United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 24, 2011 Decided April 15, 2011
No. 09-5439
ANCIENT COIN COLLECTORS GUILD, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF STATE,
APPELLEE
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.
2
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.
3
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.
* * *
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
4
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/CAARIat30.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.
5
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.
* * *
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
(1985). State withheld documents under two sections of the
CPIA that it believed Exemption 3 encompassed—19 U.S.C.
§§ 2605(h), 2506(i)(1). The Guilds argue that § 2605(h) does
6
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 threat of imminent disclosure—ripening just at
the moment of agreement—would surely inhibit the candor
that § 2506(h) is meant to foster. Given that probability, it
would make no sense to condition post-agreement
7
withholding on a new determination by the relevant designee
(in this case the Assistant Secretary of the Bureau of
Educational and Cultural Affairs) that the material should
remain unavailable.
The Guilds also fail in their contention that State’s
specific withholdings did not meet § 2605(h)’s criteria. They
suggest that because State has not supplied for the record the
determination by the President or his designee required by
§ 2605(h) that “the disclosure of matters involved in the
Committee’s proceedings would compromise the
Government’s negotiating objectives or bargaining positions,”
State may not invoke that section. On their theory, the
Grafeld Declaration was insufficient because Grafeld is
simply the Information and Privacy Coordinator and the
Director of the State Department’s Office of Information
Programs and Services, and thus in their view not the proper
official to make such a determination. This argument
misunderstands the standard. The decision to close a CPAC
meeting itself required a determination by the President or his
designee under § 2605(h). The Grafeld Declaration is not
itself a determination that the criteria of § 2605(h) were met—
it merely notes that the proper official made such a
determination.
Finally, the Guilds claim that State failed to establish that
the withheld documents met the criteria for withholding under
§ 2605(i)(1). That section prohibits disclosure (subject to
certain exemptions not at issue here) of any information
“submitted in confidence by the private sector to officers or
employees of the United States or to the Committee in
connection with the responsibilities of the Committee.” 19
U.S.C. § 2605(i)(1). The parties agree that (i)(1) is a
withholding statute for the purposes of Exemption 3. They
also assume, as will we, that the proper standard for
confidentiality is the same as that for FOIA Exemption 7(D),
8
as established in U.S. Dep’t of Justice v. Landano, 508 U.S.
165 (1993). See Oral Arg. Recording at 19:29-25:01. Under
Landano, the government is not entitled to a blanket
presumption that investigatory sources speak under a
commitment to confidentiality. Landano, 508 U.S. at 178. A
variety of evidence might be presented to meet the
government’s burden: “notations on the face of a withheld
document, the personal knowledge of an official familiar with
the source, a statement by the source, or contemporaneous
documents discussing practices or policies for dealing with
the source or similarly situated sources.” Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998). But a
declaration simply asserting that a source received express
assurances of confidentiality “without providing any basis for
the declarant’s knowledge of this alleged fact” does not do so.
Id. at 34-35.
It appears from the Grafeld Declaration that the
government relies solely on § 2605(i)(1) with respect to only
one specific withholding. Grafeld Declaration at 60, J.A. 93.
This withholding involves various redactions from six
separate emails exchanged between the late Danielle Parks, a
professor of archeology who did field work in Cyprus, and
Andrew Cohen, an employee of the Bureau of Education and
Cultural Affairs. To justify their withholding, Ms. Grafeld
said, “These emails contain some information that was
provided in confidence by Danielle Parks, an individual in the
private sector, to a staff member of ECA’s Cultural Heritage
Center in connection with the then-upcoming Committee
meetings regarding potential extension of the bilateral cultural
property agreement” with the government of Cyprus. Grafeld
Declaration at 60, J.A. 93. The declaration gives no further
indication of how the declarant knows that Parks provided
information in confidence. It appears, therefore, to be only a
“bald assertion that express assurances were given,” which we
have previously found insufficient to justify withholding.
9
Billington v. U.S. Dep’t of Justice, 233 F.3d 581, 584 (D.C.
Cir. 2000). We note that there are hints of confidentiality on
the face of the non-redacted portions of the emails (though it’s
not immediately clear whether the hints support an inference
that Parks as well as Cohen expected their exchange to remain
confidential). As in Billington, where the record provides
potential support for the district court’s finding of
confidentiality but the parties have not explicitly addressed
that potential, we reverse and remand to the district court for a
focus on those hints.1 Id. at 685-86. On remand, State may
provide additional reasons for its belief that Parks provided
information in confidence. But its explanation in the record
before us is inadequate.
* * *
Exemption 5 exempts “inter-agency or intra-agency
memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). It protects “materials that are both
predecisional and deliberative.” Mapother v. Dep’t of Justice,
3 F.3d 1533, 1537 (D.C. Cir. 1993) (citing Wolfe v. Dep’t. of
Health & Human Services, 839 F.2d 768, 773 (D.C. Cir.
1988) (en banc)). The Guilds challenge the withholding of
parts of CPAC reports under Exemption 5. They argue first
that it is inapplicable to CPAC recommendations contained in
the reports because CPAC reports are presumptively public
under CPIA. They note that 19 U.S.C. § 2605(h) makes
CPAC subject to the provisions of FACA except where, as
discussed above, the President or his designee finds that the
1
If we are mistaken in believing the Grafeld Declaration to say
that the Parks emails are the only items withheld solely under
§ 2506(i)(1), of course this remand would encompass such
additional items.
10
open meetings or open records provisions of FACA would
compromise the government’s negotiating objectives or
bargaining position.
But § 10(b) of FACA states that “[s]ubject to § 552 of
title 5, United States Code [FOIA], the records, reports,
transcripts, minutes, appendixes, working papers, drafts,
studies, agenda, or other documents which were made
available to or prepared for or by each advisory committee
shall be available for public inspection and copying at a single
location . . . .” 5 U.S.C. App. 2, § 10(b) (emphasis added).
Rather than preempting the FOIA exemptions, the relevant
portion of FACA explicitly incorporates FOIA into the
standard for public disclosure of committee reports,
presumably with its exemptions intact.
The fact that CPAC reports must be provided to Congress
under 19 U.S.C. § 2605(f)(6) does not (contrary to the Guilds’
suggestion) imply a waiver of later invocation of such
exemptions. Rather, the statute explicitly makes disclosure to
Congress an exception to the rule that information “submitted
in confidence by the private sector . . . shall not be disclosed
to any person . . . .” 19 U.S.C. § 2605(i)(1)(B). Therefore,
CPAC reports are properly withheld under Exemption 5
insofar as they are “inter-agency or intra-agency
memorandums or letters” that are deliberative and pre-
decisional. 5 U.S.C. § 552(b)(5).
An issue unraised by plaintiffs, whether CPAC is an
agency for the purposes of Exemption 5, might complicate the
exemption’s application. As plaintiffs appear to share State’s
assumption that the documents involved here qualify as inter-
agency or intra-agency memoranda under Exemption 5 (and
would therefore be exempt if they are pre-decisional and
deliberative), we will assume without deciding that they are
such memoranda.
11
Pace the Guilds, the recommendations are deliberative
since they “make[] recommendations or express[] opinions on
legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136,
1143-44 (D.C. Cir. 1975). Advisory committees such as
CPAC have no authority to set final agency policy. See 5
U.S.C. App. 2, § 9(b). The President has delegated to the
State Department authority to enter into agreements on import
restrictions under 19 U.S.C. § 2602(a)(2). Exec. Order No.
12,555 § 2, 3 C.F.R. 212 (1986). And CPAC
recommendations are pre-decisional because they were
created “[a]ntecedent to the adoption of an agency policy.”
Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir.
1978) (en banc).
The Guilds’ claim that State improperly withheld factual
summaries contained in CPAC reports is also without merit.
Purely factual material usually cannot be withheld under
Exemption 5 unless it reflects an “exercise of discretion and
judgment calls.” Mapother, 3 F.3d at 1539. Thus the
legitimacy of withholding does not turn on whether the
material is purely factual in nature or whether it is already in
the public domain, but rather on whether the selection or
organization of facts is part of an agency’s deliberative
process. Montrose Chemical Corp. of Cal. v. Train, 491 F.2d
63, 71 (D.C. Cir. 1974). For example, in Mapother we upheld
non-disclosure under Exemption 5 of “factual material . . .
assembled through an exercise of judgment in extracting
pertinent material from a vast number of documents for the
benefit of an official called upon to take discretionary action.”
Mapother, 3 F.3d at 1539.
The material sought by the Guilds falls squarely within
the category of factual material protected under Mapother and
Montrose. The factual summaries contained in the CPAC
reports “were culled by the Committee from the much larger
universe of facts presented to it” and reflect an “exercise of
12
judgment as to what issues are most relevant to the pre-
decisional findings and recommendations.” Grafeld
Declaration at 55, J.A. 88. For example, they include lists of
events selected to show whether a given type of item has been
pillaged. Grafeld Declaration at 42, J.A. 75. The factual
summaries therefore reflect CPAC’s pre-decisional
deliberative process and are exempt under Exemption 5.
* * *
The Guilds also challenge the adequacy of State’s search
for records in response to their FOIA requests. They question
why State found only a few emails from Maria Kouroupas, the
Executive Director of CPAC. And they argue that State did
not sufficiently explain its search methodology or why it
failed to search email archives for responsive documents.
An agency is required to perform more than a perfunctory
search in response to a FOIA request. It fulfills its obligations
under FOIA “if it can demonstrate beyond material doubt that
its search was ‘reasonably calculated to uncover all relevant
documents.’” Valencia-Lucena v. United States Coast Guard,
180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of
State, 897 F.2d 540, 542 (D.C. Cir. 1990)). At summary
judgment, a court “may rely on ‘[a] reasonably detailed
affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.’”
Id. at 326 (quoting Oglesby v. United States Dep’t of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
Our cases don’t support the Guilds’ first contention—that
State’s search was inadequate because it turned up only a few
emails from CPAC’s Executive Director—even if the slim
yield may be intuitively unlikely. See J.A. 285-88. “[I]t is
13
long settled that the failure of an agency to turn up one
specific document in its search does not alone render a search
inadequate. Rather, the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003) (citations omitted). That State’s search turned up
only a few emails from Ms. Kouroupas is not enough to
render its search inadequate, even supposing that any
reasonable observer would find this result unexpected.
The Guilds’ second argument, that State failed to show
the adequacy of its search, because it didn’t address its
employees’ archived emails and backup tapes, has more merit.
The Grafeld Declaration indicates that staff members of the
Bureau of Educational and Cultural Affairs “searched their
emails as well as the archived emails of a former staff member
involved in some of the issues and of the shared email
account.” Grafeld Declaration at 17, J.A. 50. Nowhere does
State explain whether it possesses email archives for Bureau
employees other than the former staff member, whether there
are backup tapes containing staff member emails and, if so,
whether such backup tapes might contain emails no longer
preserved on staff members’ computers.
It may well be that searching additional emails archives
and backup tapes would be impossible, impractical, or futile.
See Stewart v. U.S. Dep’t of Interior, 554 F.3d 1236, 1243-44
(10th Cir. 2009) (noting that the data on the backup tapes in
question were “not organized for retrieval of individual
documents or files, but rather for purposes of disaster
recovery”). We also note that Ms. Grafeld states, after a 12-
page review of what State had searched, “There are no other
places that if searched would have a reasonable likelihood of
containing additional responsive material.” Grafeld
Declaration at 26, J.A. 59. Moreover, though the section of
14
the “Records Schedule” published on State’s website relating
to the Bureau of Educational and Cultural Affairs refers at
several locations to “backups,” none of these references
relates to the files of the Bureau’s Assistant Secretary or of
CPAC. U.S. Department of State Records Schedule Chapter
36: Bureau of Educational and Cultural Affairs,
http://www.state.gov/documents/organization/136723.pdf.
But given that the Guilds raised the issue of backup tapes
before the district court, we think this a gap that State needed
to fill in order to carry its burden as to the adequacy of its
search. Specifically, under the circumstances it is reasonable
to expect State to inform the court and plaintiffs whether
backup tapes of any potential relevance exist; if so whether
their responsive material is reasonably likely to add to that
already delivered; and, if these questions are answered
affirmatively, whether there is any practical obstacle to
searching them.
We therefore reverse the district court’s summary
judgment in favor of State on the adequacy of its search and
remand for further clarification about backups and about the
seeming gaps in State’s discussion of archived materials.
* * *
The judgment of the district court granting summary
judgment to State is therefore reversed as to the sufficiency of
State’s search for responsive emails (to the extent noted
above) and as to its withholding of parts of a document under
19 U.S.C. § 2605(i)(1), affirmed as to all other claims, and
remanded for proceedings not inconsistent with this opinion.
So ordered.