Sikes v. United States

• Decision Date: 06 December 2013
• Docket Number: Civil Action No. CV 312–045.
• Citation: 987 F.Supp.2d 1355
• Parties: Thomas W. SIKES, Plaintiff, v. UNITED STATES of America; United States Navy; United States Department of the Navy; Judge Advocate General; and Does 1–10, Defendants.
• Court: U.S. District Court — Southern District of Georgia

987 F.Supp.2d 1355

Thomas W. SIKES, Plaintiff,

v.UNITED STATES of America; United States Navy; United States Department of the Navy; Judge Advocate General; and Does 1–10, Defendants.

Civil Action No. CV 312–045.

United States District Court,

S.D. Georgia,

Dublin Division.

Dec. 6, 2013.

John R. Hunt, Stokes, Roberts & Wagner, ALC, College Park, GA, H. Lehman Franklin, Jr., H. Lehman Franklin, Jr., PC, Statesboro, GA, for Plaintiff.

Melissa Stebbins Mundell, U.S. Attorney's Office, Savannah, GA, for Defendants.

ORDER

DUDLEY H. BOWEN, District Judge.

Presently before the Court in the captioned case are cross-motions for summary judgment by Defendants United States of America, United States Department of the Navy, Judge Advocate General, and Does One through Ten (“Defendants”) (doc. no. 24), and by Plaintiff Thomas W. Sikes (“Plaintiff”) (doc. no. 30). Upon due consideration and for the reasons set forth below, the parties' cross-motions are DENIED IN PART and GRANTED IN PART.

I. BACKGROUND

Plaintiff brought this action pursuant to the Freedom of Information Act (“FOIA”), codified at 5 U.S.C. § 552 et seq., to obtain documents and information alleged to be in the custody and control of the United States Department of the Navy. (Doc. no. 1.)

A. Joint Stipulation of Facts¹1) Admiral Jeremy Michael Boorda

Jeremy Michael Boorda (“Admiral Boorda”) was an admiral in the United States Navy. (Jt. Stip.¶ 1.) He served as Chief of Naval Operations (“CNO”) ² from April 23, 1994, until his death on May 16, 1996. ( Id. ¶¶ 3, 6.) Admiral Boorda's career was notable in that he entered the United States Navy as an enlisted sailor and was the first CNO to not attend the United States Naval Academy. ( Id. ¶ 2.)

On or about April 23, 1994, Admiral Boorda was sworn in as CNO. ( Id. ¶ 3.) His Change of Command Ceremony occurred at the United States Naval Academy in Annapolis, Maryland. ( Id.) Over 3,800 individuals were invited to attend the ceremony, including President William Clinton, Vice President Al Gore, Secretary of Navy John Dalton, Secretary of Defense William Perry, various United States congressmen, and other domestic and foreign dignitaries. ( Id. ¶ 4; see id., Ex. I.) Six Navy video camera crews and four Navy photographers covered the ceremony. ( Id.) In addition to the Navy's media coverage, a number of civilian news groups covered the event, including The Washington Post, The Navy Times, and The Annapolis Capital Gazette. ( Id. ¶ 5.)

On May 16, 1996, Admiral Boorda was found dead at his home. ( Id., Ex. B.) During an investigation of Admiral Boorda's death, the Naval Criminal Investigative Service (“NCIS”) found “[s]everal memorandum notes, business cards, laminated cards containing telephone numbers, and a six page handwritten document which appear[ed] to be notes relating to official business” in his vehicle. ( Id., Ex. B). The NCIS concluded that Admiral Boorda's death was a suicide. ( Id. ¶ 6.)

2). FOIA Request 1

On August 26, 2011,³ Plaintiff submitted two FOIA requests, seeking access to certain documents and information. ( Id. ¶¶ 7–8; id., Exs. A–B.) Plaintiff filed the first FOIA request (“FOIA Request 1”) “with the FOIA Officer at the [CNO]/Secretary of the Navy's FOIA Requester Service Center in Washington, DC.” ( Id. ¶ 7; id., Ex. A.) FOIA Request 1 sought “a complete list of all invitees and attendees for the April 24, 1994 CNO change of command ceremony, including individuals, their spouses, and the invitees' guests.” ⁴ ( Id.;id., Ex. A.) Initially, the Navy's representatives denied FOIA Request 1, claiming that they were unable to locate the requested information. ( Id., Ex. E.) After Plaintiff had appealed this determination, however, the Office of the CNO notified Plaintiff that it had discovered the requested information at its Protocol Office and would release the materials after processing them. ( Id. ¶ 13; id., Exs. G–H.) Nevertheless, more than half of the names on the invitation list were redacted; only the names of military servicemen at or above “flag-level” rank, “[c]elebrities with recognizable names,” and persons with “strong honorifics” remained intact. ( Id. ¶ 14; id., Exs. H–I.) The Office of the CNO informed Plaintiff that release of the names of individuals who did not hold “public facing roles” would be an “unwarranted invasion of their personal privacy” and that the names were therefore exempt from disclosure under 5 U.S.C. § 552(b)(6). ( id. ¶ 14; id., Ex. H.)

On February 25, 2012, Plaintiff appealed this determination to the Office of the Judge Advocate General (“Office of the JAG”). ( Id. ¶ 16; id., Ex. J.) On March 19, 2012, the Office of the JAG denied Plaintiff's appeal, concluding that the release of the redacted names would constitute an “unwarranted invasion of privacy.” ( Id. ¶ 20; id., Exs. N–P.)

3) FOIA Request 2

Plaintiff's second FOIA request (“FOIA Request 2”) sought access to the “[s]everal memorandum notes, business cards, laminated cards containing telephone numbers, and [ ] six page handwritten document which appear[ed] to be notes relating to official business” recovered by the NCIS from Admiral Boorda's car on the date of his death. ( Id. ¶ 8; id., Ex. B.) In response, the NCIS notified Plaintiff that the materials could not be released because they were “seized in the course of an investigation and entered into an evidence custody locker” and consequently were not “agency records” subject to disclosure under the FOIA. ( Id. ¶ 23; id. Exs. O–R.) Plaintiff appealed this determination to the Office of the JAG on January 6, 2012. ( Id. ¶ 25; id., Ex. S.) On February 9, 2012, the Office of the JAG denied Plaintiff's appeal, concluding that the materials were “personal records” and not subject to the FOIA's disclosure requirements because they were “personal notes/items” created and possessed solely by Admiral Boorda. ( Id. ¶ 26; id., Ex. T.)

On June 27, 2012, Defendants subsequently provided Plaintiff “documents that ... were responsive to FOIA Request 2.” ( Id. ¶ 27; see Pl.'s Br. Supp. Summ. J., Ex. 3.) However, Defendants indicated that the requested documents were “discovered after the initial response to FOIA Request # 2.” (Pl.'s Br. Supp. Summ. J., Ex. 3.)

B. The Parties' Declarations1) Plaintiff's Declaration

Plaintiff states in his sworn declaration that he is a “writer who is interested in Admiral Boorda, his tenure as the Chief of Naval Operations, and the circumstances surrounding his apparent suicide.” (Pl.'s Br. Supp. Summ. J., Ex. 2, ¶ 2.) He seeks to learn more about “the pressures affecting the CNO's Office” and believes that “many of the attendees at the swearing-in ceremony ... may have insight into Admiral Boorda's temperament, work patterns, and responses to stress, as well as the types of stressors extant in the CNO's office during the time period.” ( Id. ¶¶ 3–4.) He expects that “[m]any of the people on the guest list ... may have additional personal ties [to Admiral Boorda] that could shed light on his character, background, and possible reasons for his tragic suicide.” ( Id. ¶ 5.)

2) Declaration of Robin Patterson

Defendants offer the declaration of Robin Patterson (“Patterson”), Head of the Privacy and Freedom of Information Act Policy Office of the CNO. (Defs.' Br. Supp. Summ. J., Ex. A.) Patterson's office is “responsible for processing FOIA requests on behalf of the both (sic) [CNO] and the Department of the Navy” and is the “highest level FOIA office within the U.S. Navy.” ( Id. ¶ 4.) Patterson asserts that his office acted properly in response to FOIA Request 1, explaining:

[M]y office has a duty to not release personal information if release would be a clearly unwarranted invasion of personal privacy, unless that privacy interest is outweighed by the public's interest.... As a general rule ... we will not release the names of individuals in lower ranks or the names of those who are not office directors unless doing so could in any way shed light on the U.S. Navy's performance of its statutory duties.... [S]ince Mr. Sikes was unable to present any plausible public interest in the names of the other lower ranking attendees, we redacted those names.

( Id. ¶ 8.)

3) Declaration of Grant Lattin

Defendants also offer the declaration of Grant Lattin (“Lattin”), Director of the General Litigation Division of the Office of the Judge Advocate General. (Defs.' Br. Supp. Summ. J., Ex. B.) Lattin's office “makes a final agency determination on approximately two-thirds of the FOIA appeals within the [Department of the Navy].” ( Id. ¶ 2.) Lattin explains that Plaintiff's appeal of FOIA Request 1 was denied because the redacted names were “of no public interest.” ( Id. ¶ 8.) He echoes Patterson in that

the Department of the Navy has a duty to protect personal information if release would be a clearly unwarranted invasion of personal privacy, unless that privacy interest is outweighed by the public's interest ... As a general rule, Code 14 encourages U.S. Navy FOIA offices to ... not release the names of individuals in lower ranks or who are not office directors unless doing so could in any way shed light on the U.S. Navy's performance of its statutory duties.

( Id. ¶ 9.) Lattin asserts that neither his office nor Plaintiff identified “any possible public interest in the material....” ( Id. ¶ 10.)

Regarding FOIA Request 2, Lattin's office upheld the NCIS's determination that the materials requested were not subject to disclosure under the FOIA. ( Id. ¶ 11.) Lattin notes that “in determining whether a record is a personal record or an agency record an agency should examine the totality of the circumstances surrounding the creation, maintenance, and use of the record.” ( Id.) Lattin observed that the requested materials were Admiral Boorda's personal notes, have never been “submitted to the [Department of the Navy] for any official use [, and] were never made part of a [Department of the Navy] record.” ( Id.) Therefore, Lattin determined that...