By Wayne Sayles – Ancient Coin Blog
During the period from July 2004 through August 2007 the numismatic community, by way of the Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG), submitted eighteen requests for information to the U.S. State Department (DOS). These were formal requests under the provisions of the Freedom of Information Act (FOIA). By November of 2007, not one of these requests had produced responsive information. Repeated appeals to DOS for response were either ignored or denied. Related queries from U.S. Senators and Representatives on behalf of the numismatic community were stonewalled. While the requests covered a range of issues, one common thread was the request for information regarding reports produced by the Cultural Property Advisory Committee (CPAC) following their deliberation on requests for import restrictions that included ancient coins.
One major objective of these requests was to ascertain whether DOS had followed the advice of CPAC when they imposed restrictions on the importation of ancient coins from Cyprus. Even though a report to Congress is mandated when DOS deviates from CPAC guidance, neither the public nor Congress have been provided access to the CPAC reports. Another objective was to determine whether import restrictions imposed on ancient coins from China had actually been asked for by the Chinese. These are not questions affecting national security or the sensitivity of diplomatic relations. They are questions that any American citizen ought to be able to pose regarding the activities of their government. They are the very sorts of questions that the Freedom of Information Act was designed to sanction. When answers to these questions were not forthcoming, and it became clear that DOS would not address them, the ACCG with the cooperation of IAPN and PNG launched a FOIA law suit to seek judicial review of DOS actions.
The numismatic community’s lawsuit (which by the way is not over quite yet) challenges a veil of secrecy that permeates DOS and allows extralegal activities within its bureaus to flourish. It is a multi-faceted complaint, but the primary objective of the litigation is to illuminate the process by which Memorandums of Agreement with foreign nations are generated, approved and implemented. These MOUs have deeply and immediately affected ancient coin collectors. The initial complaint was filed in U.S. District Court at Washington, DC on November 15, 2007. As might be expected, the Department of Justice (DOJ) defended DOS with the standard tools of their trade. One delay after another pushed the issue aside. During this period, the State Department did begin to release documents (70 in their entirety, so they claim). Having read every document produced, I can say unequivocally that the exercise was a sham and an insult to FOIA. The majority of documents that were released in their “entirety” were pages of general information from web sites, transcripts of public meetings or copies of material that the plaintiffs themselves had submitted. Those documents that related directly to the question at hand were heavily redacted, sometimes to the point that the only text on a page was the page number itself. One can only imagine the glee with which those responsible must have reveled in their audacity as they submitted these “responses”. The releases were not in good faith, they were a subterfuge that DOS and DOJ would later use in their arguments to claim responsiveness. The number of documents provided sounds impressive on paper, but is far less impressive in the hand. The facts are quite clear on this point, DOS was totally unresponsive over a three year period and then disingenuously responded with primarily useless information only when forced by litigation. They boldly circumvented the spirit and intent of the Convention on Cultural Property Implementation Act (CPIA) and of FOIA.
Quite by accident, I’m sure, DOS failed to redact some information that gave ACCG clues about activity of the Bureau of Educational and Cultural Affairs (ECA) in the MOU and CPAC processes. One series of documents suggested that DOS had communications with the archaeological community about ancient coins prior to any actual request for the addition of coins by the government of Cyprus. When an 11th hour request for this addition materialized, it seemed to validate the suspicion of ACCG that the request was being orchestrated from the U.S. contingent, not from the Cypriot. On November 20, 2009, more than two years after the initial filing, Judge Richard J. Leon issued a ruling of Summary Judgment in favor of the defendant (DOS). On December 22, 2009 ACCG filed an appeal to this decision in the United States Court of Appeals, Washington DC. Predictably, DOJ moved for Summary Affirmation. Naturally, that involved additional argument and filings. The three-judge panel denied the DOJ motion for Summary Affirmance on June 9, 2010 thereby agreeing to hear the case and at the same time allowing the introduction of an amici curiae (friend of the court) brief by certain former members of CPAC.
The introduction of testimony by former members of CPAC lent a new dimension to this case, clearly elevating it to a matter of public concern as opposed to the concern of what might have been argued to be a special interest. The “amici” were not a group of “experts” for rent, they were people of impeccable credentials appointed by the President of the United States to serve on the committee that was under criticism in the suit. What they had to say about DOS secrecy should have raised more than one eyebrow, even in Washington. The Amici included Jay Kislak, Kate Fitzgibbon, Arthur Houghton and Gerald Stiebel — quite a distinguished group. The Amici spoke to “a Congressional intent that federal agencies disclose records to the fullest extent possible while withholding records only to a limited extent.” They expressed a concern with “the undesirable public policy consequences, and with the frustration of the CPIA’s statutory aims, that would come from federal courts’ too-readily upholding boilerplate FOIA exemption claims made by the State Department.” Amici also expressed their view that “If this Court were to accept the State Department’s position, the Court would in effect allow the State Department to withhold everything submitted by the private sector simply because some people request confidentiality.”
In other venues, former members of CPAC expressed their concerns more pointedly. At a public event held by the International Foundation for Art Research (IFAR) at the National Academy in New York on April 17, 2008, former members of CPAC gave their candid assessment of the committee and its management. Former member Kate Fitz Gibbon said “The secrecy under which the Committee operates harms it, as does the lack of transparency…”. Jay Kislak related that “This is the only advisory committee that I have been able to find that conducts everything in secret and will not disclose anything.” He went on to say “I want to make it clear that I am not necessarily against any actions that were taken or any of the MOUs which were recommended by the Committee and put into action. I am, however, opposed to the way it was done because I think it is absolutely, completely, un-American, and I don’t mind saying that.” At a Cultural Policy Research Institute (CPRI) symposium held in Washington, DC on March 21, 2011 Ms. Fitz Gibbon said “CPAC’s committee review and recommendation process fails to meet the law. And, when CPAC’s administration is called on these failures, it will not let that sunshine in. It cloaks its processes in quite extraordinary secrecy. It has refused multiple times Freedom of Information Act requests.” At the same CPRI event, Mr. Kislak amplified on DOS secrecy at CPAC, “We’d get a memo this big each meeting, probably 75, 100 pages, maybe more, with mostly reprints of articles of newspapers and magazines, et cetera, all marked ‘confidential information, do not disclose.’ And I’d ask why it was done that way, ‘Well, it’s just we do it every page.’ There was no rhyme or reason. The secrecy is inexcusable.”
Unwarranted and unjustified secrecy has been the hallmark of State Department policy for a very long time. National reporters, elected officials, advocacy groups, and even State Department insiders have complained about it. Even though some points of the Circuit Court ruling were reversed, the Appellate Court decision of April 15, 2011 was in large measure a stamp of approval on the secrecy that permeates DOS. Ironically, the first of the ACCG objectives mentioned above was achieved when members of CPAC confirmed publicly that DOS did not follow CPAC’s advice and expanded restrictions to ancient coins over CPAC’s vote to exempt them. Some information obtained from the cryptic redactions of DOS will certainly be useful in the Baltimore suit filed by ACCG against DOS and CBP. Other information pertinent to that case may still be forthcoming under the Appellate Court reversal of the lower court’s Summary Judgment. More importantly, the State Department wall of secrecy is a stain on government by the people and this challenge was long overdue. The result, unfortunately, is less than encouraging for those who would like to believe that America is still a land of freedom and justice. The U.S. Appellate Court had a chance to right a grievous wrong and failed to step up when the opportunity was presented.