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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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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,

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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.

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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).

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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.

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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).

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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

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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

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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 ...”)

1]

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

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a

ee

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.

=

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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.

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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 —

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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).

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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.

17

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

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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

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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.

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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

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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)).

22

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’

23

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).

24

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

ws

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

25

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

27

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.

28

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.”).

29

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.

30

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

|
t
©
wy

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

il
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

V.

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.

3

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

4
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.

I]

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

5

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).

A

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

6
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

7

[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

8

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.

B

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.

Cc

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

9

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.

10

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

1]

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).

12

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

13

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

14

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-

15

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

16

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.

IV

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.

17

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

18

to be more credible than the evidence Horowitz presented.
Hence, Horowitz has not shown that the district court abused its
discretion in either instance.

V

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

20

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.

21

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

22

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.

24

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

25

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

26

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:

27

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

28

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

29

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

30

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.

31

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”)

32

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

33

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

34

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

35

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

36

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.

37

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

38

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

39

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.

42

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.

43

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.

44

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 exhib

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0759%3A1. Public record. Not legal advice.