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Arthur Houghton v. U.S. Department of State

July 12, 2012


The opinion of the court was delivered by: Amy Berman Jackson United States District Judge


This action involves requests made by plaintiff Arthur Houghton ("Houghton") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (effective July 21, 2010), seeking documents from the Cultural Property Advisory Committee ("CPAC"), a committee operating under defendant, the Department of State ("State"). Houghton seeks a declaratory judgment that State violated FOIA and the Privacy Act by failing to fulfill his request for records, and an injunction compelling State to comply with his requests. Compl. ¶ 2. State has moved for summary judgment. [Dkt. # 16]. Because the Court cannot find on this record that State conducted an adequate search, but it finds that State properly withheld two responsive documents under FOIA Exemption 3, and that the withheld documents are not subject to the Privacy Act, the Court will deny State's motion in part and grant it in part.


The background facts of this case are undisputed, except where noted. See Def.'s Statement of Undisputed Facts [Dkt. # 16]; Pl.'s Response to Def.'s Statement of Undisputed Facts, [Dkt. # 18-1]. CPAC is "a panel of experts representing different interests charged with advising the President and his designees within State" regarding the handling of cultural goods found at archeological sites. Compl. [Dkt. # 1] ¶ 4; see also 19 U.S.C. § 2605 (2006). CPAC was established under the Cultural Property Implementation Act, 19 U.S.C. §§ 2601--2613 (2006), which implements the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ("Convention"). Grafeld Decl. [Dkt. # 16-1] ¶ 15. As part of its responsibility to advise the President and his designee, CPAC "accepts written and oral comments from the public" and conducts hearings for the public to share their views on import restrictions. Compl. ¶ 17. Additionally, CPAC may convene closed meetings "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." 19 U.S.C. § 2605(h).

The Bureau of Educational and Cultural Affairs ("ECA"), a component of State, receives recommendations from CPAC and is responsible for maintaining CPAC's records. Compl. ¶ 6.

Houghton served on CPAC from 1983 to 1987. Compl. ¶ 4. Since then, Houghton has continued to be interested in CPAC and has testified at public CPAC meetings. Id. Specifically, he has testified regarding his "concerns about requests for import restrictions on cultural goods made by the Republic of Italy and the Republic of Greece." Id. ¶ 17.

A. Houghton's Requests

On March 30, 2011, Houghton sent a FOIA request to State seeking: (1) "Any dossier or paper, referencing Arthur Houghton, Arthur A. Houghton, Arthur A. Houghton III, or any other variant of that name prepared or submitted by, or compiled in connection with, any proceeding of the Cultural Property Advisory Committee by committee member Joan Connelly"; and (2) "The transcript of any proceeding reflecting the use of any such dossier or paper."*fn1 Ex. 2 to Grafeld Decl. at 2. Professor Joan Connelly ("Connelly") is a member of CPAC whose role is to "represent[] the interests of the archaeological community." Compl. ¶ 18. State acknowledged receipt of the corrected FOIA request on April 7, 2011. Grafeld Decl. ¶ 6; Ex. 3 to Grafeld Decl. at 1. Houghton subsequently sent a letter to State clarifying that he was seeking the information under the Privacy Act as well as under FOIA. Grafeld Decl. ¶ 8; Ex. 5 to Grafeld Decl. at 1.

B. This Action

Plaintiff filed this action on May 9, 2011. At that time, he had not received a response from State regarding his FOIA or Privacy Act requests. The two counts allege that State violated FOIA and the Privacy Act respectively by failing to release the requested material or allowing plaintiff to correct any inaccurate information about him. Compl. ¶¶ 20--22, 23--25. Houghton seeks an order compelling State to release all records responsive to his requests.

After plaintiff filed this action, the Court ordered State to file a dispositive motion or, in the alternative, a report setting forth a schedule for producing documents to plaintiff. [Dkt. # 14]. In response, State filed the instant motion for summary judgment. [Dkt. # 16]. In support of the motion, State also submitted two declarations from Margaret Grafeld ("Grafeld") describing State's search for documents. Grafeld Decl. [Dkt. # 16-1]; Supp. Grafeld Decl. [Dkt. # 19-1].*fn2 Grafeld oversees State's Office of Information Programs and Services ("IPS"), which is the office responsible for responding to FOIA requests. Grafeld Decl. ¶ 1; Supp. Grafeld Decl. ¶1.

The searches under Houghton's first request did not yield any results. Grafeld Decl. ¶ 21; Ex. 6 to Grafeld Decl. ("State Response Letter") [Dkt. # 16-1] at 1. In response to Houghton's second request, State retrieved transcripts of closed CPAC meetings from November 13, 2009, and May 6, 2010 ("CPAC transcripts" or "transcripts"). Grafeld Decl. ¶¶ 21, 39--42; State Response Letter at 1. At each of these meetings, CPAC members discussed, in connection with a Memorandum of Understanding between the United States and Italy, a publicly available letter written by Houghton in 1985. Grafeld Decl. ¶¶ 40, 42.

State has withheld both documents in full, claiming that they fall under FOIA Exemption 3, and are not subject to the Privacy Act. Grafeld Decl. ¶ 38; Mem. in Support of Def.'s Mot. for Summ. J. ("Def.'s Mem.") [Dkt. # 16] at 11--15. Houghton challenges the reasonableness of State's search, State's failure to segregate exempt parts of the CPAC transcripts from non-exempt parts, and State's claim that the CPAC transcripts are not subject to disclosure under the Privacy Act.


A. Standard of Review

"FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must be "genuinely in issue" in order for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). However, a plaintiff "cannot rebut the good faith presumption" afforded to an agency's supporting affidavits "through purely speculative claims about the existence and discoverability of other documents." Brown v. DOJ, 742 F. Supp. 2d 126, 129 (D.D.C. 2010), quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citations omitted).

In any motion for summary judgment, the Court "must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith, "a court may award summary judgment solely on the basis of information provided by the agency in declarations." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). The district court reviews the agency's action de novo, and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) (2006); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

B. Analysis

The purpose of FOIA is to require the release of government records upon request and to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized "that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused." FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) ("FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential."). The Supreme Court has instructed that FOIA exemptions are to be "narrowly construed." Abramson, 456 U.S. at 630.

To prevail in a FOIA action, an agency must satisfy two elements. First, the agency must demonstrate that it has made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Ogelsby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir 1990). "[A]t the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Ogelsby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search "are afforded a presumption of good faith," Defenders of Wildlife v. U.S. Dep't of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) ("Defenders of Wildlife I"), and "can be rebutted only 'with evidence that the agency's search was not made in good faith.'" Id., quoting Trans Union LLC v. Fed. Trade Comm'n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show that "materials that are withheld . . . fall within a FOIA statutory exemption." Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.C. Cir. 2005). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011), citing Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009).

1. Whether State Conducted Adequate Searches Houghton first claims that State has not met its burden to prove that its searches were adequate. Mem. in Support of Pl.'s Opp. to Def.'s Mot. for Summ. J. ("Pl.'s Opp.") [Dkt. # 18] at 4--6. "An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" ValenciaLucena v. U.S. 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). "To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 91 (D.D.C. 2009) ("Defenders of Wildlife II"). However, "the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis omitted). The process of conducting an adequate search for documents requires "both systemic and case-specific exercises of discretion and administrative judgment and expertise" and is "hardly an area in which the courts should attempt to micromanage the executive ...

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