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).
9 comments:
Nathan- I would advise you to consult with a lawyer rather than a fellow archaeologist as to the meaning of this decision. Here is my take on the decision, for what it's worth. See http://culturalpropertyobserver.blogspot.com/2009/11/gill-press-release-betrays-fundamenal.html
As to the timing of the ACCG press release, I would not read much more into it other than the fact that Plaintiffs' lawyer forwarded the decision onto his clients shortly before a major holiday. That does beg the question, however, how Prof. Gill became aware of the decision so quickly.
Anyway, the decision is what it is, but it certainly is not the end of the issue-- nor should it be-- particularly given the fact that a number of archaeologists (you included) claimed at the Italian interim MOU hearing that the Cyprus "precedent" should be a basis to overturn the two time exemption for coins of Italian type.
Will you acknowledge after reading Mr. Kislak's declaration that CPAC recommended against import restrictions on Cypriot coins, but that was changed based on political interference from above?
In any event, despite all that, I do hope you had a nice Thanksgiving.
Sincerely,
Peter Tompa
Peter,
If the concern is about influence from above, could you explain then why there was an interest in attaining the emails of private citizens who corresponded about Cyprus?
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).
Or why there is an interest in finding out the names and information of officials and individual law enforcers involved in the enforcement of 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).
Best,
Nathan
I'll be happy to answer that question, but only after you answer mine:
1. How did David Gill learn about this decision so quickly (I suspect you know)?;
2. Will you acknowledge after reading Mr. Kislak's declaration that CPAC recommended against import restrictions on Cypriot coins, but that was changed based on political interference from above?
Best,
Peter
Peter,
Why don't you ask David how he found out? The decision was posted by the court publicly and freely online. Why is there an implication of conspiracy? Why do you seem miffed he found out about it if, as you say, it is wrong to read anything into the fact that the lobby did not publicize anything about the ruling until after Gill's post? After all, the ACCG is usually on the ball with press releases on things like this.
Why do you require an endorsement of Kislak's declaration? His is one among dozens of opinions circulating on the complexities of the issue. And, with respect to Mr. Kislak, things that you and Mr. Sayles have said before would imply leaking information to your group during time served on the committee.
So again, if the concern is about "influence from above" why seek to violate the privacy of private citizens by attempting to attain the emails of scholars, collectors, and dealers? And what is the interest of trade lobbies in attaining the names and information of officials and law enforcers involved in the enforcement of import restrictions?
Best,
Nathan
I'm sorry, but I find your last post to be unresponsive and argumentative. I will thus not elaborate further in answer to your questions other than to direct you to Plaintiffs' briefs on these points.
Finally, the Court's memorandum only indicated that Mr. Kislak's "opinion" related to whether material would be released-- not as to what happened before his own committee when it came to a vote whether restrictions should be extended to coins. That affidavit was shown to the State Department before it was filed and they raised no objection to it so I am not sure what exactly is the basis for your complaints against Mr. Kislak. Don't you think the record of decision should be clear?
Best,
Peter
Sorry that you feel that way, Peter, but if you want answers from David you should ask him. I am not privy to his operations. Mr. Kislak was not the topic of this post.
I understand that you wish remain unresponsive to the issue that private emails sent in confidence by members of the public were sought or that the trade organizations/lobby were demanding the names of officials and individual law enforcers responsible for enforcing import restrictions.
Best,
Nathan
Nathan
I have had to state how I knew about the decision on Looting Matters.
Best wishes
David
Nathan- Per your suggestion on "Looting Matters," I am reposting this here, though I would note that David moved the discussion there and I was responding to the questionn you re-posed on his blog.
That, however, is a minor point. The major point I hope to convey is that Plaintiffs just want the public record to be clear about what happened with respect to the Cypriot request. The FOIA case was one vehicle to help accomplish that goal; the customs "test case," should be another:
Nathan- I'm not going to take the time to look at the briefs again, but you are free to do so. They are all on the ACCG website. in any event, my recollection is Plaintiffs said they did not want personal information other than names. Plaintiffs solely wanted to learn what went into making the decision, so Plaintiffs could judge for themselves whether they believed some faulty information ended up as part of the basis for the decision.
I should also note Plaintiffs did not ask for comments made pursuant to the State Department's FED REG Notice or supplemental notice on coins other than from a few individuals and groups. What Plaintiffs were interested in were any behind the scenes contacts with State Department officials. There certainly was evidence produced that the State Department was soliciting information behind the scenes from individuals who were associated with groups seeking restrictions. Oddly enough, the State Department apparently made no similar effort to seek information from either neutral groups or ones against restrictions.
Seeking such information is not inconsistent with the decision being ordered from above as that information could have been used as justification. You also assume Plaintiffs knew as much about what happened on the Cypriot restrictions when they made their FOIA requests as they do now. That would be a faulty assumption.
And why shouldn't Plaintiffs have asked about the names of bureaucrats who helped make this decision? That is relevant as well to piecing together the record. I should also note there is no requirement in FOIA that Plaintiffs demonstrate the relevance of any particular request.
I think I have now answered your questions. In return, I would again ask you to read the Kislak declaration (also on the ACCG website) and tell me after reading that if you plan to again stand before CPAC when the Italian renewal comes up again and talk about the Cypriot "precedent" without acknowledging that "precedent" appears to be contrary to CPAC's recommendations. Of course, you are free to do so, but isn't that being disingenuous? You are not claiming Mr. Kislak's declaration about what happened in his own Committee is only his "opinion" are you?
Sincerely,
Peter Tompa
Peter,
Thank you for your comments. I expect we will ultimately have to "agree to disagree" since I still fail to see the relevance of the names and information of low-level State Department employees if the concern is about "influence from above." You aren't suggesting that low-level staff were the ultimate decision-makers, are you? And in this context what is the relevance of the trade lobbies seeking the names of law-enforcers involved with the enforcement of MOUs? Will Customs agents be acting as "influences from above" or are there other reasons why importers would want this information?
I believe I stated in an above comment that Kislak's declaration preceded several comments and insinuations that you and Mr. Sayles made about some incontrovertible evidence for misconduct that would some come out (I can bring up the citations if you like). If this is correct, then it would seem to indicate that Mr. Kislak was leaking information to your group during his tenure on the committee and that the motivation for much of the ACCG's litigious activities was the "inside information." And so it does seem the ACCG would have known much before it launched its FOIA lawsuit.
I am unclear as to why you require an endorsement of Mr. Kislak's declaration from me. I am an outsider and not privy to the inner workings of the committee; and so are ACCG officers except for what sympathetic former and sitting members of the committee might wish to tell them. And so why should I endorse the declaration of one vocal member while other committee members have held confidentiality?
Nevertheless I think it is worth observing two things:
1) The Cultural Property Advisory Committee (CPAC) is exactly that - an advisory committee. The committee advises the decision maker how to act, but that does not mean he/she must accept every nuance of the committee's recommendation. I doubt the president administers the country by accepting all of the recommendations that his advisors give him. 2) It is also important to remember that there is another precedent: China. If I recall correctly, the hearing on China was before that on Cyprus even though the decisions were announced at different times. Is there a declaration that states the committee did not make a recommendation to include coins from China?
All best,
Nathan
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