United 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 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.
2
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 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, “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, 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 making 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.
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
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 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 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.” Id. 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 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
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]eneral [C]ounsel 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
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 FOIA 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.
C
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 appeal.
To determine whether release of a file would result in a
clearly unwarranted invasion of personal privacy, we must
balance the private interest involved (namely, “the individual’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’ right
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” nor
“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’l 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.1 In no
1
Horowitz’s unsupported allegation that the Peace Corps is
protecting the student’s name in order to cover up for its failure to
11
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).2 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
trigger 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 regularity.
2
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.” Id. 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. Id. Thus, the Court found
that the privacy interests outweighed the “negligible” public
interest at stake. Id. 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 protection of 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 injuries, has prompted
states to pass rape shield laws and to advocate against the
publication of rape victims’ names.” Id. 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 only 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
all such FBI investigations are comprehensive or whether sexual
misconduct by agents is common.” Id. 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.
III
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(a)(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.3
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
3
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 Administrative Procedure Act,
entitle him to know the allegations contained in the draft ASR.
“It 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 final judgment due to, among other reasons,
mistake, 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.