Petition for Writ of Certiorari — Horowitz v. Peace Corps (No. 05-947)

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PRELIMINARY STATEMENT

Reflecting on this Honorable Court’s Escobedo

decision, Justice Thurgood Marshall recalled

appreciation that the Government can

transform an individual into an ‘accused’

without officially designating him as such

through the ritual of arraignment.

U.S. v. Gouveia, 467 U.S. 180, 190 (1984) citing Escobedo

v. Illinois, 378 U.S. 478 (1964)

By endorsing its star witness (former Peace Corps

officer Arturo Giron), the Government — under the guise of a

FOIA “defense” — ambiguously and falsely accuses petitioner

of confession to the sexual abuse of an apparent minor in the

Kingdom of Tonga. (cumulation of 04-5065 App. 36 at 45;

10/10/02 Tr. 12:17-19, 43:21-22; App. 97; 6/20/05 Appellee’s

Br. at 16). Because the PROTECT Act has neither geographic

nor statutory limitation (18 U.S.C. at § 3283), petitioner may

thus be menaced by mistaken prosecution for life. Yet since

1999, the Government has relentlessly refused — even upon

order from the chief district judge — to disclose text

confirming either the identity of petitioner’s reported accuser

“or the nature of the alleged abuse.

The situation bears more resemblance to Kafka’s

fiction than American justice as commonly understood.

Painstaking research has yet to discover a previous case

where an officer of a federal civil agency allegedly obtained

a confession whose text, years later, the Government refused

to privately disclose to the alleged confessor. Even the Los

Angeles Police Department, in its most corrupt phase,

promptly furnished its accused copies of confessions it

allegedly obtained.

Petitioner seeks private written confirmation of the

source and nature of the accusation *gainst him’ via the

Privacy Act ... or alternatively via the Freedom of

Information Act (including its “reasonably segregable

portion” provision) or the U.S. Constitution. He also seeks

leave, under Rule 60(b)(1), to adduce evidence challenging

that portion of the Government’s effective accusation that

was presented via surprise at evidentiary hearing in district

court.

KEY FACTS?

From January 1, 1997, Horowitz was a PCV in the

Kingdom of Tonga, principally assigned to ‘Atenisi

Institute’s University Division. (App. 13 at. §3). In November

1998, his service was extended 14 months — i.e., until

January 2000. Id.. Between December 1998-January 1999,

the Tonga Post highly recommended him to UNV for service

after January 2000. (Id.; App. 50-51).

On or about March 8, 1999, a Tongan complainant

reportedly lodged allegation with said Post regarding

Horowitz’ behavior towards him 12 months previously.

(10/10 Tr. Def. Ex. 4 at 1, 36:22-24, 42:21-22). The

complainant initially asserted he was an ‘Atenisi high school

> The information is reportedly contained in, among other documents,

petitioner’s Administration Separation Report (ASR) — the initial subject

document of the instant case.

* Although the Court of Appeals confirms the district court’s findings as

free of clear error (Cert. App. 8), it fails to confine its prefatory review of

facts to said findings. Id. at 2-4, but see Cert. App. F, 04-5065 11/30/05

Appellant's Mot. to Amend Opinion, denied 12/20/05.

student in March 1998, but the Post was unable to confirm

that assertion. (10/10 Tr. Def. Ex. 4 at 1, 198:15-22). He also

claimed he’d been under 18 in March 1998, but was unable

to verify age. (10/10 Tr. 39:14-15, Def. Ex. 4 at 1). The

morning after reportedly lodging allegation, the reported

complainant approached Horowitz for compensation. (10/10

Tr. Def. Ex. 4 at 1, 194:14-195:15, 195:17-20, 204:1-9).

Informal adjudication of Horowitz’ administrative

separation was conducted between March 10-16 (App. 34

at 44, 35 at 919), Horowitz denying the dramatic portion of

the allegation on March 10 (10/10 Tr. 105:18, 191:6-8), then

retaining local counsel the moring of March 12. (PI. Ex. 1

at 1, App. 176:4-12). Former Post director Giron alleges

Horowitz “essentially admitted” the alleged “incident” on

March 10 (App. 36 at 95) ... then fully conceded it the

afternoon of March 12. (10/10 Tr. 43:21-22).* On March 15

Horowitz’ counsel, Lopeti V. Foliaki — outgoing director of

the Tongan bar association and former San Francisco Consul

for the Kingdom (App. 47 at 99, 174:24-175:1) — told

Horowitz Giron had warned him that moming the PCV

would soon be administratively separated solely on the basis

of the complainant’s allegation. (10/10 Tr. Pl. Ex 1 at 1, 10/10

Tr. 153:15-17, 155:19-25, 157:20-21, 159:15-25, 185:18-19).

March 16. was the final session of informal

adjudication of Horowitz’ separation; on that afternoon, the

PCV — in the words of the Court of Appeals — “... had to

chose between two unpalatable alternatives” (Cert. App. 10)

— i.e., resignation, or having his ASR promptly forwarded to

Washington (10/10 Tr. Def. Ex. 6 at 2-3), which, under the

* The record shows Horowitz denying the dramatic portion of the

allegation on March 10, then incrementally contesting key details from

March 12. (04-5065 6/6/05 Appellant’s Br. at 20-21).

Peace Corps Manual, spells administrative separation. (Cert.

App. 80 at § 4.5.2). To protect his UNV application from

what he suspected was a slanderous ASR (10/10 Tr. 217:19-

25), Horowitz pledged to resign, submitting resignation the

following morning to acting Post director Olsonoski. (App.

35 at 919-20). For his part, Giron placed Horowitz’ ASR. in

his Post’s vault prior to departing for the U.S. on the evening

of March 16. (Cert. App. 61-62 at 915; 10/15 Tr. 72:24-73:9).

COURSE OF PROCEEDINGS

After exhausting administrative remedy, Horowitz

filed the instant action in April 2000 in order to obtain his

ASR under the Privacy and FOI Acts. In October 2001, the

district court issued summary judgment that 1) under FOIA

awarded Horowitz a key fact in the ASR — the identity of the

reported complainant, yet 2) denied him the document under

the Privacy Act. (Cert. App. 28-36). In January 2004, after

evidentiary hearing in October 2002, the district court denied

Horowitz the integral ASR under FOIA, while neglecting to

evaluate the dccument for reasonably segregable portions.

(Cert. App. C). It also adopted en toto the Government’s

proposed factual findings. (Cert. App. 41-42 citing Cert.

App. D.).°

In October 2005 the Court of Appeals reversed the

district court’s FOIA order to disclose the complainant’s

identity by granting the Government Exemption 6 ... yet

affirmed judgment below in all other respects. (Cert. App. A).

It as well found that — other than the complainant’s identity —

: Thereby revealing it is not persuaded that Giron warned either Foliaki

or Horowitz about the PCV’s imminent separation, nor sought to force

the Volunteer’s resignation. (Cert. App. 62-63 at 416). Accordingly, it

finds the ASR a “draft” (Id. at 42 n.3) because Giron had not decided to

separate Horowitz upon drafting it. Id. at 44.

no portion of the ASR was reasonably segregable from the

“content or context” of the Tonga Post’s deliberation. Id. at 8.

In May 2000, petitioner filed a related civil rights

action in district court that has been stayed pending

disposition of the instant case. Civ Act No. 00-1195.

EXPLICATION OF THE CASE

L Petitioner’s Privacy Act claim should be sustained

because: A) the Peace Corps Manual effectively requires an

ASR to be placed in a records system when the resignation of

a PCV is forced, as the Court of Appeals effectively finds in

this case; B) the Government failed to carry burden to

disprove that the vault of Peace Corps’ Tonga Post is a

repository of agency records; and C) the Government failed

to carry burden to disprove that the ASR was never retrieved

by name, such retrieval being required in the D.C. Circuit to

sustain a claim.

A. Court of Appeals Effectively Finds that the

Post’s Decision to Administratively Separate

Horowitz Precedes his Resignation

In its de novo review of the Government’s Exemption

6 claim, the Court of Appeals concedes that Horowitz:

had to choose between two unpalatable

alternatives. It is difficult to see how the Peace

Corps’ long-established procedure of allowing

volunteers to resign rather than face public

charges of misconduct could be deemed improper.

(Cert. App. 10).

Since the court acknowledges that law enforcement

was never implicated in the instant case (Id. at 11 n.2, 14), the

choice to which it must surely be referring is the choice

Horowitz had to make during the final session of informal

adjudication of his administrative separation — i.e., during the

final confrontation with Giron and Olsonoski late Tuesday

afternoon, March 16, 1999. At said session, Giron reports that:

... | had the draft document with me during the

meeting, either on top of the conference table at

which we were sitting or in my hands, and

therefore the document itself, as an object, may

have been visible to [Horowitz] but its contents

were not shown to him ... During this meeting

and at other meetings, I afforded [Horowitz his]

rights, and therefore I notified him of some of the

same information that is contained in the draft

document ...

(App. 38-39 at 9918-19).

In an earlier memo, Giron recounts what next occurred:

... we told him that we would be submitting the

administrative separation report on him to

Washington ... We also probably told him that he

could resign at that point prior to submission of any

_ AS report and that the actual submission of the ASR

would constitute our final decision to separate him.

(10/10 Tr. Def. Ex. 6 at 2).

To appreciate the extent of Giron’s admission, one

must evaluate the director’s memo in the context of agency

Manual Section 284. The MS284, which Horowitz had been

directed to review the previous week, informs PCVs that

ASRs are only forwarded to the Office of Volunteer

Services/Special Services (VS/SS) post-decisionally:

If a V/T resigns after the decision to

administratively separate has been made but

before the process has been completed, the

Administrative Separation Report must be

completed and forwarded to VS/SS.

(Cert. App. 80 at § 4.5.2).

Director Giron must surely have known then that, with

respect to ASRs, PCVs reviewing the MS284 had to

conclude that “if it leaves the Post, you’re toast” — i.e., if the

ASR is forwarded to Washington, the PCV will be separated.

Consequently, on de novo review the Court of

Appeals correctly finds that Horowitz “... had to choose” on

March 16, though the dilemma would be more precisely

described as a choice between resignation and administrative

separation, as previously faced by PCV Peitz in 1995. Peitz v.

Peace Corps 97-5159 (D.C. Cir. 1997), summary affirmance

of Mem. Op., Civ Act No. 96-622 (D.D.C., May 12, 1997);

but see 96-622 Def.’s Statement of Material Facts as to which

there is no Genuine Issue at 42; all in 04-5065 6/20/05

Addendum to Appellant’s Reply Br.

Clearly, the Tonga Post could not have credibly

threatened Horowitz-with administrative separation if it had

not been prepared to execute separation. Accordingly under

MS284, it was required to place Horowitz’ ASR amidst

agency records, because its decision to administratively

separate was effectively made prior to the PCV’s

resignation.°

B. The Appellate Court Effectively Relieves the

Government of its Burden to Disprove that the

Vault of Peace Corps’ Tonga Post is a

Repository of Agency Records

The district court found that the Tonga Post initially

retained Horowitz’ ASR in its safe. (Cert. App. 61-62 at 415)

(“... in a safe in the Peace Corps’ offices in Tonga’).

Horowitz additionally testified that Giron warned him the

ASR would be so retained for one year — i.e., until March

2000. (10/10 Tr. 218:7-9, and see Appellee’s Br. at 34,

where the Government relies on this testimiony).

Yet the Court of Appeals finds crucial two declarations

by agency officers, who in summary motion declare they are

unable to locate Horowitz’ ASR among agency records. (Cert.

App. 15). Yet the declarations are hardly decisive.’ The record

° Petitioner thus argues that, on de novo review, the Court of Appeals

effectively finds clear error in the district court's finding at 916 (Cert.

App. 62-63) that no duress precipitated resignation ... and further

contends that the appellate court’s effective vacation of said finding

sustains his FOIA claim to the integral ASR. Yet in deference to the

privacy of all parties, he remains willing to conditionally dismiss his

FOIA claim upon sustainment of his Privacy Act claim. (Appellant’s

Reply Br. at 21).

’ See e.g. Londrigan v. FBI(I), 670 F.2d 1164, 1174-75 (D.C. Cir. 1981),

where an affidavit not based on personal knowledge was insufficient to

support summary denial of a Privacy Act claim; see also Holy Spirit

Ass'n v. CIA, 636 F.2d 838, 844-45 (D.C. Cir. 1980) quoting Hayden v

Nat'l Security Agency, 608 F.2d 1381, 1387 (DC Cir. 1979) (“[summary

judgment is only appropmiate] if the affidavits provide specific

information sufficient to place the documents within the exemption

category ...”)

reveals the searches were undertaken in October 2000 (App.

41; 00-848 #21, Exs. 6,7) — nearly seven months after the date

Giron indicated the ASR would be removed from Post.

Moreover, said court presumes these officers had

knowledge of every record system in their agency, even an

informal one created nearly 19 months previously. Indéed, a

review of the declarations demonstrates the officers looked

in all the wrong places — e.g., in Horowitz’ principal

Volunteer file at Post and VS/SS files at headquarters, where

the parties concur the ASR was never sent. Id..

The appellate court next notes that, on summary

motion, Horowitz failed to prove his ASR was, in fact, stored

among agency records. (Cert. App. 15). But as the court

surely knows, on summary motion the onus was on the

Government to prove the ASR was not so stored. And there

simply is no probative evidence disproving that — by

retaining the ASR in its vault — the Tonga Post did not store

Horowitz’ ASR among other sensitive records under its

control.

i The Appellate Court Relies on a False

Presumption about Electronic Formats to

Relieve the Government of its Burden to

Disprove that Horowitz’ ASR was never

Retrieved

It is unsettled whether a record must actually oe

retrieved to be subject to the Privacy Act. Henke v. U.S.

Dep't of Corimerce, 83 F.3d 1453, 1460 (D.C. Cir. 1996);

but see Williams v. Dep't of Veterans Affairs, 104 F.3d 670,

674-77 (4" Cir. 1997). And in the instant case, the chief

district judge found the ASR qualified as a record under the

Act. (App. 118-19) (“ ... no real debate between the parties

about the fact that the document at issue here is a ‘record’ for

the purposes of the Privacy Act ...”).

But assuming the retrieval requirement arguendo, the

Government stipulates the ASR was electronically retrieved

by Horowitz’ name on March 16, 1999 at 3:12 ».m ... then

immediately e-mailed to headquarters. (App. 40). In

declaration, Giron further concedes the printout was

“visible” to Horowitz when the director later met with the

PCV and Olsonoski. (App. 38-39 at §9]18-19; see also 143 at

915). And in hearing, Giron admits to meeting with

Olsonoski and Horowitz “... very, very shortly thereafter”

- e-mailing the ASR to headquarters. (10/10 Tr. 58:18-22).

Yet in de novo opinion the appellate court presumes —

absent supporting evidence — that, in the eyes of the Privacy

Act, the electronic file retrieved by Giron is not the same

document as its very prompt printout. (Cert. App. 15)

(“ ... involved an electronic copy, not the physical document

in the safe.”). Moreover, said court again overlooks who

carries the burden under Open Government law.’ It appears

to require Horowitz — on summary motion below — to

somehow cajole Peace Corps into revealing other sensitive

documents its Tonga Post may have retrieved from its vault.

Id. (“... Horowitz has not shown that [other] files in the safe

are, in practice, retrieved by individuals’ names ... ”). Were

such persuasion routine, district courts might dispense with

discovery before evidentiary hearings.

* By Open Government law is meant FOIA, the Privacy Act, Government

in the Sunshine Act, and the Federal Advisory Committee Act. See

Litigation under the Federal Open Government Laws 2004, Harry A.

Hammitt et al., eds. Washington, DC: EPIC Publications, 2004.

Because the court’s a priori presumption about

printouts is cybernetically false’ and ~ in the instant case —

evidentially baseless, it fails to relieve the Government of its

burden. It is simply indisputable that, on summary motion,

the Government was unable to refute an obvious truth — i.e.,

that on March 16, 1999, a valid format of Horowitz’ ASR

was retrieved by Peace Corps’ Tonga Post.

I. FOIA Exemption 6-should be denied because the

reported accuser apparently sought to blackmail petitioner

and, for that and other reasons, there is a public interest in

petitioner 's forced resignation

A. The Court of Appeals Improperly Holds

Horowitz to the Ray Standard cited in Favish

In finding Horowitz’ public interest challenge

“virtually nonexistent” (Cert. App. 10), the appellate court

exports a recent Exemption 7(C) ruling of this Honorable

Court - National Archives & Records Admin. v. Favish, 541

U.S. 157 (2004) — to the Government’s cross-appeal claiming

Exemption 6. /avish requires requesters of law enforcement

information to overcome privacy interests by producing

. evidence sufficient to warrant a belief by a

reasonable person that the alleged Government

impropriety might have occurred.

541 U.S. at 174.

9 ‘ : ¢ .

e.g., the Electronic Signatures Act generally equates the validity of

electronic and manual contracts. 15 U.S.C. § 7001(a)(1) where the validity

of an electronic contract may not be denied “... solely because it is in

electronic form.”: see also p. 24 infra quoting Williams at 676.

Yet the Court of Appeals applies the Ray standard

later cited in Favish to Horow’tz’ public interest challenge -

i.e., it finds that, with respect to the PCV’s allegation that he

was abandoned to apparent blackmail, Horowitz failed to

offer the “‘clear evidence’ required to overcome the

presumption that Peace Corps’ official conduct was proper.”

(Cert. App. 10 citing Favish at 174 citing Dep’t of State v.

Ray, 502 U.S. 164, 179 (1991)).

But the appellate application of Ray is erroneous for

two reasons:

l. Favish Explicitly Declines to Hold FOIA

Requesters to the Ray Standard .

While Ray may be a “working principle” in general

litigation against the Government, it is too severe a test to be

applied to public interest challenges to privacy interests

under FOIA. Favish at 174 (“Given FOIA’s prodisclosure

purpose ... the less stringent standard we adopt today is

more faithful [than Rav] to the statutory scheme.”).

me lavish Explicitly Confines its “Sufficient

Evidence” Standard to Requesters challenging

Exemption 7(C) is

Under Favish, the “sufficient evidence” standard is

only required to sustain a public interest challenge to

Exemption 7(C) ... and this Court explains therein why said

standard is so confined. Id. at 165-66. The “marked contrast”

between Exemptions 6 and 7(C) is not due to “mere accident

in drafting”; indeed, the reason for the demarcation is that

law enforcement investigation — unlike general research —

often implicates people whose “... link to ... official inquiry

may be the result of mere happenstance ...” Id..

B. Misapplication of the Ray Standard Prejudices

the “Appellate Court against the Evidence

before it

In erroneously holding Horowitz’ challenge to the

Ray standard, the Court of Appeals again loses its evidential

bearings by improperly disregarding: 1) evidence regarding

apparent blackmail; 2) the Government’s refutative burden

regarding said blackmail; and 3) major media coverage of

Horowitz’ forced resignation.

l. Evidence of Apparent Blackmail

In summary motion in district court, Horowitz

alleged that his reported accuser — the moming after

reportedly lodging complaint at Post — sought the PCV out to

request compensation. | (App. 47-48 at 910 correcting App.

18-19; repeated at hearing 10/10 Tr. 204:1-9). And Peace

Corps never disputed Horowitz’ allegation in pleading. (04-

5065 6/20/05 Appellant’s Reply Br. at 27).

Nor could the agency so dispute. In Giron’s memo to

headquarters on March 13, 1999, the director flatly refers to

complainant’s compensatory request of March 9 as a “fact.”

(10/10 Tr. Def. Ex. 4 at 1).

With Horowitz reporti.:g complainant’s request for

compensation on March 12 (10/10 Tr. 194:3-196:1), and

® Petitioner holds that, under circuit precedents, complainant’s apparent

blackmail ploy vitiates his privacy interest. (04-5065 6/20/05 Appellant's

Reply Br. at 29).

Giron confirming it the following day, what other evidence

of apparent blackmail might the appellate court require?

Inasmuch as the court reversed an order below to disclose

complainant’s identity, hasn’t Horowitz done everything

possible to confirm the apparent shake-down? Yet, misled by

Ray, the court finds Horowitz failed to submit sufficient

evidence to justify further inquiry into Peace Corps’ response

to apparent blackmail. (Cert. App. 10).

2. The Government’s Refutative Burden

The appellate court further errs when it requires

Horowitz to prove said blackmail. (Cert. App. 10)

(“... he has not offered the ‘clear evidence’ required ... ”).

Clearly, the burden in district court was on the Government

to dispute the allegation of attempted blackmail. But as it

neglected to do so in pleading, it ought to suffer the

adjudicative consequence.

3; Major Press Coverage of Horowitz’ Forced

Resignation

It is ironic that the Court of Appeals effectively

chooses to second-guess a legal columnist of the Washington

Post regarding whether inquiry into Horowitz’ forced

resignation is in the public interest.'' Yet so misled is the

court by the Ray standard that it declines to even note Post

coverage of Horowitz’ forced resignation, despite the fact said

coverage was commonly accessible in its circuit. 04-5065

10/14/05 Order denying notice of media coverage material to

appeal; but see Fed. R. Evid. 201(b), “Personal Personne!

Records: Access Denied,’ James V. Grimaldi, Washington

'! Logically, determination of « sublic interest must ultimately rest with

the public.

Post, May 1, 2000 at F31 in 6/20/05 Addendum to Appellant’s

Reply Br.

ok Summary of Point IJ

Petitioner’s challenge to Exemption 6 should be

sustained because there is public interest in the fact that the

Tonga Post abandoned him to apparent blackmail before

forcing his resignation. For confirmation of forced

resignation, see pp. 7-9 supra citing Cert. App. 10.

HI. Petitioner’s claim for reasonably segregable portions—

ought not be arbitrarily denied

Besides the identity of the complainant, petitioner is

entitled to reasonably segregable portions of ithe ASR,

including the complainant’s allegation, as well as identities

and allegations of PCVs and other informants. (04-5065

6/6/05 Appellant’s Br. at 34). Yet in de novo review, the

Court of Appeals denies the claim in terse blanket fashion.

(Cert. App. 8) (“ ... any attempt to segregate non-

deliberative portions would effectively disclose the content

and context of intra-agency deliberations.”).

A. The Appellate Court’s Standard for Testing

Segregability is Arbitrary

Horowitz holds that disclosure of the “context” of

agency deliberation is far too broad a standard for testing

segregability. For more reasonable guidelines, see Attorney

General’s Memorandum on the 1974 Amendments at I-C in

Freedom of Information Act and Amendments of 1974 (P.L.

93-502) — Source Book, 99" Cong., 1“ Sess. (Joint Comm.

Print, Mar. 1975), pp. 507-38 in Addendum to Appellant’s

Reply Br. Nor is it possible to imagine how the identity of

PCVs and other informants might compromise the “content”

of the Tonga Post’s deliberation, especially in light of the

fact that Peace Corps itself never raised this point regarding

disclosure of the complainant’s identity.

B. The Court Fails to Follow Precedent

regarding “Express Finding”

The appellate court was wrong as well to deny

Horowitz’ claim in blanket fashion. To enable petition here,

circuit precedent entitles requesters to an express finding of

segregability regarding each claimed portion. Krikorian v.

Dep't of State, 984 F.2d 461, 467 (D.C. Cir. 1993) quoting

Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 & n.4

(D.C. Cir. 1991); Mead Data Cent. v. Dep't of the Air Force,

556 F.2d 242, 261 (D.C. Cir. 1977).

IV. Petitioner’s 60(b)(1) claim should -be sustained

because: A) the Court of Appeals misconstructs Rule

60(b)(1) and B) there are compelling reasons to grant the

requested relief

A. The Court of Appeals Confirms that Horowitz

was Surprised by Exhibits at Hearing ... but

then Errs by Requiring him to Prove the

Surprise “Unjust”

Petitioner argued in district court that a key “fact”

found by the court (i.e., Cert. App. 59 at 49) was derived

from a surprise exhibit the Government sprang at evidentiary

hearing. (App. 65 citing ter alia 10/10 Tr. Def. Ex. 4).

Invoking Fed. R. Civ. P. 60(b)(1), Horowitz asked leave to

adduce evidence contesting inter alia the unexpected exhibit.

(App. 59-75).

Although not disputing that some of its exhibits were

unexpected, the Government responded by arguing that such

presentation was the consequence of a “strategy” — rather

than “mistake” — of Horowitz’ counsel. (App. 78-79). And

the district court adopted the Government’s response as its

rationale for denying claim. (App. 161-62)

Upon review, however, the Court of Appeals sustains

Horowitz’ argument that the Government exploited a

“mistake” of counsel to lodge exhibits by “surprise.” (Cert.

App. 17). Yet because the court fails to find the exploitation

“unjust,” it affirms denial of claim. Id. (“[Horowitz fails to]

explain why any surprise was unjust rather than a result of a

mistake by his attorney.”’).

But the appellate court misconstructs Rule 60(b)(1).

Said rule does not require a litigant to prove surprise unjust:

it only directs that if a litigant suffers “mistake” and/or

“surprise,” s/he may be relieved from final judgment “upon

such terms as are just.”. See e.g. Conley v. Gibson, 355 U.S.

41, 48 (1957) (“The Federal Rules reject the approach that

pleading is a game of skill in which one misstep by counsel

may be decisive to the outcome ...”). By only asking to

adduce evidence rather than vacate judgment (App. 70-71),

Horowitz conformed his 60(b)(1) claim to the “just terms”

requirement.

Yet assuming arguendo that Horowitz must prove

injustice he, in fact, showed in district court the corrosion

that stemmed from “uncritical” reliance on Def. Ex. 4, the

most noxious of the Government’s surprise exhibits. (App.

59). And in reply to the Government’s appellate response, he

demonstrated why mistake by his former counsel ought to

have been excused below. (Appellant’s Reply Br. at 25-26).

B. There are Compelling Reasons to Grant

Evidentiary Relief

¥: The Exhibit informing the District Court’s

Finding at 99 is easily Contested

The contested exhibit alleges that at 4 p.m., March

12, 1999, Horowitz “... admitted to the incident” alleged by

complainant, the alleged “incident” being equated by the

Government on appeal with “sexual abuse.” (10/10 Tr. Def.

Ex. 4 at 1, App. 97). Based on said exhibit, the district court

found that “Mr. Giron recalls that Mr. Horowitz recognized

the incident, but explained to Mr. Giron that the incident was

consensual ...” (Cert. App. 59 at 49). Yet in his 60(b) claim

in district court, Horowitz argued he retains compelling

evidence disputing his very presence before director Giron

that afternoon. (App. 65).

iB If said Finding is Memonialized, it might

Unfairly a) Prejudice Horowitz’ related Civil

Rights Action, and b) Menace his Legal

Security for Life

There are serious consequences to memorializing the

district court’s Finding at 49. The Tonga Post initially

alleged said incident involved an “apparent” minor. (10/10

Tr. 12:14-19). As noted supra, the Government on appeal

escalated its description of allegation to “sexual abuse.”

(App. 97). Thus, a zealous prosecutor might mistake a false

finding with admission to sexual abuse of a minor. And

because the PROTECT Act recognizes no geographic or

statutory limitation, Horowitz might be menaced for life by

such prosecution. 18 U.S.C. § 3283.

Moreover, said finding might be exported to — and

thus prejudice — Civ Act No. 00-1195, a related civil rights

action stayed since October 2000, pending disposition of the

instant case.

Given the corrosive potential of Finding at 49, it is

difficult to imagine how justice is served by the courts

continuing to shield from contest the Government’s surprise

exhibit that informed the finding.

V Petitioner's appellate claim under the Fifth and Sixth

Amendments ought to be heard because: A) on appeal, the

parties acknowledged a substantial change in the context of

the instant case, and B) in consequence, the Appeals Court

permitted the Government to “correct ... defect” in pleading

below.

A. The Stakes of the Instant Case Increased

Substantially on Cross-Appeal

It is common ground among the parties that the

Government raised the stakes of its FOIA “defense” when, in

initial submission on cross-appeal in April 2004, it suddenly

described complainant’s allegation as “sexual abuse.” (App.

97). Previously, the district court had only found

complainant’s allegation to be “potential sexual misconduct”

viewed legally in the light of “prohibition [sic] on

homosexual activity in Tonga.” (Cert. App. 55 at §2, 57-58

at {6 n.I(c)).

Because 1) the Tonga Post initially alleged

complainant’s minority (10/10 Tr. 12:17-19), and 2) sexual

abuse and minority together implicate the PROTECT Act, and

3) the district court found (albeit ambiguously) that Horowitz

“'.. recognized the incident ...” (Cert. App. 59 at 49), the

Government’s FOIA “defense” has become de facto criminal

prosecution. In May 2004, he so informed the district court

and claimed the Sixth Amendment (App. 59) (“... said

transformation entitles [Horowitz] to the text of the

accusation against him under the Sixth Amendment.”). He

then raised both the Fifth and Sixth Armendments in appellate

brief. (Appellant’s Br. at 30-33, Reply Br. at 7-9).

B. Having Permitted the Government to “Correct

. Defect” in Pleading below, the Court

should Allow Horowitz to do Likewise

Far from deploring this altered appellate landscape,

the Court of Appeals seems to welcome it, all but

commending the Government for escalating its description of

its withheld allegation from homosexuality to “sexual

abuse.” In the appellate court’s view, it is no longer

necessary for Peace Corps to be as “discreet” as it was

below; indeed, the agency is now free to “... correct this

defect [of discretion] on appeal.” (Cert. App. 9).

But if on appeal the Government is permitted to

escalate its FOIA “defense” into de facto criminal

prosecution, Horowitz ought to be allowed to raise his

constitutional nght to text revealing the source and nature of

the accusation against him. Why should the Government be

permitted to tune its description of a withheld accusation

according to the forum in which it pleads? And if it is so

allowed, whv should the court refuse to treat Horowitz’

constitutional response? Indeed, in the face of the

Government’s sudden escalation of accusation on appeal,

why should petitioner’s constitutional claims not be newly

heard?

CONFLICTS PRESENTED

Between the D.C. and Fourth Circuits:

PRIVACY ACT

iB The D.C. Circuit holds that:

a. in order to qualify as a records system, records

therein must be actually retrieved via personal

identification. (Cert. App. 15 quoting Henke vy.

U.S. Dep't of Commerce, 83 F.3d 1453, 1460

(D.C. Cir. 1996)). But in a case involving a

veteran’s health records, the Fourth Circuit

rules that actual retrieval is unnecessary:

This close textual reading by courts of the

statutory language and OMB implementing

guidelines appears to focus on the trees at the

expense of the forest. The careful analysis of

the Henke court, for example, is suffused

with the sense that the language of the Act is

not so plain after all, but rather is ambiguous,

although the court never comes out and says

so ... We find the narrow Henke rationale ...

unconvincing in these circumstances ...

Williams v. Dep't of Veterans Affairs, 104 F.3d 670, 674-77

(4"" Cir. 1997).

b. in the eyes of the Act, electronic files

materially differ from their printouts. (Cert.

App. 15) (“[Retrieval of Horowitz’ ASR]

involved an electronic copy, not the physical

document in the safe.”). But in Williams, the

Fourth Circuit predicts that:

... Surely at some point federal agencies

must acknowledge that computer files are

like paper documents, floppy disks are like

file folders, and hard drives are like file

cabinets.

104 F.3d at 676.

Between the D.C. Circuit and a ruling of this Hon. Court:

FREEDOM OF INFORMATION ACT

EXEMPTION 6

y The Court of Appeals doubly misuses this Court’s

Favish ruling by: a) applying the Ray standard rejected

therein and, in any event, b) exporting the Exemption

7(C) ruling to de novo review of an Exemption 6

cross-appeal that does not implicate law enforcement

or confidentiality.

Between the D.C. Circuit and U.S. Statute:

ELECTRONIC SIGNATURES IN GLOBAL AND

NATIONAL COMMERCE ACT

The Court of Appeals presumes as a matter of law

that an electronic file docs not implicate its prompt

printout, even absent evidence of material difference.

But analogously the Electronic Signatures Act

gencrally equates the validity of electronic and

manual contracts. 15 U.S.C. § 7001(a)(1) where the

validity of an electronic contract may not be denied

**_.. solely because it is in electronic form.”

PRIVACY ACT

4. The Court of Appeals effectively relieves the

Government of its burden to disprove that a subject

document was placed in an agency records system.

REASONS WHY THE WRIT SHOULD BE GRANTED

I. Maintaining the Integrity of Open Government

Law is Vital to Public Knowledge

This Honorable Court holds that Open Government

law is a “structural necessity in a real democracy.” Favish at

172. This is especially true this winter: the Justice

Department’s Special Counsel has recently indicted the Vice

President’s Chief of Staff for misleading an investigation

authorized by Congress. Open Government law

unmitizated by appellate retrenchment — ts urgently required

by the public to advance related inquiry.

A propos, the ranking Democrat on the Senate

Judiciary Committee warned last year that:

The enactment of FOIA was a watershed moment for

democracy. [Yet] This bulwark of open Government

is under assault ... But I hope it can always be said

that cach generation of Americans did all that it could

to preserve the public’s mght to know for the next

veneration of Americans.

- 26

Statement of Senator Patrick Leahy, Subcommittee on

Terrorism, Technology, and Homeland Security, March 15,

2005.

That task here falls on petitioner and this Honorable Court.

A. The Courts must continue to hold the

Government to its Burdens, as Congress

intended

Enforcement of the burden of proof places probative

onus on the Government and helps tip the balance towards

disclosure, as Congress intended.

In the instant case, the Court of Appeals improperly

shifts burden to Horowitz at three junctures, requiring him to

prove on summary motion that:

e the Tonga Post’s vault was a repository of agency

records. (Cert. App. 15; see p. 11 supra);

e sensitive files therein are retrieved by individuals’

names. Id.; see p. 12 supra;

e the complainant’s “purported blackmail attempt”

actually occurred. (Cert. App. 10-11 n.1; see

p. 16 supra).

B. Absent Evidence to the Contrary, Different

Formats of the Same Document must

continue to be Presumed Materially Identical

The presumption of material identicalness of a

document’s electronic and printout formats -— absent

evidence of difference -- prevents computerized Government

from evading Open Government law by contnving false

dichotomy. Without such presumption, document litigation in

the computer age would devolve into chaos.

Indeed, five days after the Court of Appeals posted

opinion in the instant case, Access Reports, the journal of

Open Government advocacy, challenged the court’s a priori

presumption that electronic and printout formats are — as a

matter of law — materially different:

... [Hon. Cir. Judge] Brown’s insistence that the

[ASR] has two separate existences — as a hardcopy

record and as an electronic record — and that the

dissemination of the electronic version somehow docs

not implicate the hardcopy version doesn’t make

sense and would allow agencies to avoid violating the

Privacy Act if they disclosed an electronic version of

a document as long as they didn’t disclose the

hardcopy version ....

Access Reports, 31:21 at §.

€. FOIA’s Clear Distinction between Law

Enforcement and General Information must

continue to be Respected ‘

While the Favish standard controls public interest

challenges to Exemption 7, it ought not control such

challenges to Exemption 6: i.e., it is vital that the distinction

between law enforcement and general information be

scrupulously maintained. Otherwise, federal courts might

export the Favish standard to all FOIA requests for private

information, thereby chilling general inquiry.

D. Detailed Findings of Segregability must

continue to be Required under FOIA

Detailed findings of segregability are an

indispensable component to the exposure of Government

action, as they often enable appeal of improper withholding

of facts.

Il. Open Government Law must be Uniform

throughout the Circuits

By finally adjudicating the instant case, petitioner

prays this Honorable Court to ultimately clarify whether:

PRIVACY ACT

e The reach of the Act is confined to only those record

systems that agencies formally acknowledge (see Cert.

App. 15) (*...- not maintained in the Peace Corps’s

official files.”’); but see U.S.C. § 552a(a)(5); —

e In order to qualify as a records system under the Act,

records therein must be actually retrieved; see Id. citing

Henke; but see Williams at 674-77 (“We find the narrow

Henke rationale ... unconvincing ...”).

e Even in the absefice of evidence of material difference,

the retrieval of an electronic file doesnot implicate its

prompt printout; see Id. (“... involved an electronic copy,

not the physical document in the safe.”’); but see U.S.C.

§ 7001(a)(1); Williams at 676 (“... computer files are like

paper documents ... hard drives are like filing cabinets.”).

FREEDOM OF INFORMATION ACT

EXEMPTION 6

e A public interest challenge to a privacy interest 1) need

only lodge a reasonable suspicion of Government action,

or 2) satisfy the Ray standard for non-FOIA litigation

against the Government (“... clear evidence” of

Government impropriety), or 3) satisfy the Favish

standard for obtaining law enforcement information

(“... evidence that would warrant a belief ... that ...

Government impropriety might have occurred.”’).

Il. Fair Application of Rule 60(b) and the Sixth

Amendment is Vital to the Rights of the Accused

Federal Rule of Civil Procedure 60(b) is the final

recourse of the accused, after the Government has surprised

him or her with adverse evidence at trial or hearing. And

consistent with Justice Marshall’s reading of Escobedo (p. 3

supra), the Sixth Amendment ought to become available to a

citizen when s/he is criminally accused by his/her

Government.

QUALITY OF PETITIONER’S ADVOCACY

From June-December 2004, petitioner was

represented pro bono on appeal by Jenner & Block, a

national law firm expert in access and constitutional issues.

Should certiorari be granted, petitioner is contident he.could

retain similar assistance here.

CONCLUSION

Open Government law carries a presumption of

disclosure. /avish at 174.

It is difficult to imagine more compelling use of the

Privacy Act than obtaining text disclosing a reported

accuser’s identity and allegation, particularly when the

accused is (albeit ambiguously) alleged to have confessed to

said allegation but retains irrefutable evidence he was not

even present — let alone party to — the confession.

Petitioner’s forced resignation implicates

decisionality under the Peace Corps Manual ... while his

forced resignation and abandonment to apparent blackmail

implicate decisionality and public interest under FOIA. And

the initial placement of his ASR in an agency vault subjects

the document to the Privacy Act.

Yet the Court of Appeals does all in its power to deny

petitioner accusatory text under either Act. It resurrects the

rejected Ray standard, conflates FOIA exemptions,

arbitrarily denies segregability. rclieves the Government of

its burdens, and, in the absence of supporting evidence,

presumes material dichotomy between an electronic file and

its prompt printout. In short, it fails to presume disclosure as

required.

For these and all other foregoing reasons, the instant

petition should be granted to review the appellate judgment.

Respectfully submitted,

Vids fg

MICHAEL G. HOROWITZ, Ph.D.

6034 NE 32™ Place

Portland, OR 97211

Z (503) 725-3993

January '¢ , 2006 Pro Se

In the

Supreme Court of the Anited States

MICHAEL G. HOROWITZ, Ph.D.,

Petitioner,

PEACE CORPS,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

APPENDIX TO PETITION

MICHAEL G. HOROWITZ, Ph.D.

6034 NE 32™ Place

Portland. OR 97211

(503) 725-3993

January 16, 2006 Petitioner Pro Se

TABLE OF CONTENTS

Glossary

Appendix A

Opinion, October 28, 2005, 04-5065, U.S. Court

of Appeals for the District of Columbia Circuit... |

Appendix B

Memorandum Opinion, October 12. 2001,

Civil No. 00-848 (TFH), U.S. District Court for

the District of Columbia

Appendix C

Memorandum Opinion, January 6, 2004, 00-848,

U.S. District Court for the District of Columbia. 41

Appendix D

Proposed Findings of Fact and Conclusions of Law,

00-848, adopted by the U.S. District Court for

the District of Columbia, January 6, 2004

Appendix E

Peace Corps Manual (1996), Section 284 at$4.. 71

Appendix F

Appellant’s Motion to Amend Opinion by

Striking a Pejorative Allegation net Found True

in District Court ... and Revising an Ambiguous

Sentence in said Opinion, November 30, 2005,

O46 SOG ok ceca a ea a ls ee Sess > 0-8 89

NOTE

To conform to booklet format, documents reproduced

in Apps. B-E have been optically copied and reformatted;

reasonable care has been applied to proofreading.

Photocopies of documents contained in Apps. B-D can be

found in petitioner’s appellate Appendix (04-5065 6/2/05

104-23, 147-60, 136-146), while a photocopy of the

document contained in App. E can be found in his appellate

Addendum to Reply Br. (6/20/05).

GLOSSARY

KEY PLAYERS IN THE DISPUTE BETWEEN THE PARTIES

(Occupational titles and roles as of March 16, 1999)

NUKU’ALOFA, KINGDOM OF TONGA

Lopeti V. Foliaki, J.D. Partner, Stevenson Nelson

Mitchell Foliaki,

Horowitz’ Counsel

Arturo Giron Country Director, Peace

Corps’ Tonga Post

Michael G. Horowitz, Ph.D. Peace Corps Volunteer,

Tonga Post

Esther Sally Olsonoski Associate Director/Education,

Tonga Post’

ABBREVIATIONS

APCD Peace Corps Associate Country

Director

ASR Administrative Separation Report

MS Manual Section

PCV Peace Corps Volunteer

RPCV Returned Peace Corps Volunteer

Tr. Transcript of Evidentiary Hearing re

Exemption 5, Civ. No. 00-848

UNV Peace Corps’ United Nations

Votunteer program

V’/T Peace Corps Volunteer or Traince

VS/SS Peace Corps’ Office of Volunteer

Services/Special Services

' Olsonoski assumed the position of acting country director by March 17.

(04-5065 6/2/05 App. 35 at 4419-20; 10/15 Tr. 72:24-73:9).

APPENDIX A

Hinited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9,2005 Decided October 28, 2005

No. 04-5065

MICHAEL G. HOROWITZ, PH.D,

APPELLANT/CROSS-APPELLEE

PEACE CORPS,

APPELLEE/CROSS-APPELLANT

Consolidated with

04-5087 and 04-5279

Appeals from the United States District Court

for the District of Columbia

(No. 00cv00848)

Michael G. Horowitz, appearing pro se, argued the cause

and filed the briefs for appellant/cross-appellee.

Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause

for appellee/cross-appellant. With her on the bnef were

Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan,

Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

2 é

Before: EDWARDS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: After choosing to resign from his

position as a Peace Corps volunteer and thereby avoid the filing

of an Administrative Separation Report (ASR) detailing

allegations of sexual misconduct, pro se appellant Dr. Michael

Horowitz challenges the district court’s order allowinz the Peace

Corps to withhold the draft ASR from release under Exemption

5 of the Freedom of Information Act (FOIA). Horowitz also

appeals the district court’s denial of his request for access to the

same document under the Privacy Act. Finally, the Peace Corps

appeals the denial of its attempt to protect the name of the

complainant under FOLA Exemption 6.

We conclude the district court properly exempted the draft

document from release under FOIA Exemption 5 and properly

found the document was not part of a system of records subject

to disclosure under the Privacy Act. However, we conclude

FOIA Exemption 6 also applies; therefore, the name of the

alleged victim is not subject to release as a segregable fact.

]

From 1998 to 2001, Arturo Giron was Peace Corps Country

Director for the Kingdom of Tonga; his duties included supervi-

sion of Peace Corps volunteers stationed in Tonga. On March 7,

1999, a female volunteer told Giron a young Tongan man

claimed he had been the victim of sexual misconduct involving

Michael Horowitz. The young man, a student at ’Atenisi High

School, was 18 or 19 years old and appeared to have been under

18 at the time of the incident.

Giron consulted the Peace Corps Manual and contacted the

General Counsel’s office for advice. He also interviewed the

Tongan student, who repeated substantially the same allegations.

Giron and Sally Olsonoski, another Peace Corps worker, then-

met with Horowitz. Horowitz remembered the incident but

explained that the encounter was consensual and assured Giron

the student had been 18 years old at the time. Olsonoski testified

that Horowitz said, “] always card them,” but acknowledged that

it was difficult to do so in a foreign country. Giron again sought

assistance from the General Counsel’s office, stating in an

e-mail that “[t]here is no clear age of majority [in Tonga], but

homosexual acts are illegal under the law here.” Giron confessed

he was “now completely confused about how to proceed,” and

requested guidance.

Within a week of receiving the volunteer’s report, Giron

prepared “a single, cohesive document” that summarized his

investigations and notes from various meetings, and generally

outlined the events and the actions he had taken. He used the

computer template designed for creating ASRs but completed

only three of the template’s five sections. At that point, accord-

ing to Giron, “no final decision had been made with respect to

the incident and the volunteer involved. We were still in the

process of deliberating.”

On March 16, 1999, Giron e-mailed the document to senior

officials at Peace Corps headquarters, asking them to review the

draft and submit changes and comments. Later that day,

Horowitz informed Giron that he was resigning from the Peace

Corps. Horowitz now claims he resigned only after Giron read

parts of the draft ASR to him, told him a final decision to

administratively separate him had been made, and informed him

that the ASR would be sent to headquarters unless Horowitz

resigned. Giron denies ever roaking a final decision or informing

Horowitz that he had done so. At Horowitz’s request, however,

Giron kept the draft ASR in his office safe.

On June 18, 1999, Horowitz requested a copy of the draft

ASR through FOIA, 5 U.S.C. § 552. The Peace Corps denied his

request on August 17, 1999. On November 15, 1999, Horowitz

administratively appealed the denial, but the Peace Corps again

denied his request on April 19, 2000. Horowitz then filed suit in

the United States District Court for the District of Columbia,

seeking disclosure of the draft ASR under FOIA and the Privacy

Act, 5 U.S.C. § 552a. The Peace Corps contended the draft ASR

was a predecisional document exempt from release under FOIA

and that releasing the student’s name would be a clearly

, unwarranted invasion of his privacy. The Peace Corps also

argued the document was not contained in a system of records

and thus was not subject to release under the Privacy Act.

The district court granted partial summary judgment to the

Peace Corps, ruling that the document was not subject to release

under the Privacy Act, and partial summary judgment to

Horowitz, ruling that release of the student’s name would not be

a Clearly unwarranted invasion of privacy under FOIA. After an

evidentiary hearing, the district court ruled in favor of the Peace

Corps, allowing the document to be withheld as predecisional.

However, the court confirmed that the identity of the student

was a segregable fact that must be released to Horowitz; release

of the name was stayed pending this appeal.

We review orders granting summary judgment de novo.

Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72

F.3d 897, 902 (D.C. Cir. 1996). We will not set aside the district

court’s findings of fact unless they are clearly erroneous, giving

due regard to the district court’s opportunny to judge the

credibility of witnesses. Fed. R. Civ. P. 52(a); see Berger v. Iron

Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1407

(D.C. Cir. 1988).

FOIA provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is

made in accordance with published rules stating the time, place,

fees (if any), and procedures to be followed, shall make the

records promptly available to amy person.” 5 U.S.C.

§ 552(aX(3)(A). The statute also provides a list of exemptions

from this command. 5 U.S.C. § 552(b). “[T]he burden is on the

agency to sustain its action” in claiming these exemptions. 5

U.S.C. § 552(a)(4)(B). Exemption 5 allows agencies to withhold

“inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemp-

tion privileges “those documents, and only those documents,

normally privileged in the civil discovery context.” NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

The privilege is meant to protect “predecisional communica-

tions” from disclosure so as to “prevent injury to the quality of

agency decisions.” /d. at 151. Thus, the exemption “protects

materials that are both predecisional and deliberative.”

Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir.

1993). We previously have stated that “the key question in

Exemption 5 cases [is] whether the disclosure of materials

would expose an agency’s decisionmaking process in such a

way as to discourage candid discussion within the agency and

thereby undermine the agency’s ability to performmts functions.”

Dudman Commc’ns Corp. v. Dep't of the Air Force, 815 F.2d

1565, 1568 (D.C. Cir. 1987). “Finally, even if the document is

predecisional at the time it is prepared, it can lose that status if

it is adopted, formally or informally, as the agency position on

an issue or is used by the agency in its dealings with the public.”

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980).

Whether the draft ASR properly qualified as a deliberative

document was the subject of an evidentiary hearing. The

evidence before the court included section 284 of the Peace

Corps Manual, which outlines the required process for early

termination of service of Peace Corps volunteers; the deposi-

tions of Giron and Horowitz; and the testimony of Giron,

Horowitz, and Sally Olsonoski at the evidentiary hearing. The

manual authorizes administrative separation for conduct ranging

from minor infractions like failing to wear a motorcycle helmet,

to criminal convictions, to espionage. Under these provisions,

the volunteer is entitled to be informed of the specific conduct

at issue, have an opportunity to respond, and be apprised of the

alternative of resignation. The disciplinary options range from

taking no action, to imposing conditions on further service, to

administrative separation. If a volunteer resigns before a final

decision to terminate him is made, the ASR is not completed. If

the volunteer resigns “after the decision to administratively

separate has been made but before the process is completed, the

Administrative Separation Report must be completed and

forwarded” to the Peace Corps’s Office of Volunteer Services.

During the evidentiary hearing, Giron and Olsonoski ©

testified that no final decision was ever made to administratively

separate Horowitz. Giron testified it was “the first time [he] had

encountered [so serious] an incident,” and it was his first

experience with an administrative separation. He sought further

guidance from senior staff in Tonga and consulted on a daily

basis with Peace Corps headquarters, the Office of the General

Counsel, and regional senior staff. He spent “literally hours and

hours on the telephone with Washington, D.C., talking to the

[G]eneral [C]ounsel.” On March 16, 1999, prior to the meeting

where Horowitz announced his intention to resign, Giron

e-mailed the draft document to headquarters with a cover e-mail

that asked the recipients to “review and send comments/changes

to Sally [Olsonoski].” Giron asked that comments be sent to

Olsonoski because he had to leave Tonga to attend a funeral and

he anticipated that she would need to make the final decision in

his absence. Giron testified that he had reached no final decision

prior to the time Horowitz announced his intention to resign, and

that he was unwilling to make a unilateral decision:

[ W]hatever final disposition was going to be reached on this

case was going to be a consensus among all the senior

officials involved, myself included, but also the [O}ffice of

the [G]Jeneral [Cjounsel and the senior staff of the region,

and we had not at that point come to any particular consen-

sus as to which course of action we were going to follow.

According to Giron’s testimony, at no time did Giron tell

Horowitz that he had made a decision to administratively

separate him or that he was on the verge of doing so.

Giron explained that, complying with the provisions of

section 284, he never completed or officially filed the draft ASR

he was crafting. He believed “the opportunity to ‘think aloud’ in

such a draft document” was “an essential part” of the section

284 decision-making process; in his opinion, making such

documents publicly available would deter Country Directors

from creating them and deprive such officials of the benefit of

review and comment from other departments. Horowitz argues,

however, that the document lost its predecisional status by being

adopted as the official agency position regarding his administra-

tive separation; in essence, he contends that Giron had already

decided to terminate his service before he resigned, even though

the decision was not formally executed. After evaluating the

APPENDIX

witnesses’ testimony and credibility, the district court concluded

Giron had not made a final decision about separating Horowitz.

The document was prepared as an aid for Giron’s

decision-making process and for consultation with other Peace

Corps officials. Hence, the document qualified as deliberative

and predecisional.

We are not persuaded the district court’s findings on these

points are clearly erroneous. The draft is remarkably candid.

Moreover, Giron’s thought processes are woven into the

document to such an extent that any attempt to segregate

non-deliberative portions would effectively disclose the content

and context of intra-agency deliberations. Accordingly, as the

document did not lose its predecisional and deliberative status,

it was properly withheld under FOLIA Exemption 5.

In providing exemptions from the general requirement of

disclosure, FOIA also provides that “[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). Thus, the

district court correctly concluded the student’s name, which

could be segregated, was not protected from disclosure by

Exemption 5. That conclusion does not fully resolve the

question of whether the student’s name is nevertheless exempt

from disclosure.

FOIA Exemption 6 allows agencies to withhold “personnel

and medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(6). Horowitz agrees that the ASR qualifies as

a “similar file” as described in Exemption 6; thus, the remaining

question is whether the release of the ASR—specifically, the

portions identifying the student—would be a clearly unwar-

ranted invasion of the student’s privacy. In the district court, the

Peace Corps argued Exemption 6 should apply; however, as

counsel for the Peace Corps acknowledged during oral argu-

ment, the Corps’s desire to be discreet and shield the privacy

interests of all parties may have led the district court to underes-

timate the private interest and overstate the public benefit at

issue. Horowitz’s lack of reticence has allowed the Peace Corps

to correct this defect on appeai.

To determme whether release of a file would result in a

clearly unwarranted invasion of personal privacy, we must

balance the private interest involved (namely, “the individua!’s

right of privacy”’) against the public interest (namely, “the basic

purpose of the Freedom of Information Act,” which is “to open

agency action to the light of public scrutiny”). Dep’t of the Air

Force v. Rose, 425 U.S. 352, 372-73 (1976) (internal quotation

marks omitted).

The focus of the public interest analysis is the citizens’ nght

to know “‘what their government is up to.”” U.S. Dep't of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 773-(1989) (citations omitted);-see also Beck v. Dep't of

Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (stating that the

standard from Reporters Committee “is applicable in the case of

Exemption 6”). Neither “the identity of the requesting party” ner

“the particular purpose for which the document is being re-

quested” is relevant, Reporters Comm., 489 U.S. at 771-72,

because “[a]s a general rule, if the information is subject to

disclosure, it belongs to all.” Nat'l Archives & Records Admin.

v. Favish, 541 U.S. 157, 172 (2004). Hence, release under FOIA

is equivalent to making the information publicly available.

The availability of information through other sources

lessens the public interest in its release through FOIA. See U.S.

Dep't of Def., Dep’t of Military Affairs v. Fed. Labor Relations

Auth., 964 F.2d 26, 29 (D.C. Cir. 1992). If there is no public

interest in the disclosure of certain information, “something,

even a modest privacy interest, outweighs nothing every time.”

Nat’! Ass'n. of Retired Fed. Employees v. Horner, 879 F.2d 873,

879 (D.C. Cir. 1989). “We generally accord Government records

and official conduct a presumption of legitimacy.” U.S. Dep't of

State v. Ray, 502 U.S. 164, 179 (1991). Furthermore, “clear

evidence is usually required to displace” the presumption and

show the presence of a public interest in investigating an

agency. Favish, 541 U.S. at 174.

The public interest in this case is virtually nonexistent.

Horowitz alleges the Peace Corps mistreated him, and that

revealing the student’s name will allow investigation of the

agency’s actions. However, he offered no credible evidence of

misconduct by the Peace Corps; the district court found Giron’s

testimony “forthright” and Horowitz’s testimony “continually

evasive.” Horowitz’s real complaint is that he had to choose

between two unpalatable alternatives. It is difficult to see how

the Peace Corps’s long-established procedure of allowing

volunteers to resign rather than face public charges of miscon-

duct could be deemed improper. Horowitz simply alleges that in

order to prove the Peace Corps’s perfidy, “it may be necessary

to confirm the relation of Complainant, if any, to the Kingdom

of Tonga’s political, military, and/or criminal factions.” Appel-

lant’s Reply Br. at 44. Horowitz offers no further details to

support these extremely speculative allegations; he has not

offered the “clear evidence” required to overcome the presump-

tion that the Peace Corps’s official conduct was proper.’ In no

'Horowitz’s unsupported allegation that the Peace Corps is

protecting the student’s name in order to cover up for its failure to

way would release of the student’s name serve the civic good.

Additionally, Horowitz’s need to obtain the information for a

pending civil suit is irrelevant, as the public interest to be

weighed has nothing to do with Horowitz’s personal situation.

The privacy interest implicated in a case such as this is the

individual’s right to “avoid[{] disclosure of personal matters.”

Reporters Comm., 489 U.S. at 762 (internal quotation marks and

citation omitted).* Under Exemption 6, “the fact that an event

is not wholly private does not mean that an individual has no

interest in limiting disclosure or dissemination of the informa-

tion,” id. at 770 (internal quotation marks and citation omitted),

as “there are few facts that are not at one time or another

divulged to another,” id. at 763.

Even seemingly innocuous information can be enough to

tngger the protections of Exemption 6. In United States Depart-

ment of Defense v. Federal Labor Relations Authority, the

Supreme Court held Exemption 6 shielded the names and home

addresses of agency employees from being released to unions

that requested the lists under FOIA. 510 U.S. 487, 502 (1994).

Because “[m]any people simply do not want to be disturbed at

home by work-related matters,” the Court was “reluctant to

disparage the privacy of the home, which is accorded special

protect Horowitz from the student’s purported blackmail attempt

similarly fails to defeat the presumption of official regulanty.

* In Reporters Committee, the Court examined FOIA Exemption

7(C), applicable to law enforcement files, rather than Exemption 6.

Nevertheless, the Court has held that the difference between the

standards for the two exemptions “is of little import” except when

analyzing “the magnitude of the public interest that is required to

override the respective privacy interests protected by the exemptions.”

U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496

n.6 (1994).

consideration in our Constitution, laws, and traditions.” /d. at

501. Additionally, “other parties, such as commercial advertisers

and solicitors, must have the same access under FOIA as the

unions”; releasing the lists to the unions would have necessitated

giving other parties access as well. Jd. Thus, the Court found

that the privacy interests outweighed the “negligible” public

interest at stake. Jd. at 502.

The scope of privacy protection under FOIA is not the same

as in the constitutional context, Reporters Comm., 489 U.S. at

762 n.13, although being “accorded special consideration in our

Constitution, laws, and traditions” can give additional weight to

a privacy interest. U.S. Dep't of Def., 510 U.S. at 501. Hence,

even if the incident between Horowitz and the student was

consensual, the student might have a privacy interest in avoiding

disclosure of his identity. See generally Lawrence v. Texas, 539

U.S. 558, 567 (2003) (stating that sexual behavior is “the most

private human conduct”).

Victims of sexual assaults have an arguably greater interest

in the protectior uf their privacy. For example, the Sixth Circuit

has reasoned that the occurrence of a rape “implicates both a

private and a public interest, but the details of the rape primarily

implicate a private interest until such time as the public interest

in prosecution predominates.” Bloch v. Ribar, 156 F.3d 673,

685-86 (6th Cir. 1998). The private interest in nondisclosure

may predominate in such a case because of the personal trauma

involved and the moral and social opprobrium disclosure often

presages. The “interest in protecting the victims of sexual

violence from humiliation, among other injures, has prompted

states to pass rape shield laws and to advocate against the

publication of rape victims’ names.” /d. at 685. Similarly,

Federal Rule of Evidence 412 limits the admissibility of

evidence regarding the past sexual behavior or predispositions

of an alleged victim of a sexual offense. “The rule aims to

safeguard the alleged victim against the invasion of privacy,

potential embarrassment and sexual stereotyping that is associ-

ated with public disclosure of intimate sexual details and the

infusion of sexual innuendo into the factfinding process.” Fed.

R. Evid. 412 advisory committee’s note.

In Hunt v. FBI, the Ninth Circuit held that the FBI should

not release files from its internal investigation of an agent who

had been accused of sexual misconduct; even if the agent’s

name was redacted from the files, she would have been identifi-

able based on other information in the files. 972 F.2d 286 (9th

Cir. 1992). Although Hunt involved Exemption 7(C), under

which nly a reasonable expectation of an invasion of privacy

must be shown to prevent releasing information, the court’s

reasoning is still relevant. That court found identification of the

agent could have caused her “great personal and professional

embarrassment,” while not serving a significant public interest,

as “(t]he single file sought . . . will not shed any light on whether

ali such FBI investigations are comprehensive or whether sexual

misconduct by agents is common.” /d. at 288-89.

While we do not confront the constitutional question that

was before the Sixth Circuit in Bloch, the reasoning of the court

aptly describes the contours of the public/private balance at

stake here. We are persuaded that the student’s interest in

avoiding disclosure of his name is at least as strong as the

privacy interest of a government agent accused of sexual

misconduct, and that it is certainly as strong as the interest of

federal employees in avoiding disclosure of their names and

addresses. If released, the student’s name would be associated

not merely with an employer, or even personal sexual miscon-

duct, but with a disputed sexual incident that he claims was not

consensual. Even though the student did reveal his allegation to

two Peace Corps workers, and did not receive an explicit

promise of confidentiality, he still has an interest in avoiding

further dissemination of his identity. Our law uniformly recog-

nizes that strong privacy interests are implicated when dealing

with an individual’s sexual activity, especially when the

individual has reported a sexual assault. Unwanted public

attention could lead to further trauma for the victim, who in this

case did not even choose to subject himself to public scrutiny by

pursuing criminal charges. His choice of virtual anonymity

would be undermined by releasing his identity under FOIA, as

releasing it to one person is equivalent to authorizing its release

to anyone.

Accordingly, with a strong privacy interest in non-disclo-

sure being weighed against a de minimis public interest in the

disclosure, the invasion of privacy resulting from the release of

the student’s name would be “clearly unwarranted.” The Peace

Corps may therefore withhold the student’s name under Exemp-

tion 6.

ill

We turn now to the Privacy Act, which requires any

“agency that maintains a system of records” to allow a request-

ing individual to review and make a copy of “his record or . . .

any information pertaining to him which is contained in the

system.” 5 U.S.C. § 552a(d)(1). The agency must show the

absence of a genuine issue of any material fact in order to be

granted summary judgment. Fed. R. Civ. P. 56(c). “Rule 56(c)

mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). The district court held that Horowitz

was not entitled to the document under the Privacy Act because

the document is neither maintained, nor required to be main-

tained, in a “system of records.” This ruling is unassailable. The

Peace Corps’s regulations dictate that an ASR should not be

maintained in the agency’s records if a volunteer resigns prior

to an official decision to administratively separate him. In fact,

the Peace Corps’s manual states that an ASR should not even be

completed if a volunteer resigns before such a decision is made.

Since Horowitz resigned before any final decision was made, the

report was never completed and—pursuant to the procedure

specified by the manual—was not maintained in the Peace

Corps’s official files.

Nor has Horowitz shown that Giron nevertheless placed the

draft ASR in a “system of records.” The Act defines “system of

records” to mean “a group of any records under the control of

any agency from which information is retrieved by the name of

the individual or by some identifying number, symbol, or other

identifying particular assigned to the individual.” 5 U.S.C.

§ 552a(aX(5). We have held that the words “is retrieved”

“suggest strongly that a group of records should generally not be

considered a system of records unless there is actual retrieval of

records keyed to individuals.” Henke v. U.S. Dep't of Com-

merce, 83 F.3d 1453, 1460 (D.C. Cir. 1996). In the district court,

the Peace Corps presented affidavits from two of its officials

stating that they had searched the Peace Corps’s records and had

found no ASR regarding Horowitz. Horowitz presented no

evidence to counter this assertion. He alleges a copy of the draft

ASR was stored in Giron’s safe for some period of time, a

contention the Peace Corps does not deny, and also claims the

draft ASR was retrieved by his name at least one time. That

“retrieval,” however, occurred when Giron e-mailed the draft

ASR to headquarters, and thus involved an electronic copy, not

the physical document in the safe. Horowitz has not shown that

files in the safe are, in practice, retrieved by individuals’ names;

hence, he has not “establish{ed] the existence of an element

essential to his case,” namely, whether the safe qualifies as a

system of records. The district court properly granted summary

judgment to the Peace Corps on the ground that the document is

not subject to release under the Privacy Act.’

Finally, we note that because the document is predecisional,

it can attest to nothing. It has no official existence and continues

to be held only because of pending litigation. In fact, the Peace

Corps indicated at oral argument that the document will be

destroyed once it is no longer needed in relation to Horowitz’s

various Civil suits.

Horowitz raises several other points on appeal. First, he

claims that the district court abused its discretion in choosing to

review a copy of the draft ASR in camera after conducting the

evidentiary hearing. A court “may examine the contents of such

agency records in camera to determine whether such records or

any part thereof shall be withheld under any of the exemptions”

which apply to FOIA. 5 U.S.C. § 552(a)(4)(B). The decision of

whether to conduct an in camera review of a document is within

the trial court’s “broad discretion” and is reviewed only for

abuse of discretion. Spirko v. U.S. Postal Serv., 147 F.3d 992,

996 (D.C. Cir. 1998). Horowitz claims reviewing a document

containing such disturbing allegations necessarily prejudiced the

district court judge against him. However, he points to no

credible evidence relating to this claim or to any abuse of

discretion in reviewing the document. Indeed, the district court

refused the Peace Corps’s request to view the document at an

> The status of the copy of the draft ASR that Giron e-mailed to

headquarters is not before us. Horowitz has not argued that the Peace

Corps’s e-mail system qualifies as a “system of records” under the

Privacy Act. Our ruling is confined solely to the copy of the ASR that

was stored in Giron’s safe.

earlier point in the proceeding, choosing instead to wait until

after the evidentiary hearing to do so. Horowitz’s claim on this

point is without merit.

Additionally, Horowitz now claims the Fifth and Sixth

Amendments, as well as the Admunistrative Procedure Act,

entitle him to know the allegations contained in the draft ASR.

“Tt is well settled that issues and legal theories not asserted at the

District Court level ordinarily will not be heard on appeal.”

District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.

Cir. 1984). At the same time, “[t]here may always be excep-

tional cases or particular circumstances which will prompt a

reviewing or appellate court, where injustice might otherwise

result, to consider questions of law which were neither pressed

nor passed upon by the court or administrative agency below.”

Hormel v. Helvering, 312 U.S. 552, 557 (1941). Horowitz

presents no compelling reason why he was not able to present

these issues in the district court; therefore, he may not assert

these claims on appeal.

Finally, Horowitz claims the district court abused its

discretion in two ways: by denying his motion to present more

evidence after the court’s ruling was entered, and by adopting

the Peace Corps’s findings of fact. “[U]pon such terms as are

just,” Federal Rule of Civil Procedure 60(b) allows a party to be

relieved from a fina! judgment due to, among other reasons,

mustake, surprise, or misconduct of an adverse party. We review

the denial of a Rule 60(b) motion for abuse of discretion unless

the decision was rooted in an error of law. Andrx Pharm. Inc. v.

Biovail Corp. Int'l, 256 F.3d 799, 805 (D.C. Cir. 2001).

Horowitz points to no misconduct on the part of Peace Corps’s

counsel, nor does he explain why any surprise was unjust rather

than a result of a mistake by his attorney. Similarly, Horowitz’s

examples of “clear error” in the findings adopted by the court

are either immaterial or based on evidence that the court found

to be more credible than the evidence Horowitz presented.

Hence, Horowitz has not shown that the district court abused its

discretion in either instance.

For the above reasons, we hold that the Peace Corps may

withhold the student’s identity from release under FOIA

Exemption 6. In all other respects, we affirm the judgments of

the district court.

So ordered.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D., )

)

Plaintiff, )

)

v. Civ. No. 00-0848 (TFH)

)

PEACE CORPS, )

)

Defendant. )

FILED

OCT 12 2001

NANCY MAYER WHITTINGTON, CLERK

Pending before the Court are cross-motions for summary

judgment by the plaintiff, Michael Horowitz, Ph.D., and the

defendant, the U.S. Peace Corps. Pursuant to the Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5

U.S.C. § 552a, Horowitz seeks the release of one document in the

possession of the Peace Corps involving his March 1999

resignation from service with the defendant. The Peace Corps has

refused to release the document, invoking two exemptions of the

FOIA and arguing the inapplicability of the Privacy Act. Upon

careful consideration of both motions, the statements of material

facts, the oppositions and replies thereto, and the entire record

herein, the Court will grant in part and deny in part both motions.

I. BACKGROUND

Until 1999, Horowitz was a Peace Corps volunteer in the

Kingdom of Tonga, assigned to a Tongan educational institution

as an educator. Pl.'s Statement of Facts 4 1; Def's Corrected

Statement of Facts € 1. On March 7, 1999, the Peace Corps

Country Director in Tonga, Arturo Giron, learned of allegations

made by a third party of personal conduct on the part or Horowitz

that in Giron's view constituted inappropriate behavior for an

American Peace Corps Volunteer in Tonga, serving as an educator

of Tongan youth. Def. 's Corrected Statement of Facts { 2; PI.'s

Statement of Facts 4 4, Pl.'s Disputed Facts § 1. Over the next few

days, Giron conferred with numerous officials in Peace Corps

headquarters, including attorneys in the Office of General

Counsel, the Director of the Office of Special Services, and

representatives from the Inter-American & Pacific Region,

deliberating about the appropriate action to take in response to the

allegations. Def.'s Corrected Statement of Facts § 3.

The information Giron learned concerned him. His

professional opinion was that, within Tongan society, Horowitz as

an American schoolteacher occupied a position of prestige, trust,

and authority, and his alleged behavior appeared to have abused

that position. Moreover, Giron claims that a senior member of his

staff informed him that, if true, Horowitz's behavior was illegal

and extremely offensive under the laws and cultural mores of

Tonga. Def.'s Corrected Statement of Facts J 5. Giron therefore

decided to initiate an internal administrative process for formally

reviewing and adjudicating allegations of conduct by Peace Corp

volunteers that could result in disciplinary action, including

administrative separation from the Peace Corps volunteer service.

That process is governed by Peace Corps Manual Section 284

("MS 284"). Def.'s Corrected Statement of Facts § 6.

On March 12, 1999, Giron and Horowitz met. As required

by MS 284, Giron advised Horowitz that he was initiating a MS

284 process based on the allegations, explained the administrative

process, and informed Horowitz that he might decide to

administratively separate him, which Horowitz would be entitled

to appeal. Id. 4 7.

For several days after the meeting, Giron continued to

gather facts and seek guidance from Peace Corps headquarters. Id.

4 8. Having been advised by Peace Corps attorneys to prepare a

draft of an administrative separation report ("ASR") and send it to

-the attorneys and other agency officials, Giron prepared the

document sometime in mid-March 1999. Id. 4 11-12.

On March 16, 1999, Giron and the Associate Peace Corps

Director in Tonga, Sally Olsonoski, met with Horowitz. They

discussed the allegations that had led to the MS 284 process and

the possibility of Horowitz's termination. Giron also discussed

some of the document's content with Horowitz. P1.'s Statement of

Facts 4-5; Def.'s Corrected Statement of Facts 4 17-18. At the

end of the March 16, 1999 meeting, Horowitz expressed his intent

to resign. Def.'s Corrected Statement of Facts § 19. On March 17,

1999, Horowitz submitted his signea resignation from service with

the Peace Corps. Id.; P1.'s Statement of Facts 4 6.

By letter dated June 18, 1999, Horowitz sent a Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552, request to the Peace

Corps for "the partially-completed or completed Administrative

Separation Report regarding Dr. Horowitz, apparently written by

the Country Director of your Tongan post, Mr. Arturo Giron,

sometime between the 10th and 18th of March 1999." Second Am.

Compl. Attach. A; P1.'s Statement of Facts § 3; Def.'s Corrected

Statement of Facts § 24. The Peace Corps denied the request on

August 17, 1999. PI.'s Statement of Facts 4 7; Def.'s Corrected

Statement of Facts § 25. Horowitz administratively appealed the

denial on November 15, 1999, which was denied on Apmil 19,

2000. Pl.'s Statement of Facts 8-9; Def.'s Corrected Statement

of Facts € 26-27.

Horowitz then filed the instant lawsuit seeking disclosure

of the document drafted by Giron in mid-March 1999, pursuant to

FOIA, 5 U.S.C. § 552(a)(3)(A), and the Privacy Act, 5 U.S.C. §

552a(d)(1). The Peace Corps refuses to disclose the document,

claiming that it is exempt from FOIA disclosure under both the

deliberative process pnvilege of Exemption 5, 5 U.S.C. §

552(b)(S), and the personal privacy exclusion of Exemption 6, 5

U.S.C. § 552(b)(6). The Peace Corps also contends that

Horowitz's Privacy Act claim fails because the document is neither

maintained nor required to be maintained in a system of records, 5

U.S.C. § 552a(a)(5). Both parties have moved for summary

judgment pursuant to Federal Rule of Civil Procedure 56.

Il. DISCUSSION

A. Legal Standard

Summary judgment is the usual means for disposing FOIA and

Privacy Act cases, but the Court will grant summary judgment

only if the moving party proves that no substantial and material

facts are in dispute and that it is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Founding Church of Scientology v.

NSA, 610 F.2d 824, 836 (D.C. Cir. 1979); McGehee v. CIA, 679

F.2d 1095, 1101-02 (D.C. Cir. 1983).

B. FOIA

The FOIA imposes a general rule of disclosure upon

request by the public of records generated by federal agencies. 5

U.S.C. § 552(a)(2); NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

136-37 (1975) (citing EPA v. Mink, 410 U.S. 73.79-80 (1973)):

Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 F.3d 598,602

(D.C. Cir. 2001). However, an agency may withhold information

that falls within one of FOIA's nine exemptions. 5 U.S.C. §

552(b): Sears, Roebuck & Co., 421 U.S. at 136-37. The Court will

determine de novo the question of ordering or enjoining a

government agency's production of documents, and the agency

bears the burden of justifying its withholding. 5 U.S.C. §

552(a)4\(B): Dep't of Justice v. Reporters Comm. for Freedom of

the Press, 489 U.S. 749, 755 (1989). In this case, the Peace Corps

has invoked Exemptions 5 and 6 to justify its withholding the

document sought by Horowitz.

1. Exemption 5

Exemption 5 protects from disclosure "inter-agency or

intra-agency memorandums or letters which would not be

available by law to a party other than an agency in litigation with

the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has

construed this language "to exempt those documents, and only

those documents, normally privileged in the civil discovery

context.” Sears, Roebuck & Co., 421 U.S. at 149; see also Martin

v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir.

1987). One privilege incorporated into Exemption 5, and relied

upon by the Peace Corps here, is the deliberative process, or

executive, privilege, which serves "to prevent injury to the quality

of agency decisions.” Sears. Roebuck & Co., 421 U.S. at 149-52;

see also, e.g., Russell v. Dep't of the Air Force, 682 F.2d 1045,

1047-48 (D.C. Cir. 1982); Coastal States Gas Corp. v. Dep't of

Energy, 617 F.2d 854, 858 & n.2, 866-69 (D.C. Cir. 1980). Three

policy bases underlie this privilege:

First, it protects creative debate and candid consideration

of alternatives within an agency, and, thereby, improves

the quality of agency policy decisions. Second, it protects

the public from the confusion that would result from

premature exposure to discussions occurring before the

policies affecting it had actually been settled upon. And

third, it protects the integrity of the decision-making

process itself by confirming that "officials should be

judged by what they decided(,) not for matters they

considered before making up their minds.”

Jordan v. Dep't of Justice, 591 F.2d-753, 772-73 (D.C. Cir. 1978),

quoted in Russell, 682 F.2d at 1048. In other words, the privilege

"protect[s] the decisionmaking processes of government agencies’

and ‘encourage[s] the frank discussion of legal and policy issues’

by ensuring that agencies are not ‘forced to operate in a fishbowl."

Wolfe v. HHS, 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc),

quoted in Mapother v, Dep't of Justice, 3 F.3d 1533, 1537 (D.C.

Cir. 1993). Consistent with the FOIA's strong policy of disclosure,

however, "Exemption 5 is to be construed ‘as narrowly as

consistent with efficient Government operation.” Petroleum Info.

Corp.. 976 F.2d at 1434 (quoting Mink, 410 U.S. at 87).

To qualify under this privilege, a document must be both

"predecisional" and "deliberative." Mapother, 3 F.3d at 1537

(citing Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d

1429, 1434 (D.C. Cir. 1992)); Coastal States, 617 F.2d at 866. "A

document is predecisional if it was 'prepared in order to assist an

agency decisionmaker in arriving at his decision,’ rather than to

support a decision already made." Petroleum Info. Corp., 976 F.2d

at 1434 (quoting Renegotiation Bd. v. Grumman Aircraft, 421

U.S. 168, 184 (1975)). And the "[mJaterial is deliberative if it

‘reflects the give-and-take of the consultative process.’ " Id.

(quoting Coastal States, 617 F.2d at 866)). As explained by the

Court of Appeals for this Circuit some time ago:

In deciding whether a document should be protected by the

privilege we look to whether the document is

"predecisional" — whether it was generated before the

adoption of an agency policy — and whether the document

is "deliberative" — whether it reflects the give-and-take of

the consultative process. The exemption thus covers

recommendations, draft documents, proposals, suggestions,

and other subjective documents which reflect the personal

opinions of the writer rather than the policy of the agency.

Documents which are protected by the privilege are those

which would inaccurately reflect or prematurely disclose

the views of the agency, suggesting as agency position that

which is as yet only a personal position. To test whether

disclosure of a document is likely to adversely affect the

purposes of the privilege, courts ask themselves whether

the document is so candid or personal in nature that public

disclosure is likely in the future to stifle honest and frank

communication within the agency; ... We also ask whether

the document is recommendatory in nature or is a draft of

what will become a final document, and whether the

document is deliberative in nature, weighing the pros and

cons of agency adoption of one viewpoint or another.

Finally, even if the document is predecisional at the time it

is prepared, it can lose that status if it is adopted, formally

or informally, as the agency position on an issue or is used

by the agency in its dealings with the public.

Coastal States, 617 F.2d at 866.

The Peace Corps argues that the document at issue here is

both predecisional and deliberative. In its view, the document is

predecisional because it never made a decision respecting

Horowitz's administrative separation from service with the Peace

Corps. Horowitz's resignation terminated the administrative

process for considering Horowitz's separation before it was

completed, thereby rendering a final decision unnecessary. For

support, the Peace Corps has proffered a declaration from Giron,

stating that he had made no decision respecting Horowitz's

administrative separation:

Although the draft report reflects my preliminary thinking

about these issues, I never made any final conclusions of

fact in connection with the allegations against Plaintiff, and

I never determined what, if any, disciplinary action was

warranted. Before making a final decision on these matters,

I would have waited for Peace Corps headquarters officials

to complete their review and evaluation of the draft

document and to forward thst recommendations to me.

Counsel from Peace Corps treadquarters officials would

have significantly influenced my fact finding, analysis,

final decision, and the content and form of any final report

explaining my final decision.

Def.'s Mot. Ex. 1 (Decl. of Arturo Giron) 22-23; see also id.

«¢€ 7.24 Giron also states that at the March 16, 1999 meeting, "I

told [Horowitz] that I had not yet made a final decision whether to

administratively separate him or take any other action. . . . I did

not tell him that I would separate him if he did not resign. I did not

give him a copy of the draft document I had e-mailed to

Washington, or any portion of it." Id. § 18. The Peace Corps

further contends that the document is deliberative because it is

merely a first draft of an ASR, created by Giron to serve as a

working document for further intra-agency discussion,

contemplation, and revision. As Giron states,

Although I had not yet made any decision as to my

recommendations regarding this matter, Peace Corps

attorneys asked me to prepare a first draft of an

administrative separation report and send it to them and

other agency officials with whom I was working on this

matter. I prepared such a draft report, which I understood

would serve as a working document for further discussion.

The draft document reflects a snapshot of my then-current

thinking about one possible decision I could make

concerning this matter, at a point in time when I was in the

midst of on-going deliberations with Peace Corps lawyers

and other Peace Corps headquarters officials concerning

the entire situation and an appropriate agency response.

The draft document constituted my first attempt to sift

through the evidence and determine what facts might be

relevant and appropriate to include in a report, and my first

attempt to articulate why those facts might support an

administrative separation.

Id. €¥ 12-13.

Horowitz counters that the document created by Giron is

neither predecisional nor deliberative because as a matter of

practical reality, the decision to terminate him was made before he

resigned and that decision is embodied in the document he now

seeks. He offers two declarations of his own to support his claim

that Giron had made a decision to administratively separate him

prior to his resignation:

I attended a final meeting on March 16, 1999 with the

Country Director. He informed me at that time that he had

finally and unequivocally decided to administratively

separate me. He showed me the Administrative Separation

Report that had been prepared and read telling portions of

it to me. He warned me that the report would be lodged

with headquarters within eighteen hours, at which time it

would become accessible to all United States agencies. . . .

At no time did the Country Director give any indication

that the Post's decision to separate me or the

Administrative Separation Report justifying that decision

was provisional or subject to any further review within the

Peace Corps. At all times, he represented both the Post's

decision and the Report as the final judgment regarding my

continued service.

Pl.'s Mot. Ex. A (Decl. of Michael G. Horowitz) #9 11-12; P1.'s

Opp'n Ex. F (Second Decl. of Michael G. Horowitz) § } { ("Mr.

Giron left absolutely no doubt during our final meetin z on March

16th that he had reached a final decision to separate me from

Peace Corps service. In fact, I recall he began that meeting by

saying, ‘Michael, I've decided to administratively separate you."").

The plaintiff additionally offers a declaration from his lawyer in

Tonga, Lopeti Vitolio Foliaki, who states that he met with Giron

alone on March 15, 1999, at which time he "asked Mr. Giron if

Dr. Horowitz would be administratively separated. Mr. Giron

unequivocably [sic] confirmed that the administrative separation

would occur and even indicated that Dr. Horowitz would be

separated within the next day or two.” Id. Ex. B (Decl. of Lopeti

Vitolio Foliaki) §* 6-7. In conjunction with this evidence that

Giron had made a decision to administratively separate him,

Horowitz emphasizes the fact that Giron was the ultimate decision

maker in this situation; he had full authority, and thus needed no

other approval, to administratively separate Horowitz.

Notwithstanding his resignation, therefore, Horowitz contends that

the decision to administratively separate him from service with the

Peace Corps had already been made as a practical matter.

In light of this conflicting evidence of whether Giron had

decided to administratively separate Horowitz at the time he

drafted the document, the Court concludes that summary judgment

for either party is inappropriate at this juncture. As a predicate for

determining whether the document in question is predecisional,

the timing of such a decision — if it was made at all — is obviously

a significant material fact. And because the parties have submitted

conflicting evidence on when, indeed whether, a decision was

made by Giron, a genuine issue of material fact exists, precluding

summary judgment on whether Exemption 5 should or should not

apply. In particular, the Court is unable — without making findings

of fact — to determine whether the document was "prepared in

order to assist [Giron] in arriving at his decision,’ rather than to

support a decision already made [by him].” Petroleum Info. Corp.,

976 F.2d at 1434 (quoting Renegotiation Bd., 421 U.S. at 184).

Accordingly, both motions will be denied on this issue.

2. Exemption 6

Exemption 6 permits the government to withhold

"personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). As a threshold matter, therefore,

the material in question must qualify as "personnel and medical

files and similar files.” Id. If the material qualifies, the inquiry

turns to whether disclosure "would constitute a clearly

unwarranted invasion of personal privacy,” id., which requires a

balancing of the public's ri zht to disclosure against the individual's

nght to privacy. Dep't of the Air Force v. Rose. 425 U.S. 352, 372

(1976): Lepelletier v. FDIC, 164 F.3d 37, 46 (DC. Cir. 1999)

("[A] court must weigh the 'pnvacy interest in non-disclosure

against the public interest in the release of the records in order to

determine whether, on balance, the disclosure would work a

clearly unwarranted invasion of personal privacy.’ ") (quoting Nat'l

Ass'n of Retired Fed. Employees v. Homer, 879 F.2d 873, 874

(D.C. Cir. 1989)); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984).

"The burden is on the agency to persuade the court that the

exemption is appropriate.” Ripskis, 746 F.2d at 3 (citing Getman v.

NLRB, 450 F.2d 670 (D.C. Cir. 1971)).

Horowitz does not dispute that the identity of his accuser

qualifies as similar files for the purposes of Exemption 6, and the

Court has no reason to conclude otherwise. The Supreme Court has

given the phrase "similar files” a broad interpretation, including

“all information that applies to a particular individual." Dep't of

State v. Washington Post Co., 456 U.S. 595, 602 (1982); accord

Lepelletier, 164 F.3d at 46. The protection covers all personal

information, "even if it is not embarrassing or of an intimate

nature.” Homer, 879 F.2d at 875. Thus, the Court has little

difficulty determining that the third party identity here qualifies as

a similar file for the purposes of Exemption 6.

The Couri therefore must next determine whether

disclosure “would constitute a clearly unwarranted in ‘asion of

personal privacy.” 5 U.S.C. § 552(b)(6). This inquiry requires an

examination of whether "disclosure would compromise a

substantial, as opposed to a de minimis, privacy interest. If no

significant privacy interest is implicated ... FOLA demands

disclosure.” Homer, 879 F.2d at 874; accord Ripskis, 746 F.2d at 3

(stating that Court must determine whether "disclosure of the

requested information [would] compromise substantial privacy

interests; if privacy interests in given information are de minimis

disclosure would not amount to a ‘clearly unwarranted in sion of

personal privacy,’ [5 U.S.C. § 552(b)(6)], in light of FOLA's broad

policy favoring disclosure"). The threats to privacy interests must

be "more palpable than mere possibilities.” Rose, 425 U.S. at 380

n.19. But there may be several "links in the causal chain" from

disclosure to invasion of privacy if such harm is a substantia.

probabiliny. Homer, 879 F.2d at 878.’

As the court explained

The Court finds that the Peace Corps has made a showing,

at best, of only a de minimis privacy interest. The Peace Corps

argu ¢s that "the disclosure of identifying information about private

third parties, and in connection with the highly private, sensitive

matters they may have disclosed to the Peace Corps regarding the

allegations concerning plaintiff's sexuai conduct, would constitute

a clearly unwarranted invasion of personal privacy while revealing

little or nothing about the agency's own conduct." Def.'s Opp'n at

10. And while there may not have been a confidentiality agreement

between the third-party complainant and the Peace Corps per se, the

defendant contends, the Peace Corps did not represent that it would

release the information to the general public. Cf. Alliance

for the Wild Rockies v. Dep't of Justice, 53 F. Supp. 2d 32, 33, 36

(D.D.C. 1999) (requiring the release of the identities of individuals

who submitted written comments to a proposed rulemaking

regarding the reintroduction of the grizzly bear into portions of

Idaho and Montana, in part because the information was submitted

voluntarily and because the government "made it abundantly clear

in its notice that the individuals submitting comments to its

rulemaking would not have their identities concealed"). Horowitz

rejoins that there is no discernable privacy interest at stake here;

there was no confidentiality agreement and accordingly no

expectation of privacy, and the third-party complainant voluntarily

offered information to the Peace Corps. While the Court

recognizes that the underlying allegations against the plaintiff

involve "highly private, sensitive matters,” as the defendant points

out, this fact alone does not somehow demonstrate that “disclosure

In virtually every case in which a privacy concern is implicated, someone

must take steps after the initial disclosure in order to bring about the

untoward effect. Disclosure does not, literally by itself, constitute a harm; tt

is the requester’s (or another's) reaction to the disclosure that can stung. This

is only more obvious where disclosure of the information invades someone's

privacy not because it 1s embarrassing but because it invites unwanted

mtrusions.

Homer. 879 F.2d at 878.

would compromise a substantial, as opposed to a de minimis,

privacy interest." Homer, 879 F.2d at 874. This is particularly the

case where the underlying accusations that involve private and

sensitive matters were made against the plaintiff, as opposed to the

third-party complainant whose privacy interests the defendant now

seeks to protect. Without a much more substantial showing,

therefore, the Court can find nothing more than an implicit, yet

minimal, privacy interest of the third-party complainant.’

The Court also finds a minimal public interest in the

release of the third party's identity. "[[]n assaying the public

interest, [the Court] must examine 'the nature of the requested

document and its relationship to the basic purpose of [FOIA] to

? This Circuit has recognized that "the privacy interest of an individual

in avoiding the unlimited disclosure of his or her name and address is

significant, as several other circuits have held." Homer, 879 F.2d at 875

(collecting cases). But the Peace Corps here provides no basis for

determining how disclosure in this case would compromise a

substantial privacy interest. It has provided no information about

potential harassment or safety concerns, for example. Cf. ¢.g., Hudson

v. Dept of the Army, No. 86-1114, 1987 WL 46755, *2-3 (D.D.C

Jan. 29, 1987) (finding substantial privacy interest for exempting from

FOIA request the name, rank, military organization, address, and Army

Post Office number of active duty military personnel in Europe, the

Middle East, and Africa who had registered motor vehicles, in part,

because the court "would have to be blind in order to deny that the

information could be used by terrorists and their supporters in targeting

servicemen and women, locating sensitive units, car bombing attacks,

and general harassment of United States military personnel” and

because the court is "forced to consider not only the precise

information requested but the possible effects such release will have on

the physical safety and well-being of those affected"); Homer, 879

F.2d at 876-77 (stating that whether disclosure 1s a “significant or a de

minimis threat depends upon the charactenstic(s) revealed by virtue of

being on the particular list, and the consequences likely to ensue” and

finding that "disclosure of the information requested here would

interfere with the subjects’ reasonable expectations of undisturbed

enjoyment in the solitude and seclusion of ther own homes”)

open agency action to the light of public scrutiny.” Homer, 879

F.2d at 878 (quoting Reporters Comm., 489 U.S. at 771); accord

Rose, 425 U.S. 372. In addition, the Supreme Court has stated that

FOJA's

basic policy ... focuses on the citizens rights’ to be informed

about "what their government is up to.” Official

information that sheds light on an agency's performance of

its statutory duties falls squarely within that statutory

purpose. That purpose, however, is not fostered by

disclosure of information about private citizens that is

accumulated in various governmental files but that reveals

little or nothing about an agency's own conduct.

Reporters Comm., 489 U.S. at 773, quoted in Homer, 879 F.2d at

878-79; Getman, 450 F.2d at 680 (stating that FOIA "was designed

in part to ‘provide the means by which the people of this country

can become informed and thus be able to scrutinize the activities

and operation of their Government.""); Gannett Sa ;

Network, Inc. v. Dep't of Educ., 1990 WL 251480, at *6 (D.D.C.

Dec. 21, 1990) (evaluating whether the information requested under

FOIA reveals anything about government operations). The Peace

Corps, needless to say, argues that there is no public interest at all

in the release of the third party's identity; "[i]t would simply

confirm or deny the identities of the individuals involved in the

[sic] Giron's investigation into the allegations against the plaintiff.”

Def's Opp'n at 12. Horowitz counters that "[d]isclosure of the

identity of the complainant in this case will reveal useful

information about the kind of individual Defendant chose to find

credible in reviewing the allegations made against Dr. Horowitz

and in deciding his future as a Peace Corps volunteer and, thus,

shed light on how the agency's component in Tonga conducts its

oversight of volunteers.” P1.’s Mot. at 14-15. The Court concludes

that the release of the identity of the plaintiff's accuser here may

benefit the public by permitting an independent investigation of the

defendant's treatment of the plaintiff, and therefore, may reveal

something about Peace Corps operations. The Court notes,

however, that any such public interest appears to be rather limited

as it pertains to events primarily involving an individual rather

than the public at large, and the public's opportunity to learn what

the Peace Corps "is up to," Reporters Comm., 489 U.S. at 773,

thus is only a circumscribed possibility.

Having identified the relevant interests, the Court must

balance the harm of disclosure against the benefit to the public.

Rose, 425 U.S. at 372; Lepelletier, 164 F.3d at 46; Homer, 879

F.2d at 874; Ripskis, 746 F.2d at 3. In balancing the interests, the

Court notes that the "clearly unwarranted” language of Exemption

6 “weights the scales in favor of disclosure.” Ripskis, 746 F.2d at

3. Despite the fact that the public interest in disclosure is limited

in this case, the Court has found only a de minimis privacy

interest. Because the balance favors disclosure, the Court must

conclude that disclosure would not amount to a “clearly

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6):;

Horner, 879 F.2d at 874; Ripskis, 746 F.2d at 3. Accordingly, the

Court will order disclosure of the identity of the third-party

complainant.

C. Privacy Act

Horowitz also seeks the release of the document drafted by

Giron under the Privacy Act, 5 U.S.C. § 552a(d)(1). In pertinent

part, the Privacy Act states:

Each agency that maintains a system of records shall (1)

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 and upon his request, a person of

his own choosing to accompany him, to review the record

and have a copy made of all or any portion thereof in a

form comprehensible to him, except that the agency may

require the individual to furnish a wnitten statement

authorizing discussion of that individual's record in the

accompanying person's presence

Id. The Privacy Act defines “record” to mean

any item, collection, or grouping of information about an

individual that is maintained by an agency, including, but

not limited to, his education, financial! transactions,

medical history, and criminal or employment history and

that contains his name, or the identifying number, symbol,

or other identifying particular assigned to the individual,

such as a finger or voice print or a photograph.

Id. § 552a(a)(4). And the Privacy Act defines "system of records”

as "a group of any records under the control of any agency from

which information is retrieved by the name of the individual or by

some identifying number, symbol, or other identifying particular

assigned to the individual.” Id. § 552a(a){5).

There is no real debate between the parties about the fact

that the document at issue here is a "record" for purposes of the

Privacy Act, as it contains information about Horowitz, including

his name and his employment history, and has been maintained by

the Peace Corps, at least for the purposes of this litigation. The

Peace Corps, however, argues that the Privacy Act does not

require the release of the document to Horowitz because jt has not

been maintained in a “system of records." 5 U.S.C. § 553&(d)(1),

(a5). According to the Peace Corps, no final ASR was filed with

the Peace Corps's Office of Special Services ("OSS") because

under the MS 284 process, no ASR is to be completed if a Peace

Corps volunteer resigns prior to any decision on administrative

separation. Def.'s Mot. Ex. 4A (Peace Corps Manual, MS 284:

Earl; Termination of Service) § 4.5.2 ("Ifa V/T

[Volunteer/Trainee] resigns before the decision to administratively

separate has been made, the Admunistrative Separation Report

should not be completed."). The System Manager for OSS records

has reviewed the OSS records for all Administrative Separation

Reports for the years 1995 to the present and confirms that the

record does not exist in its system of records. Def.'s Mot. at 10-11,

Ex. 6 (Decl. of Mary Gutmann) €f 3-4. Nor is the document

located in Horowitz's in-country volunteer file. Id. at 11, Ex. 7

(Decl. of Mary Saucier) © 2-3

Horowitz does not dispute the fact that the document

cannot be located in the OSS system of records or in his in-country

volunteer file, stating in fact in his FOLA request that "it's likely

the report continues to be stored in the Country Director's safe,

which sits against the north wall of his office.” Def.'s Mot. Ex. 5A

(6/18/99 Letter from Alan F. Neckritz to the Peace Corps). He

contends, however, that the only reason the document is not in the

OSS or in-country volunteer files is simply because the defendant

chose not to place it there, opting instead to play a "cat-and-

mouse-hide-the-record game.” Pl.'s Mot. at 17. Because the record

exists and is accessible under his name, Horowitz claims, he is

entitled to it.

The Court will grant summary judgment for the defendant

on this issue at this time. There is no genuine dispute between the

parties about the fact that the document has not been filed with the

OSS or placed in the plaintiff's in-country volunteer file. Despite

his allegations, Horowitz has provided no evidence whatsoever

that the Peace Corps is playing some devious game with the

document. To the contrary, all of the evidence in the record at this

time demonstrates, and the plaintiff does not contest, that the

document was in fact created as part of the MS 284 process. See,

e.g., Def.'s Mot. Ex. | (Decl. of Arturo Giron) {9 7-24. Nothing

about that process requires the filing of documentation in a

volunteer's in-country file, and the plaintiff has provided no

argument that the Peace Corps is otherwise required to file the

report drafted by Giron in that file system. Rather, it is undisputed

that under the MS 284 process, depending on whether a volunteer

is administratively separated or whether they resign, an ASR either

must be completed and filed with OSS or must not be completed at

all. See Def.'s Mot. Ex. 4A (Peace Corps Manual, MS 284: Early

Termination of Service) § 4.5.2." As noted above, the parties have

* The Peace Corps Manual specifically requires an ASR to be filed after

administrative separation, see Def.'s Mot. Ex. 4A (Peace Corps Manual, MS

284: Early Termination of Service) § 9.0, but provides that:

e Ifa V’T [Volunteer’Trainee] resigns before the decision to

a genuine dispute concerning whether a decision was made to

administratively separate Horowitz, and the Court assumes that

both sides have argued and presented evidence on this issue in

good-faith candor. Until the timing of a decision to

administratively separate Horowitz — if it was made at all — is

resolved as a factual matter, there is no basis on which the plaintiff

can claim the defendant was required to file a report with the OSS.

And because it is an undisputed fact that the document has been

maintained neither in the OSS system of records nor in the

plaintiff's in-country volunteer file, the Court will not order the

document's release under the Privacy Act at this time and will

accordingly grant the defendant's motion for summary judgment

on this issue.

administratively separate has been made, the Administrative

Separation Report should not be completed.

e Ifa V/T resigns after the decision to administratively separate has been

made but before the process has been completed, the Admunistrative

Separation Report must be completed and forwarded to VS/SS.

e Ifa V/T has already been administratively separated, the option of

resignation is still available with the concurrence of the Deciding

Official. The completed Administrative Separation Report must be

forwarded to VS/SS.

Id. § 4.5.2.

Ill. CONCLUSION

For the foregoing reasons, the Court will grant in part and

deny in part both parties’ motions. Specifically, the Court will deny

both parties’ motions for summary judgment as they pertain to

Exemption 5 of the FOIA. The Court will, however, grant the

plaintiff's motion for summary judgment on the issue of

Exemption 6 of the FOIA. Accordingly, the Court will order the

defendant to release the third-party complainant's identity. Finally,

the Court also will grant the defendant's motion for summary

judgment on the plaintiff's Privacy Act claim. An appropriate order

will accompany this Memorandum Opinion.

Thomas F. Hogan

Chief Judge

October 10, 2001

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D., _)

)

Plaintiff, )

)

v. Civ. No. 00-0848 (TFH)

)

PEACE CORPS, )

)

Defendant. )

FILED

OCT 12 2001

NANCY MAYER WHITTINGTON, CLERK

U.S. OS RCT COURT

ORDER

For the reasons stated in the accompanying Memorandum

Opinion, it is hereby

ORDERED that the plaintiff's motion for summary

judgment [#20] and the defendant's motion for summary judgment

[#21] are GRANTED IN PART and DENIED IN PART.

Specifically, it is hereby

ORDERED that both motions are DENIED with respect

to Exemption 5 of the Freedom of Information Act ("FOIA" ), 5

U.S.C. § 552(b)(5). It is further

ORDERED that the plaintiff's motion is GRANTED

insofar as it relates to Exemption 6 of the FOIA, 5 U.S.C. §

552(b)(6). Accordingly, it is further

ORDERED that the Peace Corps shall release the identity

of the third party complainant. It is further

ORDERED that the defendant's motion is GRANTED

insofar as it relates to the plaintiff's Privacy Act claim, 5 U.S.C. §

552a(d)(1).

Finaily, in light of the Court's decision on Exemption 5

above, it is ferther

ORDERED that the parties shall meet and cater and file

with this Court the requisite report and proposed scheduling order

under Local Rule 16.3 within 30 days of the date of this Order,

specifically addressing the further proceedings necessary to

resolve the parties’ factual dispute respecting Exemption 5.

SO ORDERED.

Thomas F. Hogan

Chief Judge

October 10, 2001

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D.., )

)

Plaintiff, )

)

v. Civ. No. 00-0848 (TFH)

)

PEACE CORPS, REDACTED VERSION’

)

Defendant. )

FILED

JAN 06 2004

NANCY MAYER WHITTINGTON CLERK

U.S. OSSTRICT COURT

MEMORANDUM OPINION

_ Pending before the Court are two matters in this Freedom

of Information Act ("FOIA") case. The first is a factual dispute

respecting the deliberative process privilege under Exemption 5 to

FOIA, 5 U.S.C. § 552(b)(S). The second is the potential release of

a stay of that portion of the Court's Order of October 12, 2001

requiring disclosure of the third party complainant's identity until

final judgment on the Exemption 5 issue is entered. Upon careful

consideration of both matters, each of the parties’ Proposed

Findings of Fact and Conclusions of Law, the draft Administrative

Separation Report ("ASR") in question, the evidentiary hearing

which occurred on October 10, 2002 and October 15, 2002, the

exhibits submitted at that hearing, the plaintiff's consent to a

limited stay of releasing the third-party complainant's identity, the

Court's decisions of October 12, 2001 and February 26, 2002, and

' Information contained in the non-redacted memorandum opinion was

obtained from a document submutted to the Court in camera and under

seal. Accordingly. that non-redacted opinion is available only to the

Court.

the entire record herein, the Court adopts and incorporates 1 its

entirety the Defendant's Proposed Findings of Fact and

Conclusions of Law. Consequently, the Court finds that

Exemption 5 of FOIA, the deliberative process privilege, allows

the Peace Corps to withhold release of the ASR in question

Further, the Court will lift the stay of disclosure of the third-party

complainant’s identity.

I. BACKGROUND’

Through this lawsuit, Plaintiff Michael Horowitz seeks the

release of the ASR’ in the possession of Defendant Peace

Corps involving his March 1999 resignation from service with

the defendant as an educator in the Kingdom of Tonga. The

Peace Corps has refused to release the document, invoking

Exemptions 5 and 6 of FOIA and contending that the Privacy

Act is inapplicable.

In a Memorandum Opinion and Order filed on October 12,

2001, the Court denied in part and granted in part the parties’

cross-motions for summary judgment pursuant to Federal Rule of

Civil Procedure 56. With respect to Exemption 5 of FOIA, the

deliberative process privilege, the parties submitted conflicting

evidence on a significant material fact - namely, whether Arturo

Giron, the Peace Corps Country Director in Tonga, had decided to

administratively separate Mr. Horowitz at the time Mr. Giron

drafted the ASR at issue in this case.* The Court accordingly

denied both parties’ motions on this issue and ordered the parties

* In prior decisions, the Court thoroughly discussed the general

background underlying the claims asserted by the plaintiff in this lawsuit,

see, e.g., 10/12/01 Mem. Op. at 1-4 and 02/26/02 Mem. Op. at 2-3. and

therefore need not reiterate its entirety here.

* In referring herein to this document as "ASR." the Court does not mean

to imply that the document is anything other than a draft.

* The applicable legal standard related to Exemption 5 is set forth in great

detail at pages 5-6 of the Court's Memorandum Opinion dated October

12, 2001, and is incorporated herein by reference.

to meet and confer and file with the Court a report and proposed

scheduling order addressing the further proceedings necessary to

resolve the parties’ factual dispute respecting the exemption. See

10/12/01 Mem. Op. at 5-10. Upon reviewing this report, the Court

set an evidentiary hearing for October 10, 2002 (which was

continued on October 15, 2002) in order to address the Exemption

5 issue and to fully evaluate the credibility of the parties’

witnesses.

With respect to Exemption 6 of FOIA, the personal

privacy exemption, vis-a-vis Horowitz's specific request for the

release of the identity of the third-party complainant whose

complaint precipitated Horowitz's resignation from the Peace

Corps, the Court identified and balanced the pertinent interests,

and it concluded that the balance favored disclosure of the

identity. The Court thus granted Horowitz's motion for summary

judgment on this issue and accordingly ordered the release of the

third-party complainant's identity. See id. at 10-15. Finally, the

Court found release of the ASR under the Privacy Act

inappropriate and accordingly granted summary judgment to the

defendant on that issue. See id. at 15-18.

In a Memorandum Opinion and Order filed on October

12, 2001, the Court denied the Peace Corps's motion for leave to

submit the ASR in camera and for reconsideration of the Court's

October 12, 2001 Order.* The Court also denied the Peace Corps's

motion to stay the joint report requirement, but granted its motion

to stay disclosure of the third-party complainant's identity until

final judgment on the Exemption 5 issuc is entered.

* By Order dated October 15, 2002, the Court found that at the

conclusion of all of the testimony 1n the evidentiary hearing. it was

appropriate for the Defendant to submitt the ASR to the Court for an in

camera review. The Court has considered the ASR in camera as part of

the overall evidentiary record of the case.

Il. DISCUSSION

At an earlier stage of this case, the Court found summary

judgment to be an inappropriate vehicle for disposing of the

Exemption 5 issue:

In light of [the] conflicting evidence of whether

Giron had decided to administratively separate

Horowitz at the time he drafted the document, the

Court concludes that summary judgment for either

party is inappropriate at this juncture. As a

predicate for determining whether the document in

question is predecisional, the timing of such a

decision — if it was made at all — is obviously a

significant material fact. And because the parties

have submitted conflicting evidence on when,

indeed whether, a decision was made by Giron, a

genuine issue of material fact exists, precluding

summary judgment on whether Exemption 5

should or should not apply. In particular, the Court

is unable — without making findings of fact ~ to

determine whether the document was "'prepared in

order to assist (Giron) in arriving at his decision,’

rather than to support a decision already made [by

him].”

10/12/01 Mem. Op. at 9-10 (quoting Petroleum Info. Corp. v.

Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992), and

Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168,184

(1975)). However, after hearing the testimony of six witnesses

(including Plaintiff) over a two day period and carefully reviewing

the eight exhibits submitted therein by the Defendant, the Court is

now able to find that Mr. Giron had not decided to

administratively separate Horowitz at the time he drafted the

document.

The Plaintiff offered testimony from himself and Mr.

Lopeti Foliaki, who is a Tongan lawyer, that was bnefly retained

by Mr. Horowitz in this matter. Mr. Foliaki testified that he met

personally with Mr. Giron on March 15, 1999 to discuss the

allegations against Plaintiff and the Peace Corp's intended actions.

See generally Evidentiary Hearing Transcript ("Tr.") of 10/10/02

at pp. 152-58. On direct examination, Mr. Foliaki testified that Mr.

Giron emphatically told him that "Dr. Horowitz will be

administrativelyy separated.” Tr. at 155:16-20. However, in the

ensuing cross examination, Mr. Foliaki's testimony indicated that a

different result would occur:

Q. [Counsel for Defendant}. Do you know whether or not

Arturo Giron ever made a decision to separate Michael

Horowitz or take any other action in connection with the

allegations that he had received against him?

A. [Mr. Foliaki]. No, I don't

Q. Do you have any idea whether he did or not?

A. My information from Michael [Horowitz] is that he did.

Q. From Michael?

A. But only from Dr. Horowitz, yes.

Q. I see. Besides what Michael told you, do you have any

information at all whether he did or not?

A. No.

Oct. 10, 2002 Tr. at 169:3-14. Several minutes later, Mr. Foliaki

again stated that he did not know whether Arturo Giron had

decided to separate Plaintiff as of March 18, 1999:

Q [Counsel for Defendant]. This is an exhibit to your

deposition; it's marked deposition Exhibit Number |.

Foliaki. Can you turn to that? It's at the back of your

deposition transcript.

A [Mr. Foliaki]. Yes.

Q. Did you write this letter, sir?

A. I didn't hear the question.

Q. Did you wnite this letter, sir?

A. Yes.

Q. And what is the date of this letter?

A. 18 March, 1999.

Q. And why did you wnte this letter, sir?

A. I was instructed to write it by Dr. Horowitz. The

purpose of it was to get before the Peace Corps volunteer

whose name — who received the complaint from the John

Doe, to get information to her regarding the facts to

indicate that John Doe may not be telling all the truth.

Q. And was it a goal of yours or your client's in writing the

letter that it might help him to either — it might help him

with regard to his status as a Peace Corps volunteer?

A. Might help his status? Yes, I think so.

Q. You believe that if you were able to persuade the Peace

Corps, that he might remain in Tonga as a Peace Corps

volunteer, is that correct?

A. Yes, yes.

Q. And at that date, March 18th, you still had hope in your

heart as you testified, that the decision would be to allow

Michael to continue as Peace Corps volunteer, and so in

part, that was the basis for the letter; is that correct?

A. Yes.

Q. And just to confirm, the fact that you had hope in your

heart, as the phrase has been used, that was because in

your mind there had not yet been a final decision which

would have dashed all hope?

A. Well, the hope in my heart was that yes, that a final

decision — and if a final decision had been made, that

- Michael could get reinstated.

Q. If it had been made. But at that point did you know

whether it had been made or not?

A. No, I didn't.

Oct. 10, 2002 Tr. at 179:24-181:14. Mr. Foliaki's testimony that he

did not know on March 18, 1999, two days after Mr. Horowitz had

resigned, whether Arturo Giron had decided to separate Plaintiff 1s

further evidence that such a final decision had not been made.

The Court also carefully examined the demeanor and

testimony of Plaintiff Horowitz at the two day evidentiary

hearing. Mr. Horowitz was continually elusive in his answers to

cross-examination and testified differently than he had in his

earlier deposition and submissions to the Court. Examples

include:

— Whether he physically appears on the campus where he

is a visiting scholar, See Oct. 15, 2002 Tr. at 12:22-14:23.

~— Whether he had asserted a claim that the draft ASR in

question had been destroyed by the defendant. See Oct. 15, 2002

Tr. at 16:17-24:9.

— Whether he was given pro bono legal advice by "a

large number of attorneys.” See Oct. 15, 2002 Tr. at 43:14-

45:12.

— Whether he recalled expressing a concern that the

allegations against him were "unfairly nonspecific” and whether

he had the opportunity to respond to those allegations. See Oct.

15, 2002 Tr. at 46:17-57:7.

~ Whether he recalled that Sally Olsonoski and Arturo

Giron were in touch with Peace Corps headquarters in Washington

at "every opportunity they had” regarding this matter. See Oct. 15,

2002 Tr. at 58:2-59:9.

In addition to all of this contradictory testimony, Mr.

Horowitz admitted knowing on March 16, 1999 — the date he

resigned — that Mr. Giron would not independently make the

decision to administratively separate him:°

Q. (Counsel. for Defendant]. Did Mr. Giron or Ms.

Olsonosi ever tell you that Peace Corps headquarters ever

instructed them as to what the disposition of this matter

should be?

A. [Mr. Horowitz]. They never did.

Q. Okay. But you believe that Washington was calling the

shots, isn't that your testimony”

A. Yes, and they —

Q. That’s —

A. And they confirmed it.

° (REDACTED |

A. To my satisfaction, they confirmed it; perhaps not to

yours.

Q. They confirmed what?

A. That in fact they were getting orders from Washington

and not moving independently.

Oct. 15, 2002. Tr. at 62:2-17. This testimony by Mr. Horowitz

actually supports Arturo Giron's testimony, since Mr. Giron

repeatedly stated that he had not yet decided whether to

administratively separate Mr. Horowitz before Mr. Horowitz

resigned. See, e.g., Oct. 10, 2002 Tr. at 59:22-61:12; 63:14-64:2;

66:1-73:21.

The Court also carefully examined the draft ASR, which

was submitted for an in camera review as part of the overall

evidentiary record in this case.

The ASR in question has three distinct sections. The first

is entitled "Grounds for Administrative Separation" and lists

[REDACTION BEGINS ... REDACTION ENDS.} The Court finds

further evidence of this by examining an e-mail exchange between

Mr. Giron and personnel at Peace Corps Headquarters. On March

12, 1999, for example, Mr. Giron wrote to personnel in the Peace

Corps General Counsel's Office and stated: "Sally [Olsonoski] and

I will be meeting with Michael again on Monday [March 15, 1999]

at 4:30 p.m. [ really would like to have a final decision on this

made by then ... 1am now completely confused about how to

proceed ... Please send me either really clear guidance from your

perspective, or a great deal more wisdom." Def. Exhibit 4.

- Finally, Mr. Giron's in-court testimony supports his claim

that he had not yet decided whether to administratively separate

Mr. Horowitz before Mr. Horowitz resigned. See, e.g., Oct. 10,

2002 Tr. at 59:22-61:12; 63:14-64:2; 66:1-73:21. After

witnessing Mr. Giron's demeanor on the witness stand, the Court

has been presented with no evidence or indication that Mr. Giron

was anyining less than forthright and truthful in this testimony.

Having evaluated the credibility of all of the witnesses at

the evidentiary hearing on October 10,2002 and October 15,

2002, and having fully considered all of the eviden.. . the Court

agrees with, adopts, and incorporates herein the Defendant's

Proposed Findings of Facts and Conclusions of Law.’

Accordingly, the Court now finds that the document was

prepared in order to assist [Giron] in arriving at his decision,’

rather than to support a decision already made [by him].”

Petroleum Info. Corp., 976 F.2d at 1434 (quoting Renegotiation

Bd., 421 U.S. at 184). As the ASR was both predecisional and

deliberative, Exemption 5 applies and the Defendant is justified in

withholding this document from Plaintiff Horowitz.

Il. MOTION TO STAY DISCLOSURE OF THE

THIRD PARTY COMPLAINANT'S IDENTITY

In the Court's Memorandum Opinion and Order of

February 26, 2002, a portion of the Court's Order of October 12,

2001, directing the release of the identity of the third-party

complainant, was stayed until final judgment on the applicability

of Exemption 5 was entered. As tat fina: judgment is entered

today, the Court now lifts the stay and orders the release of the

identity of the third-party complainant. The Court takes this action

not only under the rationale set forth in the Court's Memorandum

Opinion of 10/12/01 at 10-15, but under the "reasonably

segregable" requirement. The FOIA requires that "[a]ny

reasonably segregable portion of a record" must be released after

appropriate application of the Act's nine exemptions. 5 U.S.C. §

552(b) (sentence immediately following exemptions). Further, our

Court of Appeals has held that District Courts "ha[ve] an

affirmative duty to consider the ségregability issue sua sponte."

Trans-Pacific Policing Agreement v. United States Custom Serv..

177 F.3d 1022, 1028 (D.C. Cir. 1999).

’ For the sake of brevity, those Proposed Findings of Fs and

Conclusions of Law [# 63] will not be reproduced in this

Memorandum Opinion.

Plaintiff's Second Amended Complaint in this case seeks

relief in the form of obtaining the ASR. The Court has denied

Plaintiff's request under both Exemption 5 and the Privacy Act

claim. However, while the Peace Corps is not required to tum

over to Mr. Horowitz a copy of the entire ASR, it is required to

provide him with the name of the third-party complainant. The

court has stayed the litigation in a related case, Civil No. 00-1195

(TFH).* The complaint in that case is replete with allegations

dealing with events. surrounding Mr. Horowitz's resignation from

the Peace Corps. That complaint includes assertions by Mr.

Horowitz regarding his interaction with the third-party

complainant, which form part of the factual background in that

case. The record in Civil No. 00-1195 is not fully developed, and

further proceedings in that case may require the use of the name

of the third-party complainant. While it may turn out that Mr.

Horowitz can easily obtain the name through discovery, he should

not be precluded from doing so merely because that name is

written on a draft ASR report to which he may not have access.

To require Mr. Horowitz to file a FOLA request in Civil No.

“00-1195 just to obtain the name of the third-party complainant

would unnecessarily delay that case. See Senate of the

Commonwealth of Puerto Rico. v. United States Dep't of Justice,

823 F.2d 574, 580 (D.C. Cir. 1987) ("the ‘interests of judicial

finality and economy’ have special force in the FOIA context,

because [of] the statutory goals — ‘efficient, prompt, and full

disclosure of information’ ... ") (citations omitted) (emphasis in

original).

In sum, while the Peace Corps is not required to tum over

the ASR, under both the rationale set forth in the Court's

Memorandum Opinion of 10/12/01 at 10-15 and the "reasonably

segregable" requirement the Peace Corps must disclose to Plaintiff

Horowitz the name of the third party complainant.

* That stay will be lifted this same day by a separate Order of the Court.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Exemption 5

of FOIA, the deliberative process privilege, allows the Peace

Corps to withhold release of the ASR in question. Further, the

Court lifts the stay of disclosure of the third-party complainant's

identity. As Plaintiff's Second Amended in this case seeks relief in

the form of obtaining the ASR, and the Court has denied that

request, this case is dismissed with prejudice.

An appropriate order will accompany this Memorandum

Opinion.

ane A Vea

January 6", 2004

Thomas F. Hogan

Chief Judge

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D., )

)

Plaintiff, )

)

Vv. Civ. No. 00-0848 (TFH)

PEACE CORPS, REDACTED VERSION’

)

Defendant. )

FILED

JAN 06 2004

NANCY MAYER WHITTINGTON, CLERK

U.S. DISTRICT COURT

ORDER

For the reasons stated in the accompanying Memorandum

Opinion, it is hereby

ORDERED that Exemption 5 of the Freedom of

Information Act allows the Peace Corps to withhold release of the

draft Administrative Separation Report ("ASR") in question. It is

further

ORDERED that the stay of disclosure of the third-party

complainant's identity is lifted. Finally, as Plaintiff's Secoi.d

Amended Complaint in this case seeks reliet in the form of

obtaining the ASR, and the Court has denied that request, it is

therefore

' Information contained in the non-redacted memorandum opinion was

obtained from a document submitted to the Court in camera and under

seal. Accordingly, that non-redacted opinion is available only to the

Court.

_—

ORDERED that judgment is entered for the Defendant and

Plaintiff's case is DISMISSED WITH PREJUDICE. This is a

final appealable Order pursuant to Federal Rule of Appellate

Procedure 4(a).

SO ORDERED.

January 6", 2004

Thomas F. Hogan

Chief Judge

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D., )

)

Plaintiff, )

Civil Action No. 00-0848 (TFH)

| )

PEACE CORPS, )

Defendant. )

)

PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Findings of Fact

1. Arturo Giron was, from mid-1998 through January

2001, the Peace Corps Country Director for the Kingdom of

Tonga. As such, he had general oversight of the Peace Corps

programs, including responsibility for individual Peace Corps

volunteers (sometimes herein "volunteers”).

2. On Sunday, March 7, 1999, Mr. Giron received a phone

call from a volunteer who expressed concermed, and asked to meet

with him, about allegations made to her by a Tongan high school

student. Later that same day, Mr. Giron met with the volunteer

("March 7" meeting"), who related to Mr. Giron, with greater

specificity, the allegation of potential sexual misconduct between

another volunteer, Michael Horowitz, and a male Tongan student

at ‘Atenisi High School. It appeared, at the time that the

allegations were communicated to Mr. Giron, that the Tongan

student had been "underage" — that is, under 18 — at the time of the

potential sexual misconduct. Mr. Horowitz was a teacher at

‘Atenisi High School.

3. Immed' _~ after the March 7" meeting, Mr. Giron

began to review th * ace Corps Manual to see if it had

appropriate guidance on how to proceed in the circumstances of

what Mr. Giron believed was a serious allegation.

4. Peace Corps Manual Section 284 ("MS 284,”

Defendant's Exhibit 2 ) provides a structured process by which a

country director is required to investigate and resolve allegations

of volunteer misconduct. Although MS 284 is titled "Early

Termination of Service," the "administrative separation process"

that MS284 describes ~an result in a number of dispositions,

including but not limited to a letter of reprimand, the transfer of a

volunteer from one site or program to another, imposition of

conditions on Peace Corps service, or nothing at all. MS 284

subparagraph 4.5.1. Subparagraph 4.4.2. provides a checklist of

steps that the country director (who is, under MS 284, a "deciding

official") must follow in investigating such allegations. Among

the requirements under that checklist are (a)"[{i]nform the

volunteer or trainee that administrative separation is being

considered and identify the specific conduct or allegations that

will constitute grounds for administration;" (b) provide the

volunteer with a copy of MS 284 and explain appeal nghts; (c)

provide the voluntee: with the opportunity to ask questions,

respond to the allegations, and provide additional information;

and (d) "[rJemind the volunteer ... that he or she may resign from

Peace Corps service at any time.”

5. After reviewing the Peace Corps Manual, Mr. Giron

wrote a lengthy e-mail memorandum to Steve Schwinn, a lawyer

in the Peace Corps General Counsel's office in Washington, D.C.,

with whom Mr. Giron had frequent previous contact regarding

other matters. That e-mail, dated March 7, 1999, 2:46 pm _

("March 7” e-mail," Defendant's Exhibit 1), explicitly sought

guidance from Mr. Schwinn and the General Counsel's Office

regarding how to proceed, and detailed the allegations that had

been related to Mr. Giron from the female volunteer. Mr. Giron

had not, during his then-nine-month tenure with the Peace Corps,

had any occasion on which to deal with allegations of volunteer

misconduct as serious as the subject allegations, and had never

initiated any MS 284 process. Both MS 284 and training programs

presented by the Peace Corps' Office of General Counsel

“encouraged country directors to consult with the Office of General

Counsel in dealing with these matters. The March 7" e-mail was

the starting point in what was to become an almost daily bout of

communications — including hours of phone conversations

sometimes two and three times a day — between Mr. Giron, on one

hand, and the Office of General Counsel and other senior-level

officials at Peace Corps headquarters in Washington, D.C.

("Headquarters"), on the other, concerning the subject allegations.

6. While all of the details of the allegations reported in the

March 7" e-mail are not essential to resolving this case, some

aspects of those reported allegations assist in explaining the

complexity of the matter confronting Mr. Giron, a factor that

supports his testimony that he had 10 intention of rendering any

final decision on the matter without first securing the views of the

Peace Corp's Office of General Counsel.’ In that regard, the

allegations reported in the March 7th e-mail include references to

(a) the Tongan student's initial rejection of Mr. Horowitz's

invitation to take a shower while at Mr. Horowitz's house and

~ subsequent agreement to do so after "Michael continued to ask

repeatedly," Defendant's Exhibit 1; (b) Mr. Horowitz's undressing

and joining the Tongan student in the shower; (c) hand/genital

contact therein (the March 7™ e-mail specifies, "(this part is

unclear)"); (d) the Tongan student's hurried departure from Mr.

Horowitz's house after becoming upset, and (e) the Tongan

student having reported to the female volunteer that he considered

going to the police but had not yet done so.

' Other factors that support that testimony are the following: (a) Mr.

Giron's frequent phone communications with the Peace Corp's Office of

General Counsel during the period between the emergence of the

allegations and Mr. Horowitz's ultimate decision to resign from Peace

Corps service, seeking guidance every step of the way; (b) Mr. Giron's

7. The March 7" ¢-mail, a contemporaneous writing

with respect to the March 7” meeting, also reported: "Ihave _

asked this volunteer to give me some time to get guidance from

Washington before taking any action ... I read the PCV conduct

policy carefully and I think that I need to get guidance from you

and possible OSS [Office of Special Services]." As to the

appropriate course of action in these circumstances, the March

7® e-mail stated,

I also believe that this conduct/incident could lead

to early termination of Michael Horowitz' service

with the Peace Corps but there are enough

questionable areas that I think I need to know

more and investigate .... | would like to hear your

opinions on an appropriate course of action .... I

have not and will not discuss this with any other

staff here until I hear from you, although I would

like to seek the advice of my senior Tongan

APCD [associate Peace Corp Director], Drew

Havea, as soon as possible .... I will also not speak

to the young Tongan man involved until I get

clearer guidance from you and possibly OSS,

although I think that this incident is serious

enough that I should investigate and take quick

action. Please reply by e-mail or better still phone

me so we can think this through together ....

Id.

stream of faxes and e-mails to the Office of General Counsel regarding

his findings on the incident as they emerged, see Defendant's Exhibit 1, 3,

4; (c) Mr. Giron's articulated concerns about the legal implications of the

alleged incident in view of the prohibition on homosexual activity in

Tonga; (d) MS 284's explicit encouragement that country directors

consult with the Office of General Counsel in undertaking the MS 284

process; and (e) Mr. Giron's lack of experience in dealing with alleged

volunteer misconduct of this nature.

8. Within the next one or two days, Mr. Giron and his

APCD Sally Oslonoski had a two-hour teleconference with

several senior-level officials at Peace Corps headquarters in D.C.

("Headquarters"). Mr. Giron recalls that the lawyers’ response to

the situation, as expressed during the teleconference, was that "we

should collectively be very faithful to the process and the policies

of Peace Corps, that we should stay within the lines, so to speak."

Transcript of 10-10-02 hearing ("10-10 Tr.”) at 27, lines 2-5.

9. Mr. Giron subsequently interviewed the Tongan

student, who related allegations very similar to those that had

been related to Mr. Giron by the female volunteer. Then, on

March 12", Mr. Giron and Ms. Olsonoski met with Mr. Horowitz.

Mr. Giron recalls that Mr. Horowitz recognized the incident, but

explained to Mr. Giron that the incident was consensual; that the

Tongan student was 18 at the time; and that Mr. Horowitz always

made certain that his sexual partners were 18. See also

Defendant's Exhibit 3.

10. Mr. Giron appreciated the legal implications of Mr.

Horowitz's version of events, and particularly the complexities

involved in sorting out the appropriate manner in which to

proceed in light of them. Again he looked to the Office of

General Counsel for guidance, sending Steve Schwinn an e-mail

dated March 12, 1999, 7:18 p.m., Defendant's Exhibit 4,

explaining that, "There is no age of majority in Tonga for boys,"

but that "it is very clear that Michael's behavior does put him at

nsk of prosecution under Code 139 .... I don't know where this

leaves us. There is no clear age of majority, but homosexual acts

are illegal under the law here. In our culture, we have a clear age

of majonty, but homosexuality itself is not illegal in many

jurisdictions"/d. Mr. Giron continued, "I am now completely

confused about how to proceed, even if we develop documentary

evidence of [the Tongan student's] age. Please send me either

really clear guidance from your perspective or a great deal more

wisdom.” /d. '

11. At some point prior to March 16, 1999, Mr. Giron

started drafting a document in response to a request by Steve

Schwinn that Mr. Giron prepare a report to be used as a focal

point for further discussion and that could be reviewed by the

lawyers in Washington. In preparing the document, Mr. Giron

undertook a "cut and paste" regarding all the "source documents"

that he had generated up to that point in time (notes and

memoranda regarding meetings he had had with Mr. Horowitz,

and the Tongan student and other matters). Mr. Giron credibly

testified that the purpose of the document was "so that we could

put all the relevant issues with respect to the incident and the case

into one, you know, single, cohesive document .... And the legality

of it, 1 mean, there were legal issues. I'm not a lawyer. I mean the

lawyers would obviously need to go through this with a fine-tooth

comb ....” 10-10 Tr. at 53, line 23, through 54, lines 5. Mr. Giron

incorporated into the document all of the relevant facts that he

believed were accurate. Mr. Giron testified, while looking at the

subject document during the evidentiary hearing in this case, that

the draft document, which had been designed to conform to the

pre-existing, electronically-available template for administrative

separation reports, had only the first three of five required -ections

completed. |

12. No final decision was made in the draft document

regarding the incident or any potential administrative separation

of Mr. Horowitz. Mr. Giron testified that "[w]e were still in the

process of deliberating ... we never got to [the] point of

{deciding which facts would support a possible administrative

separation] ... 1 mean, remember, this was strictly a first draft. It

had ... it received no review, so I pretty much cut and paste just

about everything that I felt was relevant and important and true

into this document.” 10-10 Tr. at 54-55.

13. On March 16, 1999, prior to a meeting in which Mr.

Horowitz would announce that he had decided to resign, Mr.

Giron e-mailed the draft document to Headquarters, and

specifically to Steve Schwinn, other lawyers in the General

Counsel's office, and other senior officials there. Mr. Giron

submitted a cover e-mail, dated March 16, 1999, that stated,

"Folks. Horowitz admin sep. report enclosed. Please review and

send comments/changes to Sally [Olsonoski]. Please CC me as

well.” Defendant's Exhibit 5.

14. At the time that Mr. Giron had sent the March 16,

1999 e-mail, he had plans to leave Tonga within the next few days

to attend his aunt's funeral. He had appointed Sally Olsonoski to

be acting Country Director in his absence, and to take charge of

the matter dealing with Mr. Horowitz. It was for that reason tha

the March 16, 1999 cover e-mail designated Ms. Olsonoski as the

recipient of comments about the draft document. Mr. Giron's

transfer of the authority of acting Country Director to Ms.

Olsonoski included the transfer of responsibility for making any

final determination regarding Mr. Horowitz's possible

administrative separation. Ms. Olsonoski was prepared to make

that decision. See 10-10 Tr. at 114, lines 19-23 ("I assured [Mr.

Giron] that I felt confident in my abilities, that I had successfully

followed the [MS 284] procedure in the past, and that I felt that

with the help of Washington and general counsel that I would

reach the right decision.”) If Mr. Giron had made a final

determination regarding whether to administratively separate Mr.

Horowitz, then, he would have had to have told Ms. Olsonoski,

for she was about to take over his responsibilities in connection

with the subject matter. Ms. Olsonoski credibly testified that Mr.

Giron never told her that he had made any such final decision, and

that precisely the opposite was true — that Mr. Giron's conduct

and statements in connection with the matter suggested that he

was waiting for Headquarters to make a final determination

regarding a possible administrative separation.

15. Ata meeting later in the day on March 16, 1999, with

Mr. Giron and Ms. Olsonoski, Mr. Horowitz announced that he

had decided to resign. Mr. Giron subsequently communicated that

information to Headquarters. Neither pnor to that meeting, nor at

any point in time thereafter, did Mr. Giron or Ms. Olsonoski

receive any response from Headquarters regarding the draft

document. The need for finalization of any determination having

come to an end, the draft document became irelevant, and would

have been destroyed had Mr. Horowitz not procured the

agreement of Mr. Giron to keep the draft document in a safe in the

Peace Corps’ offices in Tonga. There is no evidence that the

Office of General Counsel ever made any final determination

regarding whether to counsel Mr. Giron to administratively

separate Mr. Horowitz. There is also ~o evidence that Mr. Giron

_ would have made a final decision as to whether to

administratively separate Mr. Horowitz without first procuring

definitive counsel one way or the other from the Office of General

Counsel, and an ample record of evidence suggesting that Mr.

Giron had no intention of making a decision without definitive

counsel from the Office of General Counsel. See, e.g., Defendant's

Exhibit 4 at 1 ("Sally and | will be meeting with Michael again on

Monday at 4:30 p.m. I really would like to have a final decision

on this made by then."). -

16. In accordance with MS 284, Mr. Giron reminded Mr.

Horowitz many times throughout the MS 284 process that Mr.

Horowitz was free to resign as a Peace Corps volunteer. While

Mr. Giron testified that he may have referenced the draft

document in his discussions with Mr. Horowitz prior to Mr.

Horowitz's announcement of his decision to resign, and may have

_ let Mr. Horowitz know, in the interests of full and fair disclosure,

that the document was being sent to Washington D.C., there is no

credible evidence that Mr. Giron disclosed this information with

the intent to coerce Mr. Horowitz to resign. Nor is there credible

evidence that Mr. Giron disclosed this information to give Mr.

Horowitz the impression that a final determination had been made

to administratively separate Mr. Horowitz. Both Mr. Giron and

Ms. Olsonoski testified that Mr. Giron never said to Mr.

Horowitz, at any of their meetings with Mr. Horowitz, that a final

administrative separation determination had been made, or that

Mr. Giron was on the verge of administratively separating Mr.

Horowitz. There is no credible evidence that Mr. Giron opted to

discuss with Lopeti Foliaki, Mr. Horowitz's Tongan lawyer, the

Peace Corps' internal deliberation processes regarding the

possibility or probability that Mr. Horowitz would be

administratively separated, as Mr. Foliaki testified. Mr. Giron was

particularly credible when he explained that he would not have

had a substantive discussion with a lawyer representing Mr

Horowitz "without my own lawyer present if there is a lawyer on

the other side." 10-10 Tr. at 63, lines 9-11.

Conclusions of Law

1. Exemption 5 of the FOIA protects from disclosure,

inter alia, "intra~-agency memorandums or letters which would not

be available by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). The exemption protects

documents "that are normally privileged in the civil discovery

context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149

(1975); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983);

Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.

Cir. 1987).

2. The deliberative process privilege is a civil discovery

privilege that "prevent{s] injury to the quality of agency

decisions,” NLRB v. Sears, Roebuck & Co., 421 U.S. at 151, by

protecting predecisional communications — those "antecedent to

the adoption of an agency policy," Jordan v. U.S. Department of

Justice, 591 F.2d 753, 774 (1978) — and that are also deliberative

in that the communication "makes recommendations or expresses

opinions on legal or policy matters,” Vaughn v. Rosen, 523 F.2d

1136, 1143-44 (D.C. Cir. 1975). See also Mapother v. Department

of Justice, 3 F.3d 1533,1537 (D.C. Cir. 1993) ("The deliberative

process privilege protects materials that are both predecisional

and deliberative”) (citing Petroleum Info. Corp. v. United States

Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992));

Federal Trade Commission v. Warner Communications, Inc., 742

F.2d 1156, 1161 (9" Cir. 1984) (the privilege "permits the

government to withhold documents that reflect advisory opinions,

recommendations and deliberations comprising part of a process

by which government decisions and policies are formulated");

Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 (2nd

Cir. 1999) (referencing Renegotiation Bd. v. Grumman Aircraft

Eng. Corp., 421 U.S. 168, 184 (1975) and Hopkins v. U.S. Dep't

of Housing and Urban Development, 929 F.2d 81, 84 (2d Cir.

1991)); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 90 F.

Supp.2d 9, 14 (D.D.C. 2000) (citing to Access Reports v. US.

Dep ‘t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991)). The

burden is on the agency asserting the deliberative process

privilege in a FOIA case to show that the information in question

satisfies both the "predecisional" and "deliberative" requirements.

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980).

3. In determining whether material falls within the realm

of the deliberative process privilege, " ... the critical question is

whether ‘disclosure of the materials would expose an agency's

decision making process in such a way as to discourage candid

discussion and thereby undermine the agency's ability to perform

its functions."" Eugene Burger Management Corp. v. U.S.

Department of Housing and Urban Development, 192 F.R.D. 1, 5

(D.D.C. 1999) (quoting Chemical Weapons Working Grp v. US.

Environmental Protection Agency, 185 F.R.D. 1, 2-3 (D.D.C.

1999) (citing Dudman Comm. v. Dep't of the Air Force, 815 F.2d

1565, 1568 (D.C. Cir. 1987)). The privilege

serves to assure that subordinates within an agency

will feel free to provide the decision maker with their

uninhibited opinions and recommendations without

fear of later being subject to public ndicule or

cniticism; to protect against premature disclosure of

proposed policies before they have been finally

formulated and adopted; and to protect against

confusing the issues and misleading the public by

dissemination of documents suggesting reasons and

rationales for a course of action which were not in fact

the ultimate reasons for the agency's action.

Coastal States Gas Corp., 617 F.2d at 866 (citing to Jordan v. U.S.

Department of Justice, 591 F.2d at 772-74). "Exemption 5 is

manifestly not meant to isolate agency decision makers from

public opinion or to silence public voices. But the statutory

framework of the APA allows agencies a space within which they

may deliberate." Wolfe v. Department of Health and Human

Services, 839 F.2d 768, 776 (D.C. Cir. 1988). The deliberative .

process privilege "protects the integrity of the decision-making

process itself by confirming that officials should be judged by

what they decided(,) not for matters considered before making up

their minds.” Jordan v. U.S. Department of Justice, 591 F.2d at

772-73 (citations omitted).

4."A document is predecisional if its was 'prepared in

order to assist an agency decisionmaker in arriving at his

decision," rather than to support a decision already made.”

~ Petroleum Info. Corp., 976 F.2d at 1434 (quoting Renegotiation

Bd., 421 U.S. at 184). "Documents which are protected by the

privilege are those which would inaccurately reflect or

prematurely disclose the views the agency, suggesting as agency

position which is as yet only a personal position .... even if the

document is predecisional at the time it is prepared, it can lose

that status if it is adopted, formally or informally, as an agency

position on an issue or is used by the agency in its dealings with

the public.” Coastal States Gas Corp., 617 F.2d at 866.

5. The draft document at issue in this suit is an intra-

agency communication that is predecisional for purposes of the

deliberative process privilege. The document is a draft version of

a report reflecting one possible outcome of the MS 284 process,

which process, because Mr. Horowitz resigned, was never

completed and was never required to be completed. The draft

document is predecisional because it was prepared at a point in

time before the agency reached any decision regarding what

action to take, if any, in connection with the MS 284 process as

applied to Mr. Horowitz.

6. Mr. Giron did not adopt, formally or itiformally, the

subject draft document as the agency position regarding the

underlying matter in this case. Nor did he "use" it in his dealings

with Mr. Horowitz to represent that the Peace Corps had made a

final decision regarding administrative separation of Mr.

Horowitz. See Coastal States Gas Corp., 617 F.2d at 866.

7. Moreover, the draft document was clearly

deliberative, reflecting Mr. Giron's first attempt to sift through

the various items of evidence of the subject allegations, and

determine, and then articulate, what facts might be relevant or

appropriate to include for consideration in the course of

effecting a potential administrative separation regarding those

allegations. Mr. Giron drafted the document to provide Peace

Corps lawyers and other Peace Corps headquarters officials

with a factual analysis upon which they might rely in

evaluating whether a decision to administratively separate

plaintiff was legally justified and appropriate as a policy

matter. Such a document is protected under the deliberative

process privilege.

R tfully aos

gre

"ROSCOE C. fe Jr., D.C. Bar #246470

United States Attorney

<[hek 6. Pappa

MARK E. NAGLE, D.C. Bar #416364

Assistant United States Attorney

oy ee

LISA S. GOLDFLUSS, D.C. Bar #417787

Assistant United States Attomey

555 4th Street, N.W., Tenth FI.

Washington, D.C. 20530

(202) 514-7198.

Attorneys for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHAEL G. HOROWITZ, Ph.D., )

)

Plaintiff, )

Civil Action No. 00-0848 (TFH)

)

PEACE CORPS, )

Defendant. )

)

ERRATA

Se Defendant Peace Corps, by undersigned counsel,

hereby files this errata to correct the following in its Proposed

Findings of Fact and Conclusions of Law:

The last sentence of Paragraph 2, as previously filed,

states: "Mr. Horowitz was a teacher at 'Atenisi High School.” It

should read: "Mr. Horowitz was a teacher at 'Atenisi University, a

learning institution affiliated with Atenisi High School.”

tfully submitted,

"ay tee (sa)

"ROSCOE C. if Jr., D.C. Bar #246470 =

United States Attorney

“Nak £.

MARK E. NAGLE, D.C. Bar #416364

Assistant United States Attorney

LISA S. GOLDFLUSS, D.C. Bar #417787

Assistant United States Attorney

555 4th Street, N.W., Tenth Fl.

Washington, D.C. 20530

(202) 514-7198

Attorneys for Defendant

Seas

Mey

tte

ean

oe i!

26, os es

APPENDIX E

MS 284: Early Termination of Service

Effective Date: 7/26/96 (v.3)

Supersedes: MS 284, 2/2

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