                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
ARTHUR HOUGHTON,                    )
                                     )
                  Plaintiff,        )
                                     )
      v.                            )   Civil Action No. 11-0869 (ABJ)
                                     )
U.S. DEPARTMENT OF STATE,            )
                                     )
                  Defendant.         )
____________________________________)


                                  MEMORANDUM OPINION

        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.

   I.      BACKGROUND

        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
(2) “The transcript of any proceeding reflecting the use of any such dossier or paper.” 1 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].2 Grafeld oversees State’s Office of Information Programs and Services (“IPS”), which




1       Houghton sent a first request on March 29, 2011, but later asked that his request from
March 30 replace that original request. Ex. 2 to Grafeld Decl. [Dkt. # 16-1] at 1. Because State
acknowledged receipt of his revised request, Ex. 3 to Grafeld Decl. [Dkt. # 16-1] at 1, the Court
will treat the March 30 letter as the operative FOIA request for purposes of this opinion.
2       The first Grafeld declaration (“Grafeld Decl.”) was filed as an exhibit to State’s motion
for summary judgment, [Dkt. # 16-1], and the second Grafeld declaration (“Supp. Grafeld
Decl.”) was filed as an exhibit to State’s reply in support of its motion for summary judgment,
[Dkt. # 19-1].
                                                 3
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.

       II.      FOIA REQUEST

             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



                                                     4
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



                                                5
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]



                                                 6
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.’” Valencia-

Lucena 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 branch.”

Schrecker v. DOJ, 349 F.3d 657, 662 (D.C. Cir. 2003) (internal quotation marks and citations

omitted). However, an agency “‘cannot limit its search’ to only one or more places if there are

additional sources ‘that are likely to turn up the information requested.’” Valencia-Lucena, 180

F.3d at 326, quoting Ogelsby, 920 F.2d at 68.

       State contends that its search was reasonable because it “conducted an extensive search

of all systems and files thought to contain responsive information.”         Def.’s Mem. at 6.

According to the Grafeld declarations, State first identified “the [State] components most likely

to contain responsive records”: Central Foreign Policy Records’ Central File (“Central File”),

and the records of the Bureau of Educational and Cultural Affairs (“ECA”), which encompasses

the Cultural Heritage Center (“CHC”). Grafeld Decl. ¶¶ 12–13.




                                                7
       The Central Foreign Policy Records’ Central File includes more than thirty million

documents and is the “most comprehensive and authoritative compilation of documents” at State.

Id. ¶ 13. Among other things, “the Central File includes official record copies of . . . position

papers and reports; memoranda of conversations; and interoffice memoranda.” Id. State’s

search was conducted through the Central File’s automated interface, which “encompass[es] all

documents in the Central File.” Id. The IPS researcher who conducted the search of the Central

Foreign Policy Records’ Central File “conducted a full-text search” of the Central File using

several variants of Houghton’s name, including all three variants expressly provided in the

request. Id ¶ 14. Because Houghton’s request sought only information related to Connelly, the

date range for the search stretched as far back as Professor Connelly’s membership on CPAC

and included records through the end of Connelly’s CPAC membership on August 29, 2011. 3

Supp. Grafeld Decl. ¶ 5.

       State’s search in response to Houghton’s request also included searches of CHC paper

and electronic records. Grafeld Decl. ¶¶ 17, 20. CHC’s paper files contain information about

CPAC meetings, including “agendas, memoranda, summary minutes of meetings, meeting

announcements, correspondence, testimony, and other material relating to the responsibilities of

the CPAC.” Id. ¶ 16. Its electronic files include information about CPAC meetings, including

travel plans, attendance sheets, and transcripts of meetings. Id. ¶ 18. The CHC electronic files

also include email records from CHC staff members and the general CHC email account. Id.


3        Although State acknowledged Houghton’s revised FOIA request from March 30, 2011, in
a letter dated April 7, 2011, Ex. 3 to Grafeld Decl. [Dkt. # 16-1] at 1, in its declaration it quotes
Houghton’s original FOIA request. Grafeld Decl. ¶ 14. However, because the declarant quoted
the wrong letter only in explaining her method for selecting the date range for the search, and
because both the original and revised requests contained the same date restrictions, this error
does not change the analysis of the adequacy of the search.
         State’s declarant further explained that State’s search eventually included all dates of
Connelly’s CPAC membership, which ended on August 29, 2011. Supp. Grafeld Decl. ¶ 5.
                                                 8
¶ 19. In conducting the paper record search, the analyst “visually scan[ned] . . . the relevant

[paper] files and folders” and “visually scanned . . . electronic versions” of indices of hard copy

transcripts that were “the same as the electronic versions.” Id. ¶ 17. With respect to the

electronic records, the CHC analyst searched electronic files, including emails, using variants of

Houghton’s name as the search terms. Id. ¶ 20. The date range for this search mirrored the date

range for the Central File search. Id. State asserts that the search of the ECA records, which

includes the email accounts of CHC staff members and the CHC office, “would reasonably be

expected to produce any existing correspondence in the files between Professor Connelly and the

Department,” yet the search did not yield any responsive emails or other records sent from or

received by Professor Connelly. Supp. Grafeld. Decl. ¶ 7.

       Houghton’s challenge to the adequacy of the search is that State has “failed to address

why it did not search . . . an obvious source for the information Houghton requested – emails

sent or received by Connelly or any of Connelly’s files.” Pl.’s Opp. at 5. In support of this

assertion, Houghton relies on the D.C. Circuit’s recent decision in Ancient Coin Collectors Guild

v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011). Id.

       In Ancient Coin Collectors Guild, the plaintiff sought records from State relating to

import restrictions on cultural artifacts. 641 F.3d at 509. As part of its search in response to

plaintiff’s FOIA request, State searched ECA staff emails as well as the archived emails of one

ECA staff member. Id. at 514. The plaintiffs argued that State’s search was inadequate because

State did not explain whether it had access to the archived emails and backup tapes of its other

employees and why it failed to search those files. Id. The court held that State was reasonably

expected to inform the court and plaintiffs whether archived emails and backup tapes existed,




                                                9
and, if so, whether they were practically searchable and whether a search would be likely to

return additional responsive material. Id. at 515.

          On remand, the district court found that State had access to backup tapes and archived

emails, but it was not required to search those records because “additional searches would . . . be

unlikely to result in additional responsive material . . . .” Ancient Coin Collectors Guild v. U.S.

Dep’t of State, Civil No. 07-2074, 2012 WL 2103213, at *4 (D.D.C. June 11, 2012).

Furthermore, the Court found persuasive State’s argument that even if the electronic backup

system did contain additional responsive documents, the form of the backup system would make

further searches inconvenient and futile. Id.

          Based on the Circuit Court’s decision in Ancient Coin Collectors Guild, Houghton claims

that State must at least address “whether it possesses emails for Connelly or any of Connelly’s

[f]iles or whether it even asked Connelly if she maintained any relevant documents.” Pl.’s Opp.

at 5–6.

          For a document to be subject to FOIA, it must first be an “agency record,” which requires

that (1) the agency “must either create or obtain the requested materials,” and (2) the agency

“must be in control of the requested materials at the time the FOIA request is made. DOJ v. Tax

Analysts, 492 U.S. 136, 144–145 (1989) (internal quotation marks and citations omitted).

“Control” means that “the materials have come into the agency’s possession in the legitimate

conduct of its official duties.” Id. at 145. “This requirement . . . is not so broad as to include

personal materials in an employee’s possession, even though the materials may be physically

located at the agency.” Id. Therefore, State was not required to ask Connelly whether she

maintained any relevant documents or to search her personal files for documents. However,

under Ancient Coin Collectors Guild, if Connelly maintained an official email address at State,



                                                 10
State is required to either search that account for responsive records or explain why such a search

is not required under FOIA in this case.

         The declarations submitted by the defendant fail to state whether Connelly was provided

with a State email account as part of her service as a CPAC member or not. The supplemental

Grafeld declaration states that State searched the email accounts of CHC staff members and the

CHC office email account, Supp. Grafeld Decl. ¶ 7, but this does not seem to include Connelly,

as neither of the parties describes her as a CHC employee.

         However, plaintiff does refer to Connelly as a “special government employee,” and State

does not contest that description. Pl.’s Opp. at 1. Furthermore, the CPAC website describes

CPAC members as “special employees” of the State Department. See U.S. Dep’t of State,

Bureau      of   Educ.     and    Cultural   Affairs,    Cultural        Prop.      Advisory      Comm.,

http://exchanges.state.gov/heritage/culprop/committee.html       (last    visited    July   10,    2012)

(“Members of the Committee are Special Employees of the Department of State, receive a

security clearance, and may have access to confidential information.”).               That description

suggests that Connelly may have been treated as an employee of State in some ways, so the

Court cannot rule out the possibility that she might have held a State Department email account.

State’s vague statements that “[t]here exists no other Department source where Professor

Connelly’s records would reasonably be maintained” and “[t]here exist no other sources within

the Department where responsive documents may reasonably be expected to be found,” Supp.

Grafeld Decl. ¶¶ 7–8, do not clearly illuminate that question.

         Ultimately, since the Court is required to draw all inferences in favor of the non-moving

party at this stage in the litigation, the Court cannot infer from State’s declarations that

Connelly's emails are not agency records. Accordingly, the Court will deny defendant’s motion



                                                11
for summary judgment as to the adequacy of its search. State will be required to submit to the

Court an additional brief explaining whether Connelly utilized a State Department email account

at any point during the relevant time period, and if so: (1) setting out a schedule for searching

the email account and producing either the responsive documents or a Vaughn index asserting

FOIA exemptions, or (2) explaining why FOIA does not require it to search the email files in this

case.

        2. Whether State Properly Withheld the Two Transcripts in Dispute

        Houghton next alleges that State improperly withheld the CPAC transcripts that were

retrieved under the search conducted for Houghton’s second FOIA request because State did not

properly segregate the parts of the transcripts that are exempt under 5 U.S.C. § 552(b)(3)

(“Exemption 3”) from the parts that are not exempt. Pl.’s Opp. at 6–7. The Court will first

address whether any part of the transcripts fall under FOIA Exemption 3; it will then address

whether the parts of the transcripts that are exempt from disclosure, if any exist, are segregable

from any parts that are not.

        When an agency seeks to withhold a document from disclosure, it must specify the

exemption claimed and explain why it is entitled to claim it. Morley v. CIA, 508 F.3d 1108,

1122 (D.C. Cir. 2007), quoting King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987) (internal

citations omitted). The agency bears the burden of justifying the decision to withhold records

under FOIA’s statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). A court may grant summary

judgment based solely on information provided in an agency’s affidavits or declarations if they

“describe the documents and the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”



                                               12
Casey, 656 F.2d at 738. Such affidavits or declarations “are accorded a presumption of good

faith, which cannot be rebutted by purely speculative claims about the existence and

discoverability of other documents.” SafeCard Servs., Inc., 926 F.2d at 1200 (internal quotation

marks and citations omitted).

       In order to properly withhold documents under Exemption 3, an agency “need only show

that the statute claimed is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute.” Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir.

2009), citing Fitzgibbon v. CIA., 911 F.2d 755, 761–62 (D.C. Cir. 1990). A matter falls under

Exemption 3 if it is “specifically exempted from disclosure by [a] statute” that either (1)

“requires that . . . matters be withheld from the public in such a manner as to leave no discretion

on the issue”; or (2) “establishes particular criteria for withholding or refers to particular types of

matters to be withheld.” 5 U.S.C. § 552(b)(3). A “withholding statute” “must on its face exempt

matters from disclosure” and there must be a “congressional purpose for exempt[ing] matters

from disclosure in the actual words of the statute . . . .” Nat’l Ass’n of Home Builders v. Norton,

309 F.3d 26, 38 (D.C. Cir. 2002) (internal quotation marks, citations, and emphasis omitted).

       State first claims that the transcripts are exempt from disclosure based on section (h) of

the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. § 2605, which established CPAC.

Def.’s Mem. at 7. It is settled law in this Circuit that 19 U.S.C. § 2605(h) is an Exemption 3

withholding statute. Ancient Coin Collectors Guild, 641 F.3d at 511.

       Section (h) states that the provisions of the Federal Advisory Committee Act (“FACA”),

5 U.S.C. app. 2 §§ 1–16, shall apply to CPAC, but it expressly excepts the sections of FACA that

require that meetings be open to the public and that transcripts of those meetings be publicly

available. 19 U.S.C. § 2605(h); 5 U.S.C. app. 2 §§ 10(a)–(b), 11. In addition, the CPIA states



                                                  13
specifically that the sections of FACA “relating to open meetings . . . and public availability of

documents” do not apply “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 D.C. Circuit has found unambiguously that this provides “particular criteria” for

withholding disclosure of CPAC proceedings, and therefore qualifies as an Exemption 3

withholding statute.    Ancient Coin Collectors Guild, 641 F.3d at 510–11.             Accordingly,

whenever the President or his designee determines that the disclosure of matters involved in the

CPAC’s proceedings would compromise the government’s negotiating objectives or bargaining

positions, those proceedings are closed to the public and may be properly withheld under FOIA

Exemption 3. Id.

       State has submitted a declaration stating that the President’s designee, the ECA Assistant

Secretary, determined that the disclosure of the proceedings at issue here would compromise the

government’s negotiating objectives. Grafeld Decl. ¶ 30. Because this is an “uncontradicted,

plausible” affidavit, it is sufficient to prove that State properly withheld at least part of the two




                                                 14
responsive CPAC transcripts under Exemption 3. Ancient Coin Collectors Guild, 641 F.3d at

509. 4

         3. Whether the CPAC Transcripts are Segregable

         Houghton further argues that even if parts of the two responsive CPAC transcripts fall

under Exemption 3, State has failed to fulfill its duty to segregate the exempt portions of the

transcripts from the non-exempt portions of the transcripts.

         Even if a matter is exempt from FOIA disclosure, “[a]ny reasonably segregable portion of

a record shall be provided to any person requesting such record after deletion of the portions

which are exempt under this subsection.” 5 U.S.C. § 552(b). “Before approving the application

of a FOIA exemption, the district court must make specific findings of segregability regarding

the documents to be withheld.” Sussman v. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir.

2007).




4        State also claims that the CPAC transcripts fall under Exemption 3 based on Sections
(i)(1) and (i)(2) of the CPIA. Grafeld Decl. ¶¶ 31–38. Section (i) provides: “Any information
. . . submitted in confidence by the private sector to officers or employees of the United States or
to [CPAC] in connection with the responsibilities of [CPAC] shall not be disclosed to any person
other than” officers or employees of the United States, certain members of Congress, or members
of CPAC. 19 U.S.C. § 2605(i)(1). Additionally, “[i]nformation submitted in confidence by
officers or employees of the United States to [CPAC] shall not be disclosed other than in
accordance with rules issued by the Director of the United States Information Agency, after
consultation with [CPAC].” Id. § 2605(i)(2). Although § 2605(i)(1) – and presumably (i)(2) – is
a withholding statute, Ancient Coin Collectors Guild, 641 F.3d at 511, “the government is not
entitled to a blanket presumption that investigatory sources speak under a commitment to
confidentiality. Id., citing DOJ v. Landano, 508 U.S. 165, 178 (1993). Instead, an agency must
present evidence showing that information was submitted in confidence, such as “notations on
the face of a withheld document, the personal knowledge of an official familiar with the source a
statement by the source or contemporaneous documents discussing practices or policies for
dealing with the source or similarly situated sources.” Id., quoting Campbell v. DOJ, 164 F.3d
20, 34 (D.C. Cir. 1998). Although State may not have met its burden to show that the withheld
transcripts are “confidential information” for purposes of 19 U.S.C. § 2605(i), the Court is
satisfied that State has met its burden with respect to section 2605(h), and thus has established
that withholding both transcripts was proper.
                                                15
       The Court agrees with State’s claim that the entirety of the CPAC meeting transcripts are

properly withheld in full under Exemption 3 since the documented meetings were closed

pursuant to 19 U.S.C. § 2605(h). Under the withholding statute, once the President or his

designee at State has determined that a CPAC proceeding is closed pursuant to section 2605(h),

all materials “involved in” such proceedings are exempt from FOIA. Ancient Coin Collectors

Guild, 641 F.3d at 511. An agency declaration “not[ing] that the proper official made . . . a

determination” that the meetings were closed under section 2605(h) is sufficient to demonstrate

that involved materials are exempt. Id. Here, State has submitted the Grafeld declaration, which

explains that the ECA Assistant Secretary, who has the designated authority to close

proceedings, has determined that both CPAC meetings at issue here were closed pursuant to that

statute. Grafeld Decl. ¶ 30. Therefore, the full transcripts of the meetings are exempt from

FOIA as materials “involved in” the proceedings. See Ancient Coin Collectors Guild, 641 F.3d

at 510–512.




                                              16
          Because the transcripts are privileged in full pursuant to 19 U.S.C. § 2605(h), the Court

concludes that no portion of the transcripts are segregable. 5

   III.      PRIVACY ACT REQUEST

          “[A]ccess to records under [FOIA and the Privacy Act] is available without regard to

exemptions under the other.” Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.

Cir. 1987). Accordingly, the Court will next turn to Houghton’s Privacy Act claims.



5       Additionally, even if the Court were required to apply the segregability analysis to the
two transcripts, it would find that State has met its burden of showing that the transcripts are
non-segregable.
        “[I]t has long been the rule in this Circuit that non-exempt portions of a document must
be disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc. v.
U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004), quoting Mead Data Cent., Inc. v.
U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). And the agency bears the burden
of showing that a document is non-segregable. Army Times Pub. Co. v. Dep’t of Air Force, 998
F.2d 1067, 1071 (D.C. Cir. 1993). An agency may meet this burden by providing a detailed
Vaughn Index of each disclosure and affidavits describing segregability. See Johnson v. Exec.
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). “The adequacy of the Vaughn
Index . . . turns on whether the agency has sufficiently explained why there [are] no reasonable
means of segregating factual material from the claimed privileged material.” Wilderness Soc.,
344 F. Supp. 2d at 18. A “blanket declaration that all facts are so intertwined” is not sufficient to
prove this burden. Id. at 19. Instead, an agency must provide the reasons behind its conclusions,
how much of the withheld information is non-exempt, and how that material is dispersed
throughout a withheld document. Mead Data Cent., 566 F.2d at 261.
        State has submitted a Vaughn Index and a declaration from Margaret Grafeld that
describe the contents of both withheld transcripts. With respect to the transcript from November
13, 2009, the Vaughn Index and Grafeld declaration explain that the Committee discussed a
letter written by Houghton in connection with a Memorandum of Understanding with Italy that
imposes restrictions on certain archaeological materials from Italy. Grafeld Decl. ¶ 40. The
Committee again discussed this letter at the CPAC meeting on May 6, 2010, in connection with
the same Memorandum of Understanding. Id. ¶ 42. Declarant Grafeld explains that
“[d]isclosure of any portion of the transcripts could undermine the very purpose of the
Convention and the CPIA” because “disclosure of certain information about the nature [and]
location of the items under consideration for import restrictions can affect the markets for such
time.” Id. Since the letter was mentioned during a discussion of the Memorandum of
Understanding concerning items under consideration for import restrictions, the Court finds that
they are not segregable from the material that would compromise the government’s negotiating
objectives. This segregability determination is confirmed by the Court’s in camera review of the
portions of the transcripts that concern Houghton’s letter.

                                                 17
       A. Standard of Review

       When a plaintiff challenges an agency’s withholding of documents under the Privacy

Act, the court determines de novo whether the withholding was proper, and the burden is on the

agency to sustain its action. 5 U.S.C. § 552a(g)(2)(A); Doe v. United States, 821 F.2d 694, 697–

98 (D.C. Cir. 1987) (finding that in this context, de novo means “a fresh, independent

determination of ‘the matter’ at stake,” and the court need not give “deference . . . to the

agency’s conclusion”) (en banc); see also Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009).

       B. Analysis

       “[T]he [Privacy] Act ‘safeguards the public from unwarranted collection, maintenance,

use, and dissemination of personal information contained in agency records . . . by allowing an

individual to participate in ensuring that his records are accurate and properly used.” McCready

v. Nicholson, 465 F.3d 1, 7–8 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d

1403, 1407 (D.C. Cir. 1984). “The Privacy Act – unlike [FOIA] – does not have disclosure as its

primary goal.” Henk v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996). “Rather,

the main purpose of the Privacy Act’s disclosure requirement is to allow individuals on whom

information is being compiled and retrieved the opportunity to review the information and

request that the agency correct any inaccuracies.” Id. at 1456–57. To achieve this goal, the Act

“imposes a set of substantive obligations on agencies that maintain systems of records.” Skinner

v. Dep’t of Justice, 584 F. 3d 1093, 1096 (D.C. Cir. 2009). For example, an agency that

maintains a system of records must, “upon request by any individual to gain access to his record .

. . permit him . . . to review the record” and to request amendment of the record. 5 U.S.C.

§ 552a(d)(1)–(2). Additionally, with certain limited exceptions, agencies are not permitted to




                                               18
maintain records “describing how any individual exercises rights guaranteed by the First

Amendment.” 5 U.S.C. § 552a(e)(7).

       The Act “provides for various sorts of civil relief to individuals aggrieved by failures on

the Government’s part to comply with the requirements.” Doe v. Chao, 540 U.S. 614, 618

(2004). For example, when an agency improperly withholds documents from an individual, the

“court may enjoin the agency from withholding the records and order the production to the

complainant of any agency records improperly withheld from him.” 5 U.S.C. § 552a(g)(3)(A).

       1. Whether the CPAC Transcripts are “Records” Under the Privacy Act

       Houghton challenges State’s claim that the CPAC transcripts are not subject to the

provision of the Privacy Act that requires the government to disclose to an individual

information compiled about him. Pl.’s Opp. at 9–11.

       In relevant part, the Privacy Act provides:

       Each agency that maintains a system of records shall . . . upon request by any
       individual to gain access to his record or to any information pertaining to him
       which is contained in the system, permit him . . . to review the record and have a
       copy made of all or any portion thereof in a form comprehensible to him.

5 U.S.C. § 552a(d)(1). Thus, any information that is subject to the disclosure provision of the

Privacy Act must be contained in a “record” that is, in turn, contained in a “system of records.”

Fisher v. Nat’l Inst. of Health, 934 F. Supp. 464, 468 (D.D.C. 1996).

       A “record” is “any item, collection, or grouping of information about an individual that is

maintained by an agency. . . and that contains his name . . . or other identifying particular . . . .”

5 U.S.C. § 552a(a)(4) (emphasis added). In this Circuit, a document must meet the two distinct

requirements set forth in the Privacy Act to qualify as a “record”: (1) “information must be

‘about’ an individual”; and (2) “the information must contain the individual’s name or other

identifying particular.” Tobey v. Nat’l Labor Relations Bd., 40 F.3d 469, 471 (D.C. Cir. 1994).

                                                 19
The CPAC transcripts undoubtedly meet the second requirement for a “record” because they

contain Houghton’s name. However, “the fact that information contains an individual’s name

does not mean that the information is ‘about’ the individual.” Id.

       The D.C. Circuit addressed what it means for information to be “about” an individual in

Tobey v. Nat’l Labor Relations Board, 40 F.3d at 470–71. Tobey concerned a computer database

at the National Labor Relations Board (“NLRB”) that was “capable of tracking and monitoring

unfair labor practice and representation case data” and included “case names, allegations made,

dates of significant events and the initials or identifying number of the field examiner assigned to

the case. Id. at 470. The plaintiff was a field examiner at the NLRB who was omitted from a

promotion roster after he received a poor performance evaluation. Id. at 470–71. To write the

evaluation, the plaintiff’s supervisor at the NLRB had used the plaintiff’s initials to search for the

files of all cases that that were assigned to the plaintiff. Id. at 471. The supervisor used these

files to draw conclusions about the plaintiff’s efficiency. Id. at 470.

       The plaintiff claimed that the files in the database were records about him under the

Privacy Act because his supervisor had used his initials to retrieve them. Id. at 471. The court

held that the files within the NLRB computer system were not “records” because they were

about NLRB cases, not the employees assigned to work on those cases. Id. It found this to be

true even though the files included identifying information for employees assigned to the case.

Id. The fact that the files included employee identifying information “no more mean[t] the

information [was] ‘about’ the individual than it mean[t] the information [was] ‘about’ the date on

which the case settled.” Id. Instead, information “about” an individual “actually describes the

individual in some way. Id. at 472; see also Fisher, 934 F. Supp. at 471 (explaining that in order




                                                 20
for a document to be a “record,” it “must provide information concerning or describing the

named individual”).

        Similar to the information in Tobey, the CPAC transcripts at issue here do not meet the

first prong of the “records” definition because they are not “about” Houghton. Instead, the

transcripts are about a Memorandum of Understanding between the Government of the United

States and the Government of the Republic of El Salvador concerning the imposition of import

restrictions on certain categories of archaeological material from El Salvador, Grafeld Decl. ¶ 40,

and a Memorandum of Understanding between the United States and Italy concerning similar

restrictions on archaeological material from Italy. Grafeld Decl. ¶¶ 40, 42. Even the parts of the

transcripts that mention Houghton are about a letter he wrote that was published in the Los

Angeles Times, not about him. Id.

        The opinion of another court in this District is also instructive here. Fisher v. National

Institute of Health concerned a series of databases operated and maintained by the National

Institute of Health that contain information about articles that have been published in biomedical

scientific journals. 934 F. Supp. at 467 & n.2. Each file in the database provides bibliographic

information about the article, including the title of the article, title of the publication, the name or

names of the author or co-authors, and a summary or abstract of the article. Id. at 467. In

Fisher, the Office of Research Integrity at the U.S. Department of Health and Human Services

had investigated the plaintiff for scientific misconduct.        Id. at 466.    In the course of the

investigation, the office added annotations, such as “scientific misconduct – data to be

reanalyzed,” to the database entries that contained bibliographic information about articles that

the plaintiff had authored. Id. at 467.




                                                  21
       The plaintiff argued that those entries were “records” for purposes of the Privacy Act

because they contained his name and address and because “nothing tells more ‘about’ a research

scientist like Dr. Fisher than his scientific publications, speeches and the like.” Id. at 469. The

court, however, held that the files contained in the database, including the annotations, were not

“records” for Privacy Act purposes because the files were “about” the articles, rather than the

plaintiff, even though “a reader . . . could glean some insight into the type of work [the plaintiff]

did.” Id. at 470. The Court explained that “[t]he fact that it is possible for a reasonable person to

interpret information as describing an individual does not mean the information is about that

individual for purposes of the Privacy Act.” Id.

       Similarly, the documents at issue in the instant case are “about” the two Memoranda of

Understanding that the CPAC members were discussing. Even the parts that mention plaintiff

are “about” the letter that plaintiff had written. 6 Just as in Fisher, the mere fact that the

transcripts contain reference to or quote from plaintiff’s written work is not sufficient to make it

a “record.” The CPAC transcripts are therefore not records about Houghton for purposes of the

Privacy Act, and State is not required to disclose them to Houghton. 7 5 U.S.C. § 552a(d)(1).




6       The Court’s in camera review of the portions of the withheld documents that reference
plaintiff and the letter confirms Grafeld’s representation that the transcripts are not about
plaintiff, but are about the CPAC proceedings and the Memoranda of Understanding. Even the
parts that mention Houghton are about the content of the letter he wrote, not about him.
        The Court also notes that State enclosed a three-page cover memorandum along with the
withheld documents that it delivered to the Court pursuant to the Court’s June 20, 2012, Minute
Order. The Court has not relied on that memorandum for purposes of this opinion or the
accompanying order.

7        State also argues that the documents at issue are not subject to the Privacy Act because
State does not maintain a requisite “system of records.” Def.’s Mem. at 12–15; see 5 U.S.C.
§ 552a(d)(1). Plaintiff raises factual disputes concerning this argument. Pl.’s Response to Def.’s
Statement of Undisputed Facts [Dkt. # 18-1] ¶ 10. However, the Court will not reach this issue
since it finds that the documents are not “records” under the Privacy Act.
                                                 22
Accordingly, State has met its burden of proving that the transcripts are not subject to sections

(d)(1) and (d)(2) of the Privacy Act.

       2. Whether the CPAC Transcripts are Records Describing How Houghton Exercises his
          First Amendment Rights

       Lastly, Houghton challenges State’s maintenance of the CPAC transcripts under section

552a(e)(7) of the Privacy Act, Pl.’s Opp. at 8–9, which, with limited exceptions, prohibits

agencies from maintaining records “describing how any individual exercises rights guaranteed

by the First Amendment.” 5 U.S.C. § 552a(e)(7); Albright v. United States, 631 F.2d 915, 919

(D.C. Cir. 1980) (The Privacy Act “clearly prohibits even the mere collection of such a record,

independent of the agency’s maintenance, use, or dissemination of it thereafter.”). Houghton

claims that even if the withheld transcripts are not subject to disclosure under section (d)(1),

State is prohibited from maintaining them at all under subsection (e)(7).        Pl.’s Opp. at 8.

However, since the Court has already found that the two withheld documents are not “records”

under the Privacy Act, subsection (e)(7) does not apply. See Reuber v. United States, 829 F.2d

133, 142 (D.C. Cir. 1987) (explaining that for a claim under section 552a(e)(7), the “threshold

inquiry” is whether “the agency ‘maintains a record describing’ activity of the subject potentially

implicating the First Amendment”). 8 Therefore, the Privacy Act does not prohibit State from

maintaining the two withheld transcripts.




8       Although the court in Reuber held that the document was a “record” because it “clearly
identifie[d] Reuber by name and address,” 829 F.2d at 142, this was a pre-Tobey decision, and
thus relies on an outdated understanding of the term “record.”
                                                23
    IV.      CONCLUSION

          The Court cannot conclude as a matter of law that State conducted an adequate search in

response to plaintiff’s FOIA request; however, it finds that the two responsive documents State

withheld are exempt from disclosure under FOIA Exemption 3 and are not subject to the Privacy

Act.

          Accordingly, the Court will grant in part and deny in part defendant’s motion for

summary judgment. [Dkt. # 16]. State will be required to submit an additional memorandum on

or before August 1, 2012 explaining whether Connelly utilized a State Department email account

at any point during the relevant time period, and if so: (1) setting out a schedule for searching

the email account and producing either the responsive documents or a Vaughn index asserting

FOIA exemptions, or (2) explaining why FOIA does not require State to search the email files in

this case.

          A separate order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: July 12, 2012




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