Horowitz v. Peace Corps

• Decision Date: 28 October 2005
• Docket Number: No. 04-5279.,No. 04-5065.,No. 04-5087.,04-5065.,04-5087.,04-5279.
• Parties: Michael G. HOROWITZ, Ph.D, Appellant/Cross-Appellee v. PEACE CORPS, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

428 F.3d 271

Michael G. HOROWITZ, Ph.D, Appellant/Cross-Appellee v. PEACE CORPS, Appellee/Cross-Appellant.

No. 04-5065.

No. 04-5087.

No. 04-5279.

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2005.

Decided October 28, 2005.

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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 brief 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.

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 allowing 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 FOIA 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.

I

From 1998 to 2001, Arturo Giron was Peace Corps Country Director for the Kingdom of Tonga; his duties included supervision of Peace Corps volunteers stationed in Tonga. On March 7, 1999, a female volunteer told Giron a young Tongan man claimed he had been the victim of sexual misconduct involving Michael Horowitz. The young man, a student at 'Atenisi High School, was 18 or 19 years old and appeared to have been under 18 at the time of the incident.

Giron consulted the Peace Corps Manual and contacted the General Counsel's office for advice. He also interviewed the Tongan student, who repeated substantially the same allegations. Giron and Sally Olsonoski, another Peace Corps worker, then met with Horowitz. Horowitz remembered the incident but explained that the encounter was consensual and assured Giron the student had been 18 years old at the time. Olsonoski testified that Horowitz said, "I 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, according 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 making a final decision or informing Horowitz that he had done so. At Horowitz's request, however, Giron kept the draft ASR in his office safe.

On June 18, 1999, Horowitz requested a copy of the draft ASR through FOIA, 5 U.S.C. § 552. The Peace Corps denied his request on August 17, 1999. On November 15, 1999, Horowitz administratively appealed the denial, but the Peace Corps again denied his request on April 19, 2000. Horowitz then filed suit in the United States District Court for the District of Columbia, seeking disclosure of the draft ASR under FOIA and the Privacy Act, 5 U.S.C. § 552a. The Peace Corps contended the draft ASR was a predecisional document exempt from release under FOIA and that releasing the student's name would be a clearly unwarranted invasion of his privacy. The Peace Corps also argued the document was not contained in a system of records and thus was not subject to release under the Privacy Act.

The district court granted partial summary judgment to the Peace Corps, ruling that the document was not subject to release under the Privacy Act, and partial summary judgment to Horowitz, ruling that release of the student's name would not be a clearly unwarranted invasion of privacy under FOIA. After an evidentiary hearing, the district court ruled in favor of the Peace Corps, allowing the document to be withheld as predecisional. However, the court confirmed that the identity of the student was a segregable fact that must be released to Horowitz; release of the name was stayed pending this appeal.

II

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 opportunity to judge the credibility of witnesses. Fed.R.Civ.P. 52(a); see Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1407 (D.C.Cir.1988).

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 any person." 5 U.S.C. § 552(a)(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 exemption privileges "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

The privilege is meant to protect "predecisional communications" from disclosure so as to "prevent injury to the quality of agency decisions." Id. at 151, 95 S.Ct. 1504. 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 perform its functions." Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C.Cir.1987). "Finally, even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980).

Whether the draft ASR properly qualified as a deliberative document was the subject of an evidentiary hearing. The evidence before the court included section 284 of the Peace Corps Manual, which outlines the required process for early termination of service of Peace Corps volunteers; the depositions of Giron and Horowitz; and the testimony of Giron, Horowitz, and Sally Olsonoski at the evidentiary hearing. The manual authorizes administrative separation for conduct ranging from minor infractions like failing to wear a motorcycle helmet, to criminal convictions, to espionage. Under these provisions, the volunteer is entitled to be informed of the specific conduct at issue, have an opportunity to respond, and be apprised of the alternative of resignation. The disciplinary options range from taking no action, to imposing conditions on further service, to administrative separation. If a volunteer resigns before a final decision to terminate him is made, the ASR is not completed. If the volunteer resigns "after the decision to administratively separate has been made but before the process is completed, the Administrative Separation Report must be completed and forwarded" to the Peace Corps's Office of Volunteer Services.

During the evidentiary hearing, Giron and Olsonoski testified that no final decision was ever made to administratively separate Horowitz. Giron testified it was "the first time [he] had encountered [so serious] an incident," and it was his first experience with an administrative separation. He sought further guidance from senior staff in Tonga and consulted on a daily basis with Peace Corps headquarters, the Office of the General Counsel, and regional senior staff. He spent "literally hours and hours on the telephone with Washington, D.C., talking to the [G]eneral [C]ounsel." On March 16,...