Ruling in FOIA case condones DOS intransigence
http://tinyurl.com/y9sfl8a
http://www.accg.us/issues/news/ruling-in-foia-case-condones-dos-intransigenc
e
By Wayne Sayles
A long-awaited ruling fails to address serious issues within the U.S. State
Department bureaucracy.
US District Court Judge Richard Leon - well known for his pro-government
views - has issued a ruling upholding the State Department's refusal to
disclose information about the controversial decisions to impose import
restrictions on coins of Cypriot and Chinese type. The Ancient Coin
Collectors Guild and the other Plaintiffs in this suit remain committed to
seeking transparency and accountability from the State Department (DOS)
bureaucracy and are considering whether to appeal this ruling to the United
States Court of Appeals for the District of Columbia Circuit.
Despite the disappointing decision, this litigation was in many ways a win
for the plaintiffs. The mere fact that ACCG and the other Plaintiffs
brought this FOIA action forced the State Department to process all the
Plaintiff's FOIA requests -- including some that had been ignored by DOS for
as much as three years. As a result of this action, literally hundreds of
pages of requested text were released and the State Department was prompted
to produce documents implicating high level political interference as the
reason for the Cypriot decision. Other information stemming from this
litigation suggests that State Department personnel added coins to the
Chinese request without a formal request from China for that inclusion. The
decision rendered by Judge Leon dealt with those items still remaining on
the plaintiff's list that DOS had refused to release. While the plaintiffs
obviously would have been happier with a summary judgment on their motion,
the process was not without considerable rewards.
The Ancient Coin Collectors Guild still plans to pursue a test case
regarding whether those import restrictions were promulgated in an arbitrary
and capricious fashion. A copy of Judge Leon's Memorandum Opinion can be
found here:
http://www.accg.us/issues/news/ACCG-Opinion.pdf
**********
COMMENTARY
**********
Sayles is correct in observing that this FOIA litigation was, in many
important ways, a victory for the plaintiffs. As he observes, the State
Department was compelled to release a great deal of embarrassing and
discrediting information that had previously carefully been kept secret, via
discovery process in the course of the litigation. That achievement alone
was clearly worth the expense and effort involved in this lawsuit, even
though the State Department has (for the time being) avoided disclosing the
most highly charged, damaging secret details of its controversial decisions
to impose import restrictions on Cypriot and Chinese coins. The information
disclosed was entirely consistent with Plaintiffs' views that anticollecting
ideologues in the State Department bureaucracy had improperly colluded with
anticollecting activists and foreign governments interested in abolishing
the presently legal market for ancient coins in the United States.
The true significance of this information so reluctantly disclosed by the
State Department will only become apparent after the import restrictions
"test case" impending in US District Court in Baltimore, Maryland is
decided. Some of that material revealed in the FOIA lawsuit indicates
possible misconduct which will be explored and exposed in that forthcoming
litigation. In that litigation a different standard for disclosure will be
in effect, and it is anticipated that key State Department officials will be
compelled to disclose many further details of their collusion with the
anticollecting archaeology lobby and officials of foreign governments, under
penalty of perjury.
Judge Leon based his controversial decision on the issue of confidentiality,
sustaining the State Department's claim that information provided in
confidence to either the State Department staff or to the advisory
committee, by individuals or foreign governments, was thereby inherently
protected from disclosure under the FOIA statute -- without regard for
reasons why such disclosure would be required by considerations of equity
for the Plaintiffs, or by otherwise being in the public interest. That
decision is subject to review by higher authority, and Plaintiffs are
considering an appeal to the United States Court of Appeals for the District
of Columbia Circuit.
Regardless of the outcome of such an appeal, it is contrary to the public
interest that the State Department should be allowed to claim absolute
immunity from disclosure based solely upon information having been provided
in confidence. There are to this observer's admittedly limited knowledge
only two situations in which such immunity is recognized by law: the seal of
the confessional, and attorney-client privilege. Allowing a government
agency to claim immunity from disclosing details of discussions with private
individuals and foreign governments based solely upon "an expectation of
confidentiality" obviously creates opportunities for all sorts of abuses,
and if Judge Leon's opinion is eventually sustained that would indicate that
the FOIA is seriously defective and needs revision to close this loophole.
**********
Posted to the list by:
Dave Welsh
Unidroit-L Listowner
http://groups.yahoo.com/group/Unidroit-L
dwelsh46@...
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