Advisory committee recommendations can be withheld

Christine Beckett | Freedom of Information | Feature | April 19, 2011

A federal appeals panel on Friday held that recommendations issued by federal advisory committees can be withheld from the public under Exemption 5 to the federal Freedom of Information Act, an exemption allowing the government to withhold records that are deemed "predecisional" or "deliberative" in nature.

The U.S. Court of Appeals for the District of Columbia held that information was properly withheld on most counts by the U.S. Department of State regarding the government's import policies on cultural artifacts from China, Italy and Cyprus in Ancient Coin Collectors Guild v. U.S. Dep't of State.

The State Department's decision to withhold entire documents and partially redact others created by the Cultural Property Advisory Committee was mostly proper, according to the court. Plaintiffs requested documents, including email and policy recommendations, from the committee to the State Department. The panel ordered the case back to the lower court to resolve minor issues related to the adequacy of the search for requested email and, in another instance, for more evidence of whether an informant provided information in confidence.

In response to the requests by the three groups -- the Ancient Coin Collectors Guild, the International Association of Professional Numismatists and the Professional Numismatists Guild Inc. -- the State Department provided them with 70 documents in full, 39 documents in part and withheld 19 documents in their entirety. The State Department cited exemptions 1, 3 and 5 to FOIA for withholding the documents.

Plaintiffs requested certain specific recommendations because they were different than the policy adopted by the State Department, Attorney Scott Hodes, who represented the plaintiffs, said.

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," which generally covers "predecisional and deliberative" materials.

The plaintiffs argued that, because the Federal Advisory Committee Act makes "records, reports . . . working papers, drafts . . . or other documents . . . prepared for or by each advisory committee . . . available for public inspection," the records requested by the plaintiffs should be released. The plaintiffs also argued that, because Congress requires that recommendations not adopted by an agency -- which is what plaintiffs requested -- be reported to it, these records are public and should be subject to disclosure.

"Congress wanted transparency in this," Hodes said. "The people should get it too."

However, the court held that the act's provisions incorporate FOIA, rather than superseding it; therefore, FOIA exemptions still apply to materials sought under the act.

The documents sought were clearly deliberative, as they were recommendations and opinions of Cultural Property Advisory Committee, which has "no authority to set final agency policy," the court found.

Sean Moulton, director of federal information policy at OMB Watch, an organization that advocates for government transparency, was "shocked" by the court's characterization of the committee's recommendations as predecisional.

"I don't understand how [the recommendations] can be considered anything other than a final decision." Moulton said. "They might be predecisional to the agency, but they are the final decision of the committee as a body . . . The committee is an outside body, not a branch of the agency."

Even the factual components of the records are exempt, even though facts usually cannot be withheld as part of the deliberative process, the court held. Relying on earlier decisions of the court, it held that the proper inquiry in determining whether to withhold factual information was "whether the selection or organization of facts is part of an agency's deliberative process."

The facts that the plaintiffs argued should be released were properly exempted because Cultural Property Advisory Committee used its judgment when it "culled" the facts "from the much larger universe of facts presented to it," the court held.

The decision is "a reflection of the way the government has failed to follow President Obama's" directive that the presumption is towards openness, Hodes said.

Moulton was also disappointed with the court's decision. "This goes against the kind of transparency we want in government," he said. "The public has the right to know if an agency is taking the advice of committees or not and what that advice was . . . It's important to know if [the government] is ignoring good advice."

The court also found certain records exempt from disclosure under FOIA Exemption 1, which applies when withholdings are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy." Under Executive Order No. 12,958, information provided by foreign governments is permitted to be classified.

The plaintiffs argued that, because some of the information in the requested materials had previously been made public, the classification of the documents was improper. The court disagreed for the requests regarding materials from Cyprus and China. There is no evidence that the Cyprus materials had been released to the public before, even though the Cypriot government discussed the import policies between the U.S. and Cyprus with a private organization in the U.S, the court found. As for the materials related to the Chinese-American policies, a summary of a larger report on the policies and import restrictions was released, but the court held that the release of an 11-page summary "does not, in itself, make classification of material in the longer report inappropriate."

FOIA Exemption 3 exempts materials "specifically exempted from disclosure by statute." Because the Convention on Cultural Property Implementation Act, which governs the president's authority to enter agreements restricting the importation of cultural artifacts, allows the president "to close CPAC meetings otherwise required to be open" and exempt records from Cultural Property Advisory Committee proceedings from disclosure, the court held that the act is a proper statute for the State Department to rely on when withholding records under Exemption 3.

The plaintiffs contended that Exemption 3 was not properly applied because the records withheld involved documents created after the conclusion of negotiations and, separately, that an investigatory source was not speaking on the condition of confidentiality, which would qualify as a meeting that the president -- or his agent -- had decided to close, as allowed under the Convention on Cultural Property Implementation Act. The court rejected the first argument, holding that post-agreement materials can also be withheld because the benefits of keeping negotiations confidential would be lost if there was "the threat of imminent disclosure -- ripening just at the moment of agreement."

However, the court agreed with plaintiffs on the second argument. The State Department claimed that email communications between the Cultural Property Advisory Committee and a professor of archeology who had worked in Cyprus, and has since passed away, were held under the condition of confidentiality. However, the court held that "the government is not entitled to a blanket presumption that investigatory sources speak under a commitment to confidentiality." The court held that the government must put forth more than the assertion that there was a promise of confidentiality; it must show evidence. On that point, the court remanded the case to the federal district court to review additional evidence to determine whether the communications with the source should be disclosed.

Hodes would not comment on whether his clients would appeal the case, but he noted that the court ruled in their favor on two arguments: The court held not only that the government failed to show that there was a promise of confidence between the State Department and its source, but also held that the State Department did not satisfy its burden to show it performed an adequate search for email the groups had requested. On both points, the court remanded the case to the district court to consider more evidence. "The case is not over," Hodes said.