my best to enforce that and with that i think we'll get underway with the first case thomas devious psychs versus the united states department of the navy made please the court matt freelander on behalf of helen thomas w sykes so this is a freedom of information act or case that involves mr sikes request for two separate documents that were part of an  which are notes found in the back of mr borders vehicle and a suicide note which was found on the desk in his office his home office the foyer provides that upon request a government shall provide agency records unless one of nine exclusive statutory exemptions a plot the exclusivity of those exemptions is both from the plain language of as well as the u s supreme court interpretation of that plain language that is that the district judge did not analyze the exceptions in course that something you say needs to be done i gather that's exactly right your honor with respect to the suicide note mr sikes alleges that the privacy exemptions do not apply to that document under this court's precedent the district court and under the statutory language itself the asking that you analyze the privacy exemption at all that's not the really for even for the notes from the backseat while with the notes from the back seat we would ask that since their sole grounds for withholding those notes was  essentially had a repeat of what he had already been given correct i don't know if it was a centrally the same request because subsequent incidents happened that made mr sikes believe that perhaps the original baxi notes he received in two thousand a  a person can request records get the records a year later say i tried again i'm like the same records and just keep going on and on and on and your honor that is our position so if every six months you want to harass particular agency every six months the agency that's very backlog has to stop everything and come back and be just what they gave you six months before yeah and there's a couple of for us of all there's no harassment here there was really not it was a second request for the documents because he was suspicious of the authenticity of the first documents what kind of a showing did you make of this suspicion it was or something that occurred that some information that came to light yet yes your honor there is the in memorandum so in april two thousand and fourteen mr sikes asked for everything that had been provided to him in two thousand and eleven and the navy memorandum it's it's written from and c i s officer and it says various miscellaneous handwritten notes were found in the backseat of the vehicle those items excluding the typewriter were destroyed by command in the president's in the presence of eighty eight yet in two thousand and eleven the navy produced what it purports to be the backseat notes to mr sikes and now mr sikes of course questions the authenticity of that prior production which is why he requested them again and why it's you know odd that the it may not be an exception but what you're arguing is that they withheld documents are going to you're basically the premise of the whole exercise is did they withhold the document correct and before you get to the exceptions did they withhold the document now they produced at the first time you ask for well i think i think the tax analysts case from the supreme court is pretty informative they they define withholding are they discussed what withholding meant and in that case you know the supreme court said one the department refused to grant plaintiff's request for the district court all over creation to find different documents here there's none of that and they didn't withheld the document they gave it to him he just wants them to go through the very same exercise again essentially yeah that's right and also another thing i wanted to address was there's really no there's no risk of kind of ad nauseum harassment here i mean the freedom of information act was amended in two thousand and sixteen and it provides now that after three requests for the same document the navy is obligated to post to that document and make it elect available by electronic means to any future for a request or there's also a separate subdivision of the statute that says you mean after three request and the point is your honor if this court rules in our favor there is no risk of repeat harassment of the navy from repeat requests because after the third request the navy can simply say we've had the navy has an obligation to post the document to their on line reading room and then they can just send a letter saying to any future request or see our on line reading room and give a link when i get a problem when the tax saying that once that you've requested three times we're going to publish it to our online reading room any future requests will simply direct you to that i mean our position is that's not unreasonable at all can i ask you a question about the suicide note yes or  isn't that subject to the privacy exemption again judging scanlan we are not we are not arguing by any means that the privacy exemption does not apply we understand that it is very possible that the district court will determine that the privacy exemption does apply all we're asking is that the district court conducted the  review of the claimed exemption essentially the district court is not allowed to call its own files and that's exactly what happened here they said privacy exemption applies and then they argued a motion to dismiss saying mr sikes is not challenge the privacy exemption which determination here that if we are satisfied that there is no set of facts or additional argument that could be brought to bear that would change the view of the privacy exemption just can i think the answer is that this this court is a court that is a correction of errors it's not a fact finding court and the district court is best suited to make to receive evidence and make a determination as to whether the privacy interests in the suicide note outweigh any public and you know in fact you know the navy cites a lot of cases on this on the suicide note they are all summary judgment cases in which the district court received evidence none of them or the motion to dismiss stage so the procedural posture of this case being in motion is ness is critical to our suicide note argument and all we're asking is that this court re man so that the district court can consider the propriety of the privacy good morning to please the court good morning your honor steam stooge will for the united states for this court to remand on the backseat notes issue it would have to make two rulings first that the navy violated  declined to give him a second copy of the backseat notes and second assuming that violation whether mr sikes can seek a remedy for that violation if it with a second federal for a lawsuit the answer to both those issues is known th the navy did not violate for it when it declined to give him a second copy of the notes my authority for that replies heavily on the supreme court's decision in g t e sylvania in that case the court stated that the typical for a case arises in  situation in which the government refuses to turn over documents that will reflect poorly on the agency in its performance of the duties and in that typical context yes the government has to point to one and four as nine exclusive exemptions an entirely different context there the government withheld the document pursuant to a federal district court order to do so and the supreme court affirmed that decision and said that the agency did not violate for  we have very similar circumstances here it's almost a one hundred eighty degrees whereas in g t sylvania the government was under a district court order not to provide the documents here we are under a district court order saying that we already did fully disclose all the documents in response to his first request counsel could you help us understand the issue about the end c i s report which indicated that the documents were destroyed  it described all the various items it found in one of those items was indeed in the backseat notes that's at issue here that memo says explicitly that the navy at appended copies of the back seat notes to that nine ninety six memo the navy gave mr sikes that very memo not just the backseat notes but the the cover memo to which the backseat notes were preserved in attached in response to sykes one the confusion and originals it's undisputed that the navy retained copies he did so in the one thousand nine hundred and six memo regarding the inventory of his car it's undisputed that what the navy destroyed two years later were the originals so there is an absolutely no suspicion whatsoever in fact you know so what is the navy rely on in terms of its refusal to produce this on the second we rely entirely entirely on g t e sylvain your honor  court said that a rising outside of the ordinary context does not need to be settled pursuant to one of the specific exemptions and that's what we've done here there are very extreme circumstances in this case your honor i mean first of all the navy entirely d v m the documents he's requested in response to a court order insights one the district court explicitly found quote all documents responsive to requests to have been disclose that they were before your questions for documents that the government might otherwise withhold because they reflect poorly on the agency and that's something we have here and there is a really extreme circumstance i mean beside the fact that we gave him the documents aside the fact that he didn't dispute it he then filed a duplicate of requests this is request number five and it's not just that this is the same person asking for the same documents it's a request five explicitly incorporated by reference requests to mr sikes asked sent to the navy a request for another complete copy of the document you gave me in response to the attacks request and he attached a verbatim a question so there's no dispute that he's asking for exactly the same documents in both cases the navy responded that it by theology of their requests was i would like what i've already requested that was how he phrased it and yes your honor i believe i'm quoting directly request five asked for a complete copy of all materials requested in requests to and then he attached an explicit copy of requests to there was no distinction documents in the passage between the time he requested to and five cannot turn to the issue of collateral estoppel that's what you argued in your brief to us right yes but where did you argue that to the district oh it was in the motion to actually in the motion to dismiss we argued reached you your honor which is not the same thing as collette is correct one of course this is going for him so you didn't argue collateral to the district court that's correct and you didn't argue raise you to cut it to this court that's correct of course this this court can affirm on any alternative basis and the district court did not either doctrine in terms of that requirement well your honor dismissal on the merits is is a requirement of race to canada but not of collateral stop that's why i've only argued collateral stoppel here collateral stoppel applies when in the first lawsuit between identical parties the district court with access exercising proper jurisdiction were told on an issue of fact or law that the the parties fully litigat there's no requirement that the ruling on that issue be on the merits this important distinction restrict race to color applies to claims claims in the broad sense of a cause of action or ground of for relief that a pla asserts in his or her complaint so in that context it makes sense that the ruling on the cause of action has to be on the merits as opposed for some procedural deficiency such as statute limitations for example but i haven't invoked to invoke collateral stop and that applies not to a broad claim or ground relief but to any issue of law or fact that was that was litigated in the previous case and the i guess just so far i understand the  litigated as required for the application of collateral estoppel well rim remember it was it was moot because the parties agreed and the district court found that we gave him the document he sought so it wasn't moot because the the plaintiff temporarily lost standing to turn to some external factor it was moot because we gave him the document that he seeks  and actually but i do have further authority for that your honor i didn't i did not cite this in my brief but there is an eleventh circuit opinion called planning p l e m i n g the site is one for two three d at one three five nine and in that there's about us a slight small paragraph in which this court said that for purposes of collateral stoppel and issue a factor law is fully litigated if three things happen issue was properly raised it was submitted to the court for determination and the court determined it and we've already said you didn't raise collateral estoppel there i mean the the your how about the planning case describes what fully litigate means all we have to do is have raised the issue of fact or law submitted it and the court determined it and that's what we have your we we raise the issue as to whether we provided in the backseat notes insights one in fact we represented that we had done that he agreed in his response to our motion to dismiss he said that the navy has complied as if that weren't enough the district court entered an order specifically finding that the navy had produced important point i should make is you might have when i first picked up this file at the end of the p r i wondered why the navy didn't just give him the documents again it seems like that would've been simpler but after i dug into the record i realized the need actually went further much further and tried to do him favor he as he explained in his appeal of the denial of requests five he raised what he called certain quite certain in explicable oddities that suggested that there were more documents now it would have been the easiest thing in the world for the navy to just give them another copy of the six page document that he indisputably already had but they didn't do that instead on appeal they wrote him a two page single spaced letter addressing each and every one of these what he calls inexplicable oddities and completely debunked them and shown them why each one was entirely unfounded it didn't stop there that in the second part the navy said we've conducted a second review and concluded that we responded to you fully the first time it finally concluded that confirmed in writing that all documents responsive to the quest have been provided so the navy's response was ten requests two was the first one that asked for the backseat minutes that was addressed and sikes one at the conclusion of that case he submitted because number five that's what i talked about earlier it explicitly adopted by reference requests to you asking for the same documents as if that were enough then request six seven eight and nine further asked for different variations of the backseat documents before your time as i would be interested in your response to opening argument made by opposing counsel about whether we can apply the privacy exemption or not given the fact that the district court did not make a specific finding on that that's correct yes your honor this court absolutely can on the strength of two supreme court precedents a vicious and reporters committee in both those cases the supreme court held that in certain situations request for documents the balance of the privacy interests characteristically tips in favor of withholding in that those two cases involved a vision volved the famous case of the photos of the foster's  that and those were merely visual representations of a body they may have been challenging and unpleasant but the they could not have conveyed and even of the intimate details of the admiral of the victim's life whereas here we're talking about a suicide note miss and the district court sent this on a motion to dismiss it was required to take mr sikes allegations as fact throughout this entire proceeding he has alleged that the document he's after is admirable or to suicide note to his wife left in the personal residence they shared found on his private desk in his private study those must be taken as fact as if that's not enough we have thievish in which the court said that any time a person seeks any data not just photos but any data concerning the mysterious death of another then he has a heightened burden fersen said that the th a privacy interest for the surviving family members it's said that categorically without any examination whatsoever of the details of the photos so for that reason this court simply doesn't need to examine the specifics of the suicide  e because we know it's even more sacrosanct than the photos in favor may i have briefly concluded the yes so in both fave ish and reporters committee there's no indication whatsoever that the supreme court ever looked at the details it simply acknowledged as a categorical matter that the survivors had a privacy interest it didn't need to look at the details to assess how strong the privacy interest and that's because in those cases the public kitty just a few points in response now just can i believe you are on the fave panel that was before the ninth circuit that's right and as you may recall that was a summary judgment case and there was evidence presented by the government same with reporters that was a summary judgment case discussing whether rap sheets of inmates was a crude could be categorically banned they did not reach the decision that there could be a categorical ban on such documents until it had received evidence from the litigants at the summary judgment stage you know the procedural posher again in this case is critical this was a motion to dismiss the district court said mr sikes is not challenging the privacy exemption that is incorrect and by doing that it abrogated its statutory duty to review the propriety of the exemption this circuit that an adjudication on the merits is required for either of those doctrines to apply there was no adjudication on the merits here with respect to the backseat no it's because that issue was dismissed is moot even the plumbing case he cited i mean he  does they don't meet their own standard it says that the court did not you know one of the final element was that the court kind of determined to reach the question on the merits and that didn't happen there that can't happen when there's a dismissal so neither of those doctors joining a government agency from disclosing certain documents that prohibited a fair request and yes that is not one of the nine exemptions but the d c circuit and tax analysts looked back at sylvania and said that case is clearly limited to its facts and it is the sole exception to the nine exclusive exemption requirement and the supreme court and tax analysts visited the issue as well and said essentially the same thing that that that the selenium cases are restricted to its facts and that means that the general rule that the nine exemptions are exclusive is what's control judge carnes to get back to some your questions from the first time you know mr sikes could ask ten times for these documents if he asks again that will implicate the statutory requirement to post to the on line reading room so the subsequent seven requests will simply require the navy to write mr sikes a letter directing him to that website also from a policy perspective this kind of we call it a one shot rule in our briefs it's just  i could have asked for documents twenty years ago and i lost them or they were destroyed or i moved or perhaps what the navy sent me the first time wasn't the right thing in fact that's what mr sikes allege happens  alleges happened here in those instances it cannot be the case that you are forever prohibited for asking for the docket from asking for the documents again subsequently i mean that really just doesn't make sense he's not legit he lost them his concern is the last put it this way there is no case prohibiting repeat requests then he cannot cite to a single case saying you can't ask again and from a practical standpoint adopting such a rule would not only abrogate the statute plain language of the statute and the u s supreme court authority but it would make sense to forever bar someone from asking for a document again and again these kind of there is no risk of harassment because of the new amendments to the statute so u nless the court has any further questions all rest i ask that you reverse on notice that you referred to the exclusion number six or exemption number six while the navy talked in terms of existence exemption number seven c i mean i would assume you would agree either might be applicable and not worthy of consideration i want your honor exemption six applies to information that is private and