The litigious measures of the ACCG, and particularly its FOIA lawsuit against the Department of State with co-plaintiffs IAPN and PNG, have come up in discussion on this website before. A decision was delivered last Friday. David Gill delivered the first public comments (see "The ACCG, IAPN, and PNG FOIA Case: Opinion Delivered", 24 November 2009, Looting Matters). Gill's latest PR Newswire article brings further attention to the decision:
SWANSEA, Wales, Nov. 27 /PRNewswire/ -- David Gill, archaeologist, reflects on the outcome of the Freedom of Information Act (FOIA) related case brought against the US Department of State by two numismatic trade bodies and a collector advocacy group.
Two numismatic trade bodies, the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG), and a collector advocacy group, the Ancient Coin Collectors Guild (ACCG), had made a series of eight FOIA requests relating to the import restrictions on ancient coins from three specific areas: China, Cyprus, and Italy. The searches produced some 128 documents; 70 were released in full, and 39 in part.
In November 2007, the three groups (ACCG, IAPN, PNG) filed suit for the release of the remaining material. The action was taken because, according to the ACCG, the three bodies felt that "the State Department [had] recently imposed unprecedented import restrictions on ancient coins from Cyprus."
The restrictions on coins and other archaeological material had been put in place as part of a suite of measures to try and reduce the problem of looting. The Memorandum of Understanding (MOU) with Cyprus was praised by Dr. Pavlos Flourentzos, the then-director of the Department of Antiquities of Cyprus. He had been keen to include coins as part of the MOU. In a December 2007 interview for SAFE (Saving Antiquities for Everyone), Flourentzos noted, "there is no scientific reason to set coins apart from the rest of archaeological finds." He also stressed that the MOU "shows sensitivity to the importance of preserving world cultural heritage, a principle highly esteemed by the international scientific community."
The lawsuit has now come to a conclusion with the issuing of a memorandum by Judge Richard J. Leon on November 20, 2009. Leon concluded that the State Department had "conducted a reasonable search" and that "it properly withheld the disputed information under FOIA exemptions."
The three plaintiffs are now said to be considering an appeal. The ACCG is also planning to bring a test case apparently linked to import restrictions. In April this year, the ACCG had tried to import ancient coins from China and Cyprus through Baltimore Airport without the appropriate paperwork.
It would appear that the ACCG had intended to keep the decision quiet until determining how to react since no comment came from them until immediately after Gill publicized the ruling. Shortly thereafter, the ACCG made a press release, apparently authored by Executive Director Wayne Sayles, which includes some interesting spins ("Ruling in FOIA Case Condones DOS Intransigence"). Gill has provided further discussion ("'This litigation was in many ways a win for the plaintiffs': The ACCG Responds to FOIA Decision").
Also of interest is the tenor and reasoning of comments made by Dave Welsh (Chair of the ACCG's International Affairs Committee) on the decision ("FOIA Case Ruling", 25 November 2009, Unidroit).
The judge's opinion memorandum is publicly available (download here). The judge's comments provide insight into the sorts of documents that the ACCG and its co-plaintiffs were trying to obtain, but which the government determined were included in FOIA exemptions. Such material includes private emails sent by members of the general public in regard to the MoU:
The State Department further points out that, contrary to the plaintiffs' assertion, the information in question here-certain emails sent by members of the private sector in connection with the Act and certain materials from the Bureau submitted to the committee-was provided in confidence. (Grafeld Decl. at 38, 54, 60, 72.) Specifically, the Grafeld Declaration states that the information was provided in confidence to either the State Department staff or to the advisory committee, often by archaeologists, curators, collectors, dealers, and auction house specialists, with the expectation of confidence. (Id.) Such confidence was necessary in order for individuals to disclose information about the quantity, quality, and objects of looting. (Id.). The Government thus properly withheld the information under exemption (b)(3). See 19 U.S.c. §§ 2605(i)(l)-(2).
It also appears that the dealer lobby was curious to uncover the identity of State Department employees and law enforcers involved in the enforcement bilateral agreements and import restrictions:
The Government also withheld portions of two documents under exemption (b )(7)(C), which exempts information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Specifically, the State Department withheld names, email addresses, and telephone and fax numbers of low-level employees included in a chain of emails created as part of law enforcement efforts to implement and enforce cultural property restrictions. I I (Def.'s Mot. at 9.) Given the individuals' strong privacy interest in their identifying information and the weak public interest in identifying information of low-level employees, the Court concludes that the State Department properly 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).
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