Ancient Coin Collectors v. U.S. Dept. of State

• Citation: 673 F.Supp.2d 1
• Decision Date: 20 November 2009
• Docket Number: Civil Case No. 07-2074 (RJL).
• Parties: ANCIENT COIN COLLECTORS GUILD, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

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673 F.Supp.2d 1

ANCIENT COIN COLLECTORS GUILD, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil Case No. 07-2074 (RJL).

United States District Court, District of Columbia.

November 20, 2009.

Scott Allan Hodes, Washington, DC, for Plaintiffs.

Brian P. Hudak, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

The plaintiffs, Ancient Coin Collectors Guild, International Association of Professional Numismatists, and Professional Numismatists Guild, Inc., filed this suit against the U.S. Department of State (the "Government" or "State Department") in relation to a Freedom of Information Act ("FOIA") request. The State Department has filed a Motion for Summary Judgment, asserting that its search was adequate and that the information in question was properly withheld under relevant FOIA exemptions. For the following reasons, this Court agrees and GRANTS the State Department's summary judgment motion and DENIES the plaintiffs' cross-motion for summary judgment.

BACKGROUND

The plaintiffs made eight FOIA requests between July 30, 2004, and October 11, 2007, (see Compl. [Dkt. #1] ¶¶ 22-58), seven of which remain at issue in this case.¹ They seek information from a component of the State Department—the Bureau of Educational and Cultural Affairs ("the Bureau")—relating to import restrictions on ancient coins from Cyprus, Italy, and China, (id. ¶ 15). The Cultural Property "advisory Committee (the "advisory committee"), advises the Bureau on the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2601. (Def.'s Mem. in Support of Mot. for Summ. J. [Dkt. #16] ("Def.'s Mot.") at 2.)

In response to the plaintiffs' FOIA requests, the Government conducted multiple comprehensive searches, (Decl. of Margaret P. Grafeld, Ex. A [Dkt. #16-2] ("Grafeld Decl.") at 14-26), which resulted in 128 responsive documents. (Supp. Grafeld Decl. [Dkt. #18-2] ¶ 2.) The Government released most of the information— seventy documents in full and thirty-nine documents in part—and withheld nineteen documents in full. (Id.) On November 15 2007, the plaintiffs filed suit in this Court to compel the Government to produce the withheld information.

ANALYSIS

The Court reviews summary judgment motions under FOIA de novo, requiring the Court to determine whether the agency has conducted an adequate search and whether the documents requested are exempt from disclosure under FOIA. See (Judicial Watch, Inc. v. U.S. Dep't of State, 650 F.Supp.2d 28, 32 (D.D.C.2009). A court "draw[s] all justifiable inferences in the non-movant's favor," id.) (internal quotation omitted), and grants summary judgment in favor of the government when "`the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law,'" id. (quoting Fed.R.Civ.P. 56(c)). For the following reasons, the Court grants summary judgment in favor of the Government because it conducted an adequate search and it properly withheld documents under the appropriate FOIA exemptions.

1. The Government Conducted an Adequate Search.

An agency must demonstrate its search in response to a FOIA request was "`reasonably calculated to uncover all relevant documents.'" Amuso v. U.S. Dep't of Justice, 600 F.Supp.2d 78, 87 (D.D.C.2009) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (additional internal quotation omitted)). The agency may meet this burden by submitting affidavits or declarations, and "[i]n the absence of contrary evidence," affidavits and declarations are "sufficient to demonstrate an agency's compliance with FOIA." Id. Based on the Declaration of Margaret P. Grafeld,² which details extensively the databases searched, the staff that conducted the searches, and the search terms used, this Court finds the Government conducted a search reasonably calculated to uncover all relevant documents. (See Grafeld Decl. at 14-26.)³

2. The Government Properly Withheld Information.

In withholding information, the Government has invoked numerous FOIA exemptions, and the plaintiffs argue the Government improperly invoked each one.⁴ I disagree. The Government withheld information provided by foreign government officials with an express understanding that the United States was to hold the information in confidence. This information was properly withheld under FOIA exemption (b)(1), which authorizes the withholding of matters classified by an Executive Order. 5 U.S.C. § 552(b)(1). Executive Order 12,958 provide that information is "Confidential" if its release "reasonably could be expected to cause damage," Exec. Order No. 12,958, 60 FR 19825 (1995), sec. 1.2(a)(4), "to the national defense or foreign relations of the United States," id., sec. 1.1(1).

As the Grafeld Declaration explains, the information in question was exchanged between the United States and other nations on the condition of confidentiality, and its disclosure would damage foreign policy by harming the United States's ability to conduct successful negotiations. (Grafeld Decl. at 29).⁵ The State Department thus properly withheld the information under exemption (b)(1). See Krikorian v. Dep't of State, 984 F.2d 461, 465 (D.C.Cir.1993) (finding the government properly withheld information communicated to the U.S. government on a confidential basis that would jeopardize "reciprocal confidentiality"); Public Citizen v. Dep't of State, 276 F.3d 634, 644-45 (D.C.Cir.2002).⁶

The Government also withheld information about closed advisory committee proceedings and information communicated to and from the committee in confidence, invoking exemption (b)(3). (Def.'s Mot. at 7.) This exemption provides that FOIA does not apply to matters that are (1) "specifically exempted from disclosure by statute" if the statute either (A) requires withholding or (B) establishes the criteria for withholding. 5 U.S.C § 552(b)(3); see also Judicial Watch, Inc., 650 F.Supp.2d at 32-33. For the following reasons, the Court determines, in this matter of first impression, that the provisions of the Cultural Property Implementation Act as discussed below is a disclosure-prohibiting statute in this case.

The Convention on Cultural Property Implementing Act establishes that information discussed in closed meetings of the Cultural Property Advisory Committee shall not be disclosed under the Federal Advisory Committee Act, which makes FOIA's standards applicable to advisory committees. See Washington Research Project, Inc. v. Dep't of Health, Education and Welfare, 504 F.2d 238, 248 n. 15 (D.C.Cir.1974) (noting that the Federal Advisory Committee Act "makes the FOIA standards applicable to advisory committees' reports" in limited circumstances); see also Forsham v. Califano, 587 F.2d 1128, 1135-36 (D.C.Cir.1978) (noting that agencies, not advisory committees, are subject to FOIA). The provision, 19 U.S.C. § 2605(h), states that the Federal Advisory Committee Act, (see Def.'s Mot. Ex. D [Dkt. #16-6] FACA § 10(b)), applies to the Cultural Property Advisory Committee, "except that the requirements of ... [a specific provision of the Federal Advisory Committee Act] relating to open meetings, public notice, public participation, and public availability of documents ... shall not apply to the [c]ommittee" if "the President or his designee" determines that disclosure "would compromise the Government's negotiating objectives or bargaining positions on the negotiations of any agreement authorized by this chapter."⁷ Thus, although 19 U.S.C. § 2605(h) does not explicitly mention FOIA, it nevertheless specifically exempts a provision of the Federal Advisory Committee Act that makes FOIA's provisions applicable to the advisory committee. Thus, 19 U.S.C. § 2605(h) is a disclosure-prohibiting statute. As such, the information is properly withheld if it falls within the statute's established criteria for withholding. See 5 U.S.C. § 552(b)(3).

Specifically, information is to be withheld if the President or his designee determines that disclosure would compromise the government's negotiating objectives or bargaining positions. 19 U.S.C. § 2605(h). The President's designee here is the Bureau's Assistant Secretary, and the State Department has determined that disclosure of the information here "would compromise the U.S. Government's negotiation objectives and/or bargaining position on the negotiation of agreements." (See Grafeld Decl. 35-36.) The Grafeld Declaration notes that the information must be withheld "so as not to interfere with the multi-step decision-making process and the ability to work with the foreign government requester in the possible negotiation of a bilateral agreement, if such course is warranted." (Id. at 35.) Thus the information is properly exempted from withholding under exemption (b)(3). See Judicial Watch, Inc., 650 F.Supp.2d at 32-33.

Additionally, the Cultural Property Implementation Act also prohibits disclosure of information submitted in confidence to the advisory committee. 19 U.S.C. §§ 2605(i)(l)-(2). Section 1 of this provision establishes that information "submitted in confidence by the private sector" to the Government or the advisory committee "shall not be disclosed" (except to specified individuals not at issue in this case), and Section 2 establishes that information "submitted in confidence" by the Government or the committee "shall not be disclosed."⁸ As these provisions establish information "shall not be disclosed," they are disclosure-prohibiting statutes. See Watson v. Dep't of Justice, 799 F.Supp. 193, 194 (D.D.C.1992). Thus, as long as the information is "submitted in confidence" either to or from the Government or the advisory committee, the information must be withheld pursuant to the statute and exemption (b)(3).

The State Department further points out that,...