Ancient Coin Collectors Guild v. United States Department of State ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANCIENT COIN COLLECTORS )
GUILD, et al., )
)
Plaintiffs, )
) Civil Case No. 07-2074 (RJL)
v. )
)
U.S. DEPARTMENT OF STATE, )
)
Defendant. )
)
J-¢.,»
MEMORANDUM OPINION
(May §, 2012) [Dkt. #33]
The plaintiffs, Ancient Coin C0llectors Guild, International Association of
Professional Numisrnatists, and Professional Numismatists Guild, Inc. (together,
"plaintiffs"), filed suit against defendant, the U.S. Department of State (the "State
Departrnent" or "State"), in relation to Freedom of Inforrnation Act ("FOIA"), 5 U.S.C.
§ 552, requests. This Court granted State’s Motion for Summary Judgment ("Def.’s
Mot.") [Dkt. #16], denied the plaintiffs’ Cross-Motion for Summary Judgment [Dkt.
#19], and plaintiffs appealed to our Court of Appeals. The Circuit Court reversed, in
part, and remanded to this Court for further proceedings This matter is now before the
Court on defendant’s ReneWed Motion for Summary Judgment ("Def.’s Re. Mot.") [Dkt.
#33]. Upon consideration of the parties’ pleadings, relevant law, and the entire record
herein, the defendant’s motion is GRANTED.
BACKGROUND
The plaintiffs made eight FOIA requests between July 30, 2004 and October ll,
2007, see Compl. [Dkt. #1] 111 22-58, seeking information from the Bureau of
Educational and Cultural Affairs (the "Bureau")_a component of the State
Department_related to import restrictions on ancient coins from Cyprus, Italy, and
China, id. 1111 8, l5. In response to these requests, State conducted multiple searches, see
Declaration of Margaret P. Grafeldl ("Grafeld Decl.") [Dkt. #16-1], Ex. A1 to Def.’s
Mot. for Summ. J. ("Def.’s Mot."), at 14-26, and, of the 128 responsive documents
located, State released seventy documents in full, released thirty-nine documents in part,
and withheld nineteen documents in their entirety, Supplemental Declaration of Margaret
P. Grafeld ("Supp. Grafeld Decl.") [Dkt. #lS-l], Attach. to Def.’s Errata, 11 2. Only one
document, containing a series of e-mails, remains at issue in this case.z See Ancz'ent Coz``n
Collectors Guila' v. U.S. Dep’t ofState, 641 F.3d 504, 509 (D.C. Cir. 2011).
On appeal, our Circuit Court remanded this action for the Court to address the
sufficiency of State’s partial withholding of this one document pursuant to FOIA
Exemption 3(b) and the sufficiency of State’s search for responsive e-mails. See Ancient
l On October 12, 2011, Margaret P. Grafeld became the Deputy Assistant
Secretary for Global information Services at the State Department. Third Declaration of
Margaret P. Grafeld ("3d Grafeld Decl.") [Dkt. #33-1], Ex. to Def``.’s Re. Mot., 1 l. She
oversees the Department’s Office of Inforrnation Programs and Services_the office
responsible for processing FOIA requests. Id. At the time she made her first two
declarations, Ms. Grafeld was the information and Privacy Coordinator and the Director
of the State Department’s Office of Information Programs and Services. Grafeld Decl.
at l.
2 The Circuit Court affirmed this Court’s decision on the remainder of the
Govemment’s claimed exemptions See Ancz``ent Coin, 641 F._°>d at 509.
2
Coin, 641 F.3d at 509. F or the following reasons, the Court finds that State properly
withheld parts of`` the document in question and conducted an adequate search for
responsive e-mail records, and thus GRANTS State’s Renewed Motion for Summary
Judgment.
STANDARD OF REVIEW
"When assessing a motion for summary judgment under F()IA, the Court shall
determine the matter de novo." judicial Watch, Inc. v. U.S. Dep ’t of Homeland Sec., 598
F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment
shall be granted when the movant demonstrates "that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). In a FOIA action, the Court may award summary judgment based solely on
information provided in affidavits or declarations if they "describe the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith." MilitaryAudz``t Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations "are accorded a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and discoVerabi1ity of other
documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(citation and internal quotation marks omitted).
ANALYSIS
State argues that it appropriately withheld parts of a document under FOIA
Exemption 3(b) because there was an expectation of confidentiality between the
corresponding parties under 19 U.S.C. § 2605(i)(l). See Def.’s Re. Mot. at 6-9. State
also argues that it conducted an adequate search for responsive documents; that there is
no additional method of searching or information storage system that would likely lead to
information relevant to plaintiffs’ requests, see id. at 10-13; and that attempting to
conduct further searches of the existing information storage systems would place a
significant burden on its employees, see z``d. at 12-13. In response, plaintiffs allege that
State improperly withheld information under Exemption 3(b) because there was no
expectation of confidentiality between the corresponding parties, challenging the
evidence cited by State as conclusory and inadmissible hearsay. See Pls.’ Statement of
P. & A. in Supp. of Gpp’n to Def.’s Re. Mot. ("Pls.’ Opp’n) [Dkt. #34-1] at 2-5. Further,
plaintiffs allege that State’s search for responsive documents was inadequate because
State neglected to sufficiently address e-mail archives and backup tapes. See ia'. at 5-7.
Unfortunately for the plaintiffs, 1 agree with the State Department’s position.
I. The State Department’s Withh0lding Under Exemption 3(b)
Under Exemption 3(b), the State Department can withhold information
"specifically exempted from disclosure by statute" if the statute "requires that the matters
be withheld from the public in such a manner as to leave no discretion on the issue" or
"establishes particular criteria for withholding or refers to particular types of matters to
be withheld." 5 U.S.C. § 552(b)(3). Pursuant to Exemption 3(b), State invoked
4
19 U.S.C. § 2605(i)(l) as grounds for withholding the document at issue.3 Def.’s Re.
Mot. at 2. The parties agree that 19 U.S.C. § 2605(i)(l) is a withholding statute for the
purposes of FOIA Exemption 3(b) and that the proper standard for analyzing
confidentiality is the same as that for FOIA Exemption 7 (D). See Ancienl Coin, 641 F.Bd
at 51l; Def.’s Re. Mot. at 7; Pls.’ Opp’n at 2.
Under Exemption 7(D)4 case law, there is no "inherently implicit" guarantee of
confidentiality when a source communicates with the government. U.S. Dep ’t of Justz``ce
v. Landano, 508 U.S. 165, 174-75 (citation omitted). Instead, the court may consider a
number of factors to determine whether a source’s communication should be treated as
confidential, "including 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 Justz°ce, 164 F.3d 20, 34 (D.C.
Cir. 1998). A declaration that simply asserts that the source "received express assurances
of confidentiality without providing any basis for the declarant’s knowledge of this
alleged fact" is not enough for the government to prevail. Id. at 34-35.
3 The Convention on Cultural Property implementation Act, 19 U.S.C. §§ 2601, et
seq., establishes a "Cultural Property Advisory Committee" (the "advisory committee")
that makes recommendations to agencies if issues with import restrictions arise. Id.
§§ 2602(a), 2605(a), (f)(l)(C). "[I]nformation . . . submitted in confidence by the private
sector to officers or employees of the United States or to the [advisory] Committee in
connection with the responsibilities of the [advisory] Committee shall not be disc1osed."
19 U.S.C. § 2605(i)(l) The statute lists specific exceptions that are not at issue here.
4 Exemption 7(D) allows an agency to withhold "records or information . . . but
only to the extent that the production of such . . . records or information . . . could
reasonably be expected to disclose the identity of a confidential source." 5 U.S.C
§ 552(1>)(7)(13)-
At issue here are redactions from a series of e-mails exchanged in January and
February 2007 between a member of the private sector-the late Dr. Danielle Parks, an
archeology professor-and a Bureau employee-Dr. Andrew Cohen.S See Ancz'ent Coz'n,
641 F.3d at 512; Def.’s Re. Mot. at 7. This Court finds, based on the evidence provided
by State, that there was a demonstrated expectation of confidentiality between the parties
and that the redacted portions of the e-mails have been appropriately withheld under
Exemption 3(b).
Fz``rst, Dr. Parks specifically requested confidentiality.6 3d Grafeld Decl. 11 7.
Secona’, the e-mails demonstrate an expectation of confidentiality between the parties.7
in the e-mail from Dr. Cohen to Dr. Parks on January 30, 2007, Dr. Cohen requested that
she "[p]lease be discreet about our conversation." Ex. A to 3d Grafeld Decl. at 8. in her
response on January 31, 2007, Dr. Parks replied "of course, not a problem" and went on
5 There are no redactions in the emails dated February 2007. See Ex. A to 3d
Grafeld Decl. at 10.
6 According to the 3d Grafeld Declaration, Dr. Cohen recalled that, during a
January 18, 2007 phone call with Dr. Parks, he informed Dr. Parks that she may request
that her name and the infonnation she provided remain confidential, and that Dr. Parks
requested such confidentiality. 3d Grafeld Decl. 1[ 7. Plaintiffs claim that these
statements are inadmissible hearsay. See Pls.’ Opp’n at 3-4. Even if plaintiffs’ concerns
have merit, there are more than enough "hints of confidentiality" to satisfy Landano’s
confidentiality threshold. See Ancz'ent Coz'n, 641 F.3d at 512.
7 Although the plaintiffs do not raise this point, the fact that the e-mails
establishing an expectation of confidentiality were exchanged after some of the redacted
communications does not alter the Court’s reasoning. information provided by a source
can be deemed confidential if there has been an "express assurance of confidentiality" or
if there exist "circumstances from which such an assurance could reasonably be
inferred." Landano, 508 U.S. at 172 (citation and intemal quotation marks omitted).
Here, the Court infers from these later conversations that there was an expectation of
privacy from the outset of Dr. Park and Dr. Cohen’s communications that is simply
affirmed by the language on the face of the document.
6
to explain that even though "a good dozen people" inquired about Dr. Cohen contacting
her, she "did not give any detail" of their conversation. Ia’. Fz``nally, the information Dr.
Parks provided was related to issues scheduled to be discussed at an upcoming advisory
committee meeting that was closed to the public, see 3d Grafeld Decl. 11 9; see also Ex. A
to 3d Grafeld Decl. at 1 (Dr. Cohen explaining he would like to discuss cultural property
issues between the United States and Cyprus "because the agreement is coming up for
extension soon"), and confidence is necessary in order for individuals to disclose reliable
information, see 3d Grafeld Decl. 11 3. These facts, coupled with the concrete textual
indications of confidentiality on the face of the e-mails, clearly establish an expectation
of confidentiality between the parties. See Campbell, 164 F.3d at 34.
Plaintiffs’ claim that the statements in the Grafeld Declarations are too conclusory
to support an expectation of confidentiality also fails. State provides adequate detail in
its declaration to support its argument that both Dr. Parks and Dr. Cohen had an
expectation of confidentiality in their conversations. Thus, because State has provided
more thanjust "bald assertion[s] that express assurances [of confidentiality] were given,"
Ancient Coin, 641 F.3d at 512 (quoting Billz``ngton v. U.S. Dep’t ofJustz‘ce, 233 F.3d 581,
584 (D.C. Cir. 2000)), the Court finds that State properly withheld parts of the document
under Exemption 3(b).
II. The Sufficiency of the State Department’s Search For Responsive E-mails
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 Valencz``a-Lucena v. U.S. Coast
7
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)). The agency may meet this burden by
submitting affidavits or declarations, and "[i]n the absence of contrary evidence," these
affidavits and declarations are "sufficient to demonstrate an agency’s compliance with
FOIA." Ia'. (citation omitted).
Here, plaintiffs claim that State’s search was inadequate because it did not
sufficiently review employees’ archived e-mails or backup tapes. See Ancient Coin, 641
F.3d at 5 14. On remand, our Circuit Court directed this Court to determine: "[1] whether
backup tapes of any potential relevance exist; [2] if so whether their responsive material
is reasonably likely to add to that already delivered; and, [3] if these questions are
answered affirmatively, whether there is any practical obstacle to searching them." Id.
at 5 1 5. Based on the evidence provided by State, this Court now finds that although other
archival and backup systems do exist, attempting additional searches would not only be
unlikely to result in additional responsive material, but would also be costly and
inconvenient to the State Department.
"The searches conducted [by State] were exhaustive, and there are no other likely
places that if searched would have a reasonable likelihood of containing additional,
meaningful responsive materia1." 3d Grafeld Decl. 11 27. in responding to plaintiffs’
FOIA requests, Bureau employees familiar with both the subject of the requests and the
Bureau’s files "searched appropriate records systems based on their knowledge of the
relevant issues and events."g Id. 11 ll. Beginning in October 2009, the State Department
implemented an electronic backup system that retains Bureau e-mail communications
from only the preceding six months. Id. 11 24. Any e-mail communication deleted more
than six months prior to the time of a FOIA request search would not be retrievable.
Id. 11 25. As such, a renewed search for responsive e-mails in this system would reveal no
additional communications not previously uncovered in the initial FOIA searches, ia’,
and, therefore, is unwarranted, see Schrecker v. U.S. Dep ’t of Justice, 349 F.3d 657, 664
(D.C. Cir. 2003) (explaining that "there are limits to the lengths to which an agency must
go in responding to a FOIA request," including undertaking a "potentially onerous
task . . . with dubious prospects of success") (citation omitted). Thus, aside from the
Personal Storage Folders and the paper records kept under the "print and file" system,
there are no additional archival or backup systems that may contain documents
responsive to plaintiffs’ requests. 3d Grafeld Decl. 11 21.
Furthermore, State persuasively argues that, even if the electronic backup system
did contain additional responsive documents, conducting further searches would be
8 The employees searched the active e-mail accounts and Personal Storage Folders
("PST files")_capable of holding archived e-mails_of both the advisory committee
executive director and a Bureau senior analyst, the PST files of a former employee who
worked on matters relevant to the plaintiffs’ requests, and a general office active e-mail
account. Id. 1111 12-15. After conducting both a visual and automated search of these
files, the employees compared the responsive documents to those documents located
through previous search efforts and concluded that "[n]othing in this comparison
indicated the likely existence of additional e-mail or electronic records . . . responsive to
Plaintiffs’ FOIA Requests." Id.1111 16-18. Rather than an electronic archival system,
State practiced a "print and file" policy during the time relevant to plaintiffs’ requests.
Id. 11 20. State reviewed these "print and file" records in response to the FOIA requests.
Id. 11 22.
inconvenient and fi,ltile. This backup system was not designed to retain documents in an
easily searchable form, therefore, any search efforts would "significantly interfere" with
the functioning of State’s entire information system. Id. 11 26; Pratt v. Webster, 508 F.
Supp. 751, 762 (D.C. Cir. 1981) (citing limiting principles designed to prevent agency
searches that are too expensive and time consuming). Thus, this Court finds that the
State Department conducted a search reasonably calculated to uncover all the e-mail
records responsive to the plaintiffs’ FOIA requests.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the State
Department’s Renewed Motion for Summary Judgment [Dkt. #33] and DISMISSES the
action in its entirety. An Order consistent with this decision accompanies this
/'
RICHARD .
United States District Judge
Memorandum Opinion.
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