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Trust:

Board of Trustees of the Museum of the American Indian, Heye Foundation, v. Board of Trustees of the Huntington Free Library and Reading Room (suit to require the transfer of the Heye Foundation library collection to the Smithsonian Institution for the National Museum of the American Indian - filed January 1990 by the Heye Foundation in the New York Supreme Court: On June 27, 1991, Justice Martin B. Stecher granted the Foundation's motion for summary judgment and directed the Huntington Free Library (HFL) to convey the library. The HFL filed an appeal to the Appellate Division of the New York Supreme Court on August 1, 1992. Pursuant to the agreement transferring the Heye Foundation's assets to the Smithsonian, the 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. The Motion was denied on March 21, 1995. The Institution has 30 days from the date of the decision to file an appeal to the New York Court of Appeals.)

Oral argument was held before the U.S. Court of Appeals for the District of Columbia Circuit on February 14, 1995, in Cotton v. Adams (Cotton I), and a decision of the Court is pending. It will be recalled that on December 14, 1993, U.S. District Court Judge Charles R. Richey had issued an order, holding that the plaintiff was entitled to recover $49,385.94 in attorneys' fees and costs 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. On behalf of the Smithsonian Institution, the Department of Justice filed, on January 13, 1994, a notice of appeal of the December 14, 1993, order to the U.S. Court of Appeals for the District of Columbia, and cross-motions ensued.

The key issue on appeal -- whether the Smithsonian Institution is an "authority of the government" and therefore an "agency" for purposes of the Freedom of Information Act -- has fundamental constitutional implications. This is the first time a U.S. Appellate Court has had to determine the relationship of the Smithsonian and its Board of Regents to the Government. A finding, nearly 150 years after its creation, that the Board of Regents (comprised of the Chief Justice, six members of Congress, and nine private citizens) is an "authority of Government" could have a profound effect on the future administration of the Smithsonian within the federal structure.

In the same vein, on February 28, 1995, U.S. District Court Judge Gladys Kessler denied the Smithsonian's Motion to Dismiss the Dong v. Smithsonian Institution complaint, finding that the Institution constitutes an agency subject to the Privacy Act, 5 U.S.C. ยง 552a. As previously reported, Dong was