documents found by Naval investigators in Adm. Boorda’s vehicle the day he died, including the backseat notes. The Navy refused to provide those documents, arguing that they were seized during the course of an investigation and were therefore not agency records.

In May 2012, Sikes filed suit against the Navy, asking that it be ordered to produce the documents responsive to Requests 1 and 2. Little over a month into litigation, the Navy gave Sikes eleven pages of material (including the backseat notes) in response to Request 2 and moved to dismiss Sikes’s corresponding claim as moot. The district granted the motion, finding that "all of the documents responsive to Plaintiff’s FOIA Request 2 have been disclosed." Sikes later asked that the Navy provide some additional verification that it had indeed given him everything within the scope of Request 2, but the Navy never provided such verification.

The parties continued to litigate Sikes’s Request 1 until the court ultimately granted summary judgment to Sikes and ordered the Navy to give him an unredacted copy of the attendee list. See Order Granting Motion for Summary Judgment in Part at 41, Sikes v. United States , No. 3:12-cv-00045 (S.D.) ("Sikes I "). In April 2014, the court entered final judgment and awarded Sikes more than $45,000 in attorneys fees. Neither party appealed.

B

In 2014, Sikes submitted eight more FOIA requests regarding Adm. Boorda, many of which were redundant. Two requests (5 and 10) are pertinent to this appeal.

Request 5, submitted on April 30, 2014, asked for another copy of the records that had been retrieved from Adm. Boorda’s car and given to Sikes in response to his earlier Request 2. Specifically, Request 5 asked the Navy to "furnish a complete copy of all material requested by me on August 26, 2011, in [Request 2]." The request also complained that no Navy official had ever "attested that the material previously furnished" in response to Request 2 "constituted all of the documents in the Navy’s possession that came within the scope of" Request 2. In response, the Navy provided no documents to Sikes, but asserted that a "review of the investigative file has determined that you have been provided a complete copy of all documents originally requested via [Request 2]." After Sikes filed an administrative appeal from the agency’s response, the Navy confirmed that it had "again reviewed the investigative file and determined that the records provided ... in response to your request of August 26, 2011, were complete." The Navy asserted that FOIA did not require the agency "to conduct additional searches in response to repetitive requests," and further that Sikes’s demand for "certification" of those earlier-disclosed materials had no basis under the statute.

Request 10, submitted on November 10, 2014, asked for an unredacted copy of the Navy’s 1996 Report of Investigation into Adm. Boorda’s suicide. In response, the Navy gave Sikes a redacted version of that report. The Navy withheld from the report a copy of the suicide note Adm. Boorda left at his home for his wife, citing FOIA privacy exemptions. Sikes again filed an administrative appeal with the Navy, arguing that the withholding of the suicide note was improper, but to no avail.

C

In September 2016, Sikes filed a second lawsuit against the Navy, which stated two causes of action for improper withholding of agency records under FOIA.

With respect to Request 5, Sikes alleged that the Navy had improperly withheld the materials found in Adm. Boorda’s car, including the backseat notes. Sikes’s complaint also detailed why he had requested those materials a second time. Namely, he alleged that after the Navy gave him the backseat notes in 2012, he received another memo from the Navy which stated that it had in fact destroyed such notes in 1998. He alleged that he thus had reason to believe the Navy’s 2012 production of the purported notes was false or fraudulent. He sought to compel the Navy to give him the notes once again, so that he could compare them to what he was given in 2012.

As to Request 10, Sikes alleged that the Navy had wrongfully withheld the suicide note Adm. Boorda wrote to his wife. He alleged two bases for improper withholding. First, he alleged that the Navy had previously disclosed the note by publishing a blurry photo of it, and thus could no longer withhold it. Alternatively, he alleged that the Navy had improperly withheld the note under FOIA’s privacy exemptions, because public interest in the note outweighed the privacy interests of Adm. Boorda and his family. He once again requested that the court compel the Navy to produce an unredacted version of the suicide note to him.¹

The Navy moved to dismiss Sikes’s complaint both for lack of jurisdiction and for failure to state a claim. The district court granted the motion, in effect finding that Sikes had not sufficiently stated a claim for improper withholding of either the materials from Adm. Boorda’s car or the suicide note.²

Regarding Sikes’s Request 5 claim, the court found that the Navy had not withheld the materials from Adm. Boorda’s car (let alone improperly), because it had already produced those same records in response to his earlier Request 2. Regarding the Request 10 claim, the district court rejected Sikes’s contention that the Navy had previously disclosed the contents of the suicide note by publishing an illegible photo it. The court failed to address Sikes’s alternative contention that—even if the suicide note had not previously been disclosed—the Navy’s withholding of the note under FOIA’s privacy exemptions was improper.

Sikes timely appealed.

II

Sikes first argues that the district court erred in dismissing his claim that, in response to Request 5, the Navy improperly withheld the documents found in Adm. Boorda’s car. FOIA generally requires agencies to make their records available to the public upon request, subject to certain exemptions. See generally 5 U.S.C. § 552. It further gives federal courts power "to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld ." Id. § 552(a)(4)(B) (emphasis added); see GTE Sylvania, Inc. v. Consumers Union of U.S., Inc. , 445 U.S. 375, 384, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980).

There is no dispute that the Navy has records responsive to Request 5 and that the Navy did not give such records to Sikes in response to his request. The only question is whether those records were "improperly withheld" from Sikes, given that the Navy had previously produced the same records to him in response to his Request 2 in 2012.

A

The Navy argues that, because it had given Sikes the materials from Adm. Boorda’s car years earlier, it did not withhold such records from him at all in response to Request 5. We disagree.

The Supreme Court has explained that, in FOIA, "Congress used the word ‘withheld’ only in its usual sense." U.S. Dep’t of Justice v. Tax Analysts , 492 U.S. 136, 150, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (internal quotation marks omitted). When an agency "refuse[s] to grant [a person’s] requests for [records] in its files, it [has] undoubtedly ‘withheld’ [such records] in any reasonable sense of that term." Id. This is true even if the agency knows the records are otherwise available to the requester. Indeed, an agency has " ‘withheld’ a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside of the agency where the document may be" retrieved. Id. (emphasis added).

Under this framework, there can be little doubt that the Navy withheld the materials found in Adm. Boorda’s car in response to Sikes’s Request 5. Sikes explicitly requested such materials, and the Navy acknowledges that it has them. But, instead of giving the records to Sikes, the Navy has essentially told him that he should already have access to them,...