ACCG FOIA Appeal

Case Summary

http://www.ifar.org/case_summary.php?docid=1317666903
Ancient Coin Collectors Guild v. State Department Ancient Coin Collectors Guild v. U.S. Department of State, 641 F.3D 504 (D.C. Cir. 2011), reversing and remanding, Ancient Coin Collectors Guild v. U.S. Department of State, 673 F. Supp. 2d 1 (D.D.C. 2009).

Précis
On numerous occasions between 2004 and 2007, the Ancient Coin Collectors Guild (ACCG) requested, under the Freedom of Information Act (FOIA), that the Cultural Property Advisory Committee (housed in the U.S. State Department) release documents related to the Committee’s deliberations that led to restrictions on the importation into the United States of certain types of ancient coins from Cyprus, China, and Italy. After the State Department refused to release many of the requested documents, the ACCG brought suit to compel their release.

Facts
The Cultural Property Advisory Committee (CPAC), appointed by the President and housed in the State Department, reviews requests by foreign governments to the U.S. to restrict the importation of cultural objects at risk of pillage. If the Committee’s recommendation is approved by the State Department, the U.S. will sign a bilateral agreement known as a Memorandum of Understanding (MOU) with the requesting country indicating what types of objects will be restricted from importation.

Between 2004 and 2007, the Ancient Coin Collectors Guild submitted eight requests to the Cultural Property Advisory Committee seeking the release of documents related to the Committee’s deliberations in the lead up to the U.S. signing MOUs with Cyprus (July 2007), China (January 2009), and Italy (January 2011). Each MOU included coins from these countries as a category of items prohibited from importation into the United States. The State Department responded by releasing 70 documents in full and an additional 39 that were partially redacted; but 19 relevant documents were withheld entirely.

Court History
In November 2007, the ACCG filed suit in federal district court in Washington, DC against the State Department as parent agency of the Cultural Property Advisory Committee, seeking to compel the release of any relevant documents in the Committee’s possession. The ACCG sought the documents in the hopes that they would support its allegation that coins were not included in the MOUs at the behest of the foreign governments, nor even at the recommendation of the Cultural Property Advisory Committee, but rather solely through the interference of certain State Department employees, acting of their own accord. The ACCG’s allegation was bolstered by the signed affidavit of Jay Kislak, Chairman of the Committee from 2003 to 2008 (during the deliberations on Cyprus and China), asserting that the Committee had never recommended that coins be included in the MOUs. In fact, he resigned his position in protest after the signing of the U.S.-Cyprus agreement.

In its response, the State Department held that its withholding of the requested documents was permissible under several exceptions to FOIA, including national security/ foreign policy, confidentiality, invasion of privacy, and attorney-client privilege. The State Department further held that some of the relevant files, particularly the e-mails of certain State Department employees, had been deleted or could not be found.

In November 2009, after both parties received several extensions to their filing deadlines, the District Court granted summary judgment for the State Department, ruling that all of the documents at issue were legitimately withheld under one (or more) of the FOIA exceptions.

The ACCG appealed the ruling to the Court of Appeals for the DC Circuit. In April 2011, the Appeals Court reversed and remanded two aspects of the lower court’s ruling. The Appeals Court held that in order to withhold documents purported to be lost or deleted, the State Department was required to inform the ACCG of the steps the Department had taken to search for these documents. Specifically, the State Department would be required to either conduct a thorough search of the relevant employees’ computers and archived e-mails or explain why it would be unable to perform these searches.

Among the documents the State Department had refused to release were six specific e-mails between a State Department employee and an archaeologist in the lead up to the United States’ MOU with Cyprus, on the grounds that they were confidential communications. The Court ruled, however, that in order to withhold the e-mails on this ground, the State Department must present evidence, on remand, demonstrating that the e-mails were intended to be confidential.

Final Outcome
As of October 2011, the case is still pending. For a related case involving MOU restrictions on the importation of coins into the United States, see: Ancient Coin Collectors Guild v. U.S. Customs and Border Protection.

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COMMENTARY
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Here is an objective and very well written summary of the status of this litigation and the issues involved. Although it does not in any way endorse the point of view of the ACCG and allied pro-collecting organizations, I nevertheless believe that it still presents a very fair, evenhanded and overall perhaps as good an objective summary of the case and the issues involved as could reasonably be expected today.

We shall learn more about the archaeocentric interpretation of the meaning of terms such as fairness and objectivity, when archaeobloggers have been heard from. To the extent than I can individually be regarded as speaking for the pro-collecting perspective, I would observe that a fair and objective approach is all we have ever asked for.

It pains me to observe that a fair and objective approach is absolutely the last thing any knowledgeable observer would expect from the present Cultural Heritage Center bureaucracy. That gang of rabidly anticollecting ideologues, led for three decades by "Stealth Fighter" Maria Papageorge Kouroupas, must go before anything resembling fairness and objectivity in US State Department proceedings can be restored.