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Institution exercised the right to assume responsibility for the appeal by requesting the Department of Justice, Civil Division, to represent the interests of the Smithsonian. Oral argument was presented before the Appellate Division of the New York State Supreme Court on December 17, 1992. On April 19, 1994, the Appellate Division reversed the June 27, 1991, decision of Judge Stecher; a Motion for Reargument or, in the Alternative, leave to appeal to the New York Court of Appeals was filed on May 10, 1994, and the motion was heard (without oral argument) on June 22, 1994. A decision on the motion is pending.)

As previously reported in Cotton v. Adams (Cotton I), on December 14, 1993, Judge Charles R. Richey issued an order, holding, in the main, that the plaintiff was entitled to recover attorneys' fees in this case in light of (1) the substantial public benefit derived from the Court's June 26, 1992, order finding that the Smithsonian is an "agency" under the Freedom of Information Act, and (2) the increase in the amount of information available to the public thereby. The plaintiff was awarded $49,385.94 in attorneys' fees and costs. On January 13, 1994, the Department of Justice filed a protective notice of appeal to the U.S. Court of Appeals for the District of Columbia, pending a decision by the Solicitor General on the merits on an appeal. (The appeal was approved by the Solicitor General on November 29, 1994.) A Motion to Dismiss the appeal was filed by the plaintiff on March 17, 1994, and an Opposition to that Nation was filed on March 28, 1994. Plaintiff's Reply was filed on March 31, 1994. On June 3, 1994, a panel of the U.S. Court of Appeals referred this Motion to the merits panel. The brief for the Smithsonian Institution was filed on November 30, 1994, and plaintiff's brief was filed on December 30, 1994. Oral argument is scheduled for February 13, 1995. The key issue on appeal, whether the Smithsonian Institution is an "agency" for purposes of the Freedom of Information Act, could have significant implications for the future administration of the Smithsonian within the federal structure.

In a similar vein, the Smithsonian is awaiting a decision on the Motion to Dismiss pending in the U.S. District Court for the District of Columbia in Dong v. Smithsonian Institution, a case brought by an employee of the Smithsonian's Hirshhorn Museum and Sculpture Garden (HMSG) on March 24, 1994. The plaintiff alleges that the Smithsonian violated the Privacy Act by investigating a trip she made in September 1993 to accompany a loaned HMSG painting traveling from Barcelona, Spain, to New York. The employee was suspended for five days because the trip was unauthorized. It is the opinion of the Department of Justice that the Smithsonian is not an agency covered by the Privacy Act, which coverage is defined by the same statute (the Administrative Procedure Act, 5 U.S.C. § 551(1)) as that for the Freedom of Information Act. The Motion to Dismiss, asserting the Department of Justice and Smithsonian opinion that the Institution is not covered by the Privacy Act, was filed by the U.S. Attorney's office on May 20, 1994; plaintiff filed an Opposition on June 13, 1994; and the U.S. Attorney's Reply was filed on June 23, 1994. Oral argument on the motions was presented before Judge Gladys Kessler at a status conference on September 13, 1994. In this case, as in Cotton I, the key issue is whether the Smithsonian falls within the "agency" definition of 5 U.S.C. § 551(1).