### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA ANCIENT COIN COLLECTORS ) GUILD, 

### etal., ) Plaintiffs, ) v. ) Civil Case No. 07-2074 (RJL) ) 

### U.S. DEPARTMENT OF STATE, ) ) 

### DekndanL ) )

## "TtMEMORANDUM OPINION (November

### 2.0,2009) [#16; #19] The plaintiffs, Ancient Coin Collectors Guild, International Association of Professional Numismatists, and Professional Numismatists Guild, Inc., filed this suit against the U.S. Department ofState (the "Government" or "State Departmenf') in relation to a Freedom ofInformation 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. Forthe following reasons, this Court agrees and GRANTS the State Department's summary judgmentmotion and DENIES the plaintiffs' cross-motion for summaryjudgment. 

### BACKGROUND Theplaintiffs made eight FOIA requests between July 

### 30, 2004, and October 

### 11, 2007, (see Compi. [Dkt. 

### #1]**~~** 

### 22-58), seven ofwhichremain at issue in this case. l 

### They

'OnMay 22, 2008, the plaintiffs informed the State Department it no longer contestedthe Government's use ofexemption (b)(6). (Def.'s Mot. Ex. C [Dkt. #16-5] at 2.) The Complaint describes the following requests relevant to this litigation:

### seek information from a component ofthe State Department-theBureau ofEducational 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 ofMot. for Summ. 1. 

### [Dkt. #16] ("Def.'s Mot.") at 2.) In response to the plaintiffs' FOIA requests, the Government conducted multiple comprehensive searches, (Decl. ofMargaret P. Grafeld, Ex. A [Dkt. #16-2] ("Grafeld Decl.") at 14-26), which resulted in 128 responsive documents. (Supp. GrafeldDecl. [Dkt. #18-2]**~2.)** 

### The Governmentreleased most ofthe information-seventy documents in full and thirty-nine documents in part-andwithheld nineteen documents in full. (Id.) 

### OnNovember 15,2007, the plaintiffs filed suit in this Courtto compel the Government to produce the withheld information.

Count I: four reports from the advisory committee Count II: a copy ofthe Chinese Request for import restrictions Count III: communications concerning China's request and "documents evidencing the inclusion ofcoins on the list of'proposedrestricted items Count IV: documents evidencing the potential inclusion ofcoins onthe list ofitems subjectto importrestrictions with Italy Count VII: a cultural property report and documents evidencing any dissents that led to extending importrestrictions relating to Cyprus Count VIII: a copy ofany request made by Cyprus for import restrictions CountIX: nine specific requests for communication and information relating to certain importrestrictions from Cyprus. (See CompI.**~~** 22-58.) 2ANALYSIS 

### The Court reviews summaryjudgmentmotions under FOIA de novo, requiring the Court to determine whetherthe agency has conducted an adequate search and whether the documents requested are exempt from disclosure under FOIA. 

### See Judicial Watch, Inc. v. 

### Us. Dep 't o/State, No. 08-1011, 2009 WL 2842881, *2 (D.D.C. Sept. 3,2009. A court "draw[s] alljustifiable inferences in the non-movant's favor," id. 

### (internal quotation omitted), and grants summaryjudgment in favor ofthe government when "'thepleadings, 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 entitledtojudgment as a matter oflaw,'" id. 

### (quoting Fed. R. Civ. P. 56(c)). Forthe following reasons, the Court grants summaryjudgment in favor ofthe Governmentbecause 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 "'reasonablycalculated to uncover all relevant documents.'" 

### Amuso v. 

### Us. Dep't

## 0/ Justice, 600 F. Supp. 2d 78,87 (D.D.C. 2009) (quoting 

### Valencia-Lucena v. 

### Us. 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]nthe absence ofcontrary evidence," affidavits and declarations are "sufficientto demonstrate

an agency's compliance with FOIA." Id. 

### Based on the Declaration ofMargaretP.

3

### Grafeld,2 

### which details extensively the databases searched, the staffthat conducted the searches, and the searchterms used, this Court finds the Government conducted a search reasonably calculatedto uncover all relevant documents. (See 

### Grafeld Decl. at 14-26.)3 

### 2. The Government Properly Withheld Information. 

### In withholding information, the Governmenthas invoked numerous FOIA exemptions, and the plaintiffs argue the Government improperly invoked each one.4 

### I disagree. The Government withheld informationprovidedby foreign government 2Margaret P. Grafeld is the Information and Privacy Coordinator and the Director ofthe State Department's Office ofInformation Programs and Services. (Grafeld Decl. at 1.) 3The plaintiffs raise many arguments challenging the adequacy ofthe Government's search, yet these arguments are all without merit. While the plaintiffs allege the Government failed to searchproperly the computer ofMaria Kouroupas, the Executive Director ofthe advisory committee, (Pl.s' Mem. in Support ofCross-Mot. for Summ. J. and Opp'nto Def.'s Mot. for Summ. J. [Dkt. #19-2] ("Pl.s' Cross-Mot.") at 6), the Grafeld Declaration explained thatthe Bureau's staffand executive director searched the emails and archived emails and also explained howthe search was performed, (Grafeld Decl. at 17-18). The plaintiffs also allege the search it conducted was inadequate because the Government did not disclose the search terms itused in a specific search for responsive diplomatic notes. (Pl.s' Cross-Mot. at 7.) However, the Government's mere failure to detail the searchterms used to obtainthe specific responsive documents, without more, does notrender this search inadequate. See Friends of Blackwater v. 

# u.s. Dep'tof Interior, 391 F. Supp. 2d 115, 120 (D.D.C. 2005) (suggesting that non-disclosure ofsearch terms alone may not be enoughto invalidate an otherwise adequate affidavit). The Grafeld Declaration specifically states thatthese searches "were performed by individuals employed within those organizations who are familiar" with the informationthe plaintiffs sought and that responsive documents were obtained. (Grafeld Decl. at 20.) Forthese reasons, the plaintiffs' complaints about the Government's search are without merit. Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) ("[I]n the absence ofcountervailing evidence or apparent inconsistency ofproof, affidavits that explain in reasonable detail the scope and method ofthe search conducted bythe agency will suffice to demonstrate compliance with the obligations imposed by the FOIA."). 4Unless specifically noted, the plaintiffs do not allege that the Government is withholding information without invoking a FOIA exemption. The plaintiffs challenge only whether the withheld information falls within the exemptions claimed. Thus, this opinion is organized onthe basis ofthe exemptions claimed, rather than the information withheld. 4

### 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)(I), which authorizes the withholding ofmatters classifiedby an Executive Order. 5 U.S.C. § 522(b)(1). Executive Order 12,958 provide that information is "Confidential" ifits release "reasonably could be expected to cause damage," Exec. OrderNo. 12,958,60 FR 19825 (1995), sec. 1.2(a)(4), "tothe national defense or foreign relations ofthe 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 ofconfidentiality, 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 Departmentthus 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 governmentproperly withheld information communicatedto the U.S. government on a confidential basis that wouldjeopardize

5The plaintiffs assert the information was not provided on a condition ofconfidentiality, noting that the information was exchanged as part ofan effort to seek a "concerted international response" to looting. (Pl.s' Cross-Mot. at 9 (quoting Article 9 ofthe 1970 UNESCO Convention).) However, merely because the United States is working with other countries to address commonproblems does not foreclose thattheir cooperation was premised on nondisclosure ofthe informationto the public. Furthermore, contrary to the plaintiffs' argument, the information does not lose its confidential classification merely because the State Department released a general, unclassified summary ofit. See Public Citizen v. Dep'tof State, 11 F.3d 198, 201 (D.C. Cir. 1993) ("The law ofthis circuit provides that an agency official does not waive FOIA exemption 1by publically discussing the general subject matter ofdocuments which are otherwise properly exempt from disclosure under that exemption."). 5"reciprocal confidentiality"); 

### Public Citizen v. 

### Dep'tof State, 276 F.3d 634, 644-45 (D.C. Cir. 2002).6 The Government also withheld information about closed advisory committee proceedings and information communicatedto and from the committee in confidence, invoking exemption (b)(3). (Def.'s Mot. at 7.) This exemptionprovides thatFOIA does

not apply to matters that are (1) "specifically exempted from disclosure by statute" ifthe

statute either (A) requires withholding or (B) establishes the criteria for withholding. 5 U.S.C. § 552(b)(3); 

### see also Judicial Watch, Inc., 2009 WL 2842881 at *2. Forthe following reasons, the Court determines, inthis matter offirst impression, thatthe provisions ofthe Cultural Property Implementation Act as discussedbelow is a disclosure-prohibiting statute in this case. The Convention on Cultural Property ImplementingAct establishes that information discussed in closed meetings ofthe Cultural PropertyAdvisory Committee shall not be disclosed underthe Federal Advisory Committee Act, which makes FOIA's standards applicable to advisory committees. 

### See Washington Research Project, Inc. v. 

### Dept'tof Health, Education and Welfare, 504 F.2d 238,248 n.15 (D.C. Cir. 1974) (noting

6The Government also withheld internal file numbers under FOIA exemption (b)(2), (Grafeld Decl. at 32), which allows for withholding ofmatters "related solely to the internal personnel rules and practices ofan agency," 5U.S.C. § 552(b)(2). As the Grafeld Declaration explains, contrary to the plaintiffs' argument, the withheld information consists ofinternal file numbers, (Grafeld Decl. at 32), which are properly withheld under exemption (b)(2), Williams v. Drug EnforcementAdministration, No. 85-6154, 851 F.2d 1502, *1 (Table) (D.C. Cir. May 18, 1988) (finding the government properly withheld codes from internal classificationpractices under exemption (b)(2)), 6

### that the Federal Advisory CommitteeAct "makes the FOIA standards applicable to advisory committees' reports" in limited circumstances); 

### see also Forsham v. 

### Califano, 587 F.2d 1128, 1135-36 (D.D.C. 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 

### § lOeb)), applies to the Cultural PropertyAdvisory Committee, "except that the requirements of

... [a specific provision ofthe Federal Advisory Committee Act] relating to open meetings, public notice, public participation, and public availability ofdocuments

... shall not apply to the [c]ommittee" if"the President orhis designee" determines that disclosure "would compromise the Government's negotiating objectives orbargainingpositions on the negotiations ofany 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 ofthe Federal Advisory Committee Act that makes FOIA's provisions

7In full, this provision ofthe Convention on Cultural Property states: (h) Federal Advisory Committee Act The provisions of the Federal Advisory Committee Act (Public Law 92-463; 5 U.S.C.A. Appendix I) shall apply to the Committee exceptthat the requirements of subsections (a) and (b) ofsection 10 and section 11 ofsuch Act (relating to open meetings, public notice, public participation, and public availability ofdocuments) shall not apply to the Committee, whenever andtothe extent itis determinedbythe Presidentorhis designee thatthe disclosure ofmatters involved inthe Committee's proceedings would compromise the Government's negotiating objectives or bargainingpositionsonthenegotiations ofanyagreementauthorizedbythis chapter. 19 U.S.C. § 2605(h). 7

### applicable to the advisory committee. Thus, 19 U.S.C. § 2605(h) is a disclosureprohibiting statute. As such, the information is properly withheld ifit falls within the statute's established criteria for withholding. See 5 U.S.C. § 552(b)(3). Specifically, information is to be withheld ifthe President orhis designee determines that disclosure would compromise the government's negotiating objectives or bargainingpositions. 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 ofthe information here "would compromise the U.S. Government's negotiation objectives and/or bargainingposition on the negotiation ofagreements." (See Grafeld Decl. 35-36.) The Grafeld Declaration notes that the information mustbe withheld "so as notto interfere with the multi-step decision-making process and the ability to workwith the foreign governmentrequester in the possible negotiation ofa bilateral agreement, ifsuch

course is warranted." (ld. at 35.) Thus the information is properly exempted from withholding under exemption (b)(3). See Judicial Watch, Inc., 2009 WL 2842881 at *2. Additionally, the Cultural Property Implementation Act also prohibits disclosure of information submitted in confidence to the advisory committee. 19 U.S.C. §§ 2605(i)(1 )-(2). Section 1ofthis provision establishes that information "submitted in confidence by the private sector" to the Government orthe 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

8

### committee "shall not be disclosed."g 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 "submittedin confidence" eitherto or from the Government orthe advisory committee, the information

mustbe withheldpursuantto the statute and exemption (b)(3). The State Department furtherpoints out that, contrary to the plaintiffs' assertion, the information in question here-certain emails sentby members ofthe private sector in connection with the Act and certain materials from the Bureau submitted to the committee-wasprovided in confidence. (GrafeldDecl. at 38, 54, 60, 72.) Specifically, the Grafeld Declaration states that the information was provided in confidence to either the State Department staffor to the advisory committee, often by archaeologists, curators, collectors, dealers, and auction house specialists, with the expectation ofconfidence. (Id.) 

### Such confidence was necessary in order for individuals to disclose information about the quantity, quality, and objects oflooting. (Id.). 

### The Governmentthus properly withheld the information under exemption (b)(3). See 

### 19 U.S.c. §§ 2605(i)(l)-(2). The Government also withheld information and reports regarding advisory committee discussions because the information fell within exemption (b)(5), which

8Section 2 provides that information may be disclosed in accordance withrules issued by the Director ofthe United States Information Agency after consultation with the Committee. 19 U.S.C. § 2605(i)(2). However, as no rules have been issued here, the exception is not applicable.

9includes the deliberative process privilege. 5 U.S.C. 

### § 552(b)(5).9 To withhold a responsive documentunderthe deliberative process privilege, the agency must demonstrate that it is "bothpredecisional and deliberative." 

### Mapother v. 

### Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Becausethe advisory committeeprovidednonbinding, pre-decisional, deliberative recommendations to the State Departmentto use in determining importrestrictions, (Grafeld Decl. at47-56),\0 the information is properly beingwithheld under exemption (b)(5). The Government also withheldportions oftwo documents under exemption (b)(7)(C), which exempts information complied for law enforcementpurposes that "could reasonably be expectedto constitute an unwarranted invasion ofpersonal privacy." 5

9Additionally, under this exemption, the Government properly withheld information on the basis that it constitutes attorney-clientprivilege. Specifically, the Government properly withheld an email from employees ofthe Bureauto an employee in the State Department's Office ofLegal Adviser seeking legal approval ofa draft document and portions ofan action memorandum containing summaries oflegal advice by the Office. (See Grafeld Decl. at 63-{)4, 70-71); see also VoteHemp, Inc. v. DrugEnforcementAdmin., 567 F. Supp. 2d 1,22-23 (D.D.C. 2004). IOThe plaintiffs also assert this material cannot be withheld because the chair ofthe cultural property committee at the time has determined many ofthese decisions were made, stated that the release ofthe informationhere would result inthe committee making better recommendations. (Pl.s' Cross-Mot. at 20-21.) However, the individual chair'spersonal opinion does not alter the State Department's proper invocation ofexemption (b)(5). Additionally, as the Grafeld Declaration explains, although "atfirst blush" some material may appear factual and thus not properly withheld, the State Departmenthas withheld factual information "where its very inclusion in the report represents the deliberative distillation ofthe informationprovided to the committee in to a selection offacts that compose the reasoning ofthe committee in reaching its recommendation." (See Grafeld Decl. 41--42.) Thus, withholding was proper. See Washington ResearchProject, Inc. v. Dep'tof Health, Education, and Welfare, 504 F.2d 238,250-51 (D.C. Cir. 1974) (noting that facts couldbe withheld because "thejudgmental element arises through the necessity to select and emphasize certain facts at the expense of others"). 10

### U.S.C. 

### § 552(b)(7)(C). Specifically, the State Departmentwithheld names, email addresses, and telephone and fax numbers oflow-level employees included in a chain of emails created as part oflaw enforcement efforts to implement and enforce cultural propertyrestrictions. I I 

### (Def.'s Mot. at 9.) Given the individuals' strongprivacy interest in their identifying information and the weakpublic interest in identifying information of low-level employees, the Court concludes that the State Departmentproperly withheld the identifying information. See Lesar

### v. Us. Dep 't of Justice, 636 F.2d 472,487 (D.C. Cir. 1980); (see also Grafeld Decl. 42-44). CONCLUSION 

### For all ofthe above reasons the State Departmenthas establishedthat it conducted

a reasonable search, that it properly withheld the disputed information underFOIA exemptions, and that it complied with its obligationto segregate the exempted material

··On a similarnote, the Government also withheld names and identifying personal information of State Department employees, Customs and BorderPatrol employees, and private individuals who provided information to the committee in their personal capacity. The Government invokes exemption (b)(6), which allows for withholding of"personnel and medical files and similar files the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy." 5 U.S.C. § 552(6). The Grafeld Declaration indicates the State Department balancedthe public interest in disclosure ofthe identifYing personal information with the extent ofthe invasion of privacy, and determined that, in light ofinstances ofcareer State Department employees being "denounced in harsh personal accusations in public fora," the privacy interest clearly outweighs the public interest in disclosure. (Grafeld Dec!. at 43-44.) This Court finds the Government properly withheld such informationunder exemption (b)(6). See Judicial Watch, Inc. v. Food andDrugAdmin., 449 F.3d 141, 152-53 (D.C. Cir. 2006) (balancing the interests and determining the governmentproperly withheld names and addresses under exemption (b)(6)). 11

### from non-exempted material. 12 

### The Courtwill therefore GRANTthe Government's Motion for Summary Judgment and DENY the plaintiffs' Cross-Motion for Summary Judgment. An Order consistent with this decision is attached.

United States DIstrictJudge

12P1aintiffs allege the Government failed to comply with its obligationto segregate and disclose all non-exempt material, unless the material is "inextricably intertwined with exemptportions." Judicial Watch, Inc., 2009 WL 2842881 at *3 (internal quotation omitted). However, the Grafeld Declaration establishes that "[a]ll ofthe documents addressed herein have been carefully reviewed for reasonable segregation ofnon-exempt information, and [Grafeld] ha[s] determined that no segregation ofmeaningful information in the withheld documents canbe made without disclosing information warranting protectionunder the law." (Grafeld Decl. at 79.) There is thus no basis for the plaintiffs' claim that the Government failed to comply with its segregability obligations. 12