Firing a Government ‘Volunteer’ Isn’t Easy

The process for firing a federal employee is not quick or easy. The separation of a “volunteer” may not be quick or easy either.

A recent decision of the D.C. Circuit Court of Appeals concerns availability under the Freedom of Information Act (FOIA) of a Peace Corps draft Administrative Separation Report (ASR). (Horowitz v. Peace Corps, U.S.C.A.D.C., No. 04-5065, 10/28/05)

Under the Peace Corps Manual, if the agency considers separating a volunteer early, there is a process to follow. The volunteer is to be told of the specific conduct that gave rise to consideration of an early termination, a chance to respond, and given the opportunity to resign before a final decision is made. If the volunteer opts for resignation, then the ASR is not completed and not made part of the agency’s records. But the resignation must occur before the final decision is made to separate; otherwise the ASR is completed.

In this case, the volunteer opted to resign before the ASR was finalized. So the Peace Corps manager did not complete the report and did not forward it to the office of record within the agency. But, at the volunteer’s request the manager kept a copy of the draft report in his safe. The former volunteer requested a copy of the document under the FOIA and the agency declared it covered by exemption 5 and refused to release it. The agency also denied his request for access to the document under the Privacy Act. Finally, the agency refused to disclose the identity of the “alleged victim” of the volunteer’s actions that were the subject of the draft ASR.

The U.S. District Court for the District of Columbia sided with the agency. (No. 00cv00848) The court determined that the agency properly invoked exemption 5 in denying the draft ASR under FOIA. The lower court also found that the draft ASR was not part of a system of records subject to disclosure under the Privacy Act. But the district court did order the agency to disclose the identity of the alleged victim.

The appeals court concluded that the District Court was correct in applying exemption 5 to the document and in its reasoning on application of the Privacy Act. It however disagreed as to disclosure of the identity of the alleged victim of the Peace Corps volunteer’s actions and ruled that the agency had properly refused to disclose that information. The court indicated that the alleged victim’s privacy interest clearly outweighed any public interest in disclosing his identity, calling such interest “virtually nonexistent.” (Opinion p. 11)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.