Guild v. United States Dep't of State

• Decision Date: 15 April 2011
• Docket Number: No. 09–5439.,09–5439.
• Citation: 395 U.S.App.D.C. 138,641 F.3d 504
• Parties: ANCIENT COIN COLLECTORS GUILD, et al., Appellantsv.UNITED STATES DEPARTMENT OF STATE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

641 F.3d 504

395 U.S.App.D.C. 138

ANCIENT COIN COLLECTORS GUILD, et al., Appellants

v.UNITED STATES DEPARTMENT OF STATE, Appellee.

No. 09–5439.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 24, 2011.Decided April 15, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:07–cv–02074).Scott A. Hodes argued the cause and filed the briefs for appellants.Brian P. Hudak, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., and R. Craig Lawrence, Assistant U.S. Attorney.Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.Opinion for the Court filed by Senior Circuit Judge WILLIAMS.WILLIAMS, Senior Circuit Judge:

The Convention on Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2600–13, allows the President to enter into agreements to restrict importation of cultural artifacts pursuant to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. 823 U.N.T.S. 231 (1972). The Cultural Property Advisory Committee (“CPAC”) is a federal advisory committee (within the meaning of the Federal Advisory Committee Act (“FACA”), Public Law 92–463, 5 U.S.C.App. 2). It advises the State Department's Undersecretary for Educational and Cultural Affairs on import restriction requests from foreign governments. 19 U.S.C. § 2605. CPAC has no final authority to approve or deny import restrictions. But when the Department's Bureau of Educational and Cultural Affairs enters into a Memorandum of Understanding with a foreign country on import restrictions, it must file a report with Congress that indicates how and why the import restrictions differ from CPAC's recommendations. 19 U.S.C. § 2602(g)(2).

This case concerns eight requests filed under the Freedom of Information Act (“FOIA”) by the Ancient Coin Collectors Guild, the International Association of Professional Numismatists, and the Professional Numismatists Guild, Inc. (collectively, the “Guilds”) seeking records from the State Department relating to import restrictions imposed on cultural artifacts from China, Italy, and Cyprus. In response, State released 70 documents in full and 39 documents in part and withheld 19 documents entirely under various FOIA exemptions. Supplemental Declaration of Margaret P. Grafeld, Joint Appendix (“J.A.”) 229. The Guilds filed suit challenging the withholding of certain of these documents pursuant to FOIA Exemptions 1, 3, and 5 (as well as certain other exemptions not contested in this appeal), and the adequacy of State's search in response to the FOIA requests. See 5 U.S.C. § 552(b)(1), (3), (5). The district court granted summary judgment in favor of State on all claims. Ancient Coin Collectors Guild v. U.S. Dep't of State, 673 F.Supp.2d 1 (D.D.C.2009).

We find that State's invocation of Exemptions 1 and 5 was proper, as was part of its withholding under Exemption 3, but we reverse and remand the district court's dismissal of the Guilds' claims as to one document withheld under Exemption 3 and (in part) as to the adequacy of the search.

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An agency withholding responsive documents from a FOIA request bears the burden of proving the applicability of the claimed exemptions. American Civil Liberties Union v. U.S. Dept. of Defense, 628 F.3d 612, 619 (D.C.Cir.2011). Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail. Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009). We review the district court's grant of summary judgment de novo. Id.

The Guilds challenge the withholding under Exemption 1 of certain information in CPAC committee reports that had been provided by the government of Cyprus and of a request by the People's Republic of China for American import restrictions. Exemption 1 applies to materials that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). State contends that the material in question was properly classified under § 1.4(b) of Executive Order No. 12,958, which permits classification of information provided by foreign governments, and under § 1.4(d) of the same order, which permits classification of material related to foreign relations and foreign activities of the United States. Exec. Order No. 12,958, 3 C.F.R. 333 (1996).

The Guilds say that the Cypriot material was not properly classified because the government of Cyprus discussed the material with a private organization, the Cyprus American Archeological Research Institute (“CAARI”). As evidence, the Guilds point only to quotations from an interview with CAARI's President, posted on CAARI's website, saying that “CAARI has been in the forefront of the successful effort to renew the Memorandum of Understanding between Cyprus and the USA restricting the import of Cypriot antiquities into the United States” and that CAARI was “instrumental” in that renewal. See Cyprus American Archaeological Research Institute, CAARI at 30, http:// www. caari. org/ CAARIat 30. htm. Though an agency generally bears the initial burden of showing that a FOIA exemption applies, the Guilds can prevail on their prior-disclosure theory only by carrying the burden of identifying specific information in the public domain duplicative of the withheld information. Public Citizen v. Dep't of State, 276 F.3d 634, 645 (D.C.Cir.2002) ( Public Citizen II ); Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C.Cir.1993) ( Public Citizen I ). The Guilds' evidence falls way short. The website provides no indication that State or the government of Cyprus shared any of the information withheld by State with CAARI or any other private party. Even if it had disclosed such information, a limited disclosure to a small number of individuals might not be enough to render classification inappropriate. See Carlisle Tire & Rubber Co. v. U.S. Customs Serv., 663 F.2d 210, 219 (D.C.Cir.1980). But because the Guilds have not shown disclosure of any withheld information, we need not worry about the implications of “limited” disclosure.

As to the Chinese application for import restrictions, the Guilds again point to a supposed prior disclosure, in this case State's publication of a summary of the application on its website. But publishing a relatively brief (in this instance, 11–page) summary of a much longer (160–page) report does not, in itself, make classification of material in the longer report inappropriate. Declaration of Margaret P. Grafeld (the “Grafeld Declaration”) at 57, J.A. 90; Public Summary Request of the People's Republic of China to the Government of the United States of America under Article 9 of the 1970 UNESCO Convention, J.A. 317–27. Plaintiffs' proposed rule, treating publication of a summary as a waiver of the confidentiality of an entire document, would give government agencies a quite perverse incentive. And as a simple factual matter, publication of part of a document does not put the rest into the public domain. See Public Citizen II, 276 F.3d at 645; Public Citizen I, 11 F.3d at 201–02. We have no reason to doubt State's contention that the full application contains information on looting that is properly classified. Grafeld Declaration at 57–58, J.A. 90–91. See Public Citizen II, 276 F.3d at 645; Public Citizen I, 11 F.3d at 201–02. We affirm the district court's ruling with respect to Exemption 1.

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Exemption 3 applies to matters “specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). See generally C.I.A. v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). State withheld documents under two sections of the CPIA that it believed Exemption 3 encompassed—19 U.S.C. §§ 2605(h), 2605(i)(1). The Guilds argue that § 2605(h) does not meet Exemption 3's requirements, and that in any event neither of the two sections employed by State justifies the specific withholding done here.

Section 2605(h) states that FACA's provisions should generally apply to the CPAC. But it also provides that the requirements of FACA's §§ 10(a), 10(b), and 11 shall not apply “whenever and to the extent it is determined by the President or his designee that the disclosure of matters involved in the Committee's proceedings would compromise the Government's negotiating objectives or bargaining positions on the negotiations of any agreement authorized by this chapter.” 19 U.S.C. § 2605(h). Sections 10(a), 10(b), and 11 require that committee meetings be open and that committee records, reports, transcripts and other materials be made available to the public. 5 U.S.C.App. 2, §§ 10, 11. Because it authorizes the President or his designee to close CPAC meetings otherwise required to be open, exempts materials “involved in” such proceedings from the open-meetings provisions of FACA, and provides “particular criteria” for deciding on such closures (or at least as “particular” as one can expect criteria to be in the realm of foreign affairs), § 2605(h) qualifies as an Exemption 3 withholding statute.

The Guilds argue that even if § 2605(h) is a withholding statute under Exemption 3, the resulting non-disclosure should be understood to apply only until negotiations on the agreement at issue have ended. But the language of § 2605(h) invites no such temporal slicing. Nor does its sense support such a limit. While it may be especially obvious that disclosure in advance of agreement may stifle the negotiating process, the...