Horowitz, Michael G. v. Peace Corps

428 F.3d 271, 368 U.S. App. D.C. 192, 68 Fed. R. Serv. 818, 2005 U.S. App. LEXIS 23332, 2005 WL 2806357
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 28, 2005
Docket04-5065, 04-5087, 04-5279
StatusPublished
Cited by80 cases

This text of 428 F.3d 271 (Horowitz, Michael G. v. Peace Corps) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horowitz, Michael G. v. Peace Corps, 428 F.3d 271, 368 U.S. App. D.C. 192, 68 Fed. R. Serv. 818, 2005 U.S. App. LEXIS 23332, 2005 WL 2806357 (D.C. Cir. 2005).

Opinion

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 ’Ateni-si 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 inteiwiewed the Tongan student, who repeated substantially the same allegations. Giron and Sally 01-sonoski, another Peace Corps worker, then met with Horowitz. Horowitz remembered the incident but explained that the encounter was consensual and assured Gir-on the student had been 18 years old at the timé. 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 “[tjhere 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 *275 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 intraagency 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 *276 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).

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428 F.3d 271, 368 U.S. App. D.C. 192, 68 Fed. R. Serv. 818, 2005 U.S. App. LEXIS 23332, 2005 WL 2806357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horowitz-michael-g-v-peace-corps-cadc-2005.