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CROSKEY v. UNITED STATES OFFICE OF SPECIAL COUNSEL

June 23, 1998

LORI M. CROSKEY, Plaintiff,
v.
UNITED STATES OFFICE OF SPECIAL COUNSEL, Defendant.



The opinion of the court was delivered by: HARRIS

OPINION

 Before the Court are plaintiff's motion for an in camera examination, defendant's opposition thereto, and plaintiff's reply. The Court also re-evaluates defendant's motion to dismiss or, in the alternative, for summary judgment, filed March 6, 1995, in light of the supplemental affidavit of William E. Reukauf. *fn1" Upon consideration of the entire record, the Court denies plaintiff's motion for in camera review and grants defendant's motion.

 BACKGROUND

 Plaintiff was employed as an Extension Librarian with the United States Army, Giessen Military Community, Germany, until her termination on May 28, 1982. Plaintiff contends that she was terminated in retaliation for preparing a report which disclosed problems in the library system and alleged financial mismanagement. Plaintiff further alleges that evidence used to justify her termination was fabricated and that her supervisor coerced other employees into making statements against her.

 In December 1982, plaintiff filed a complaint with the United States Office of Special Counsel ("OSC") alleging that she had been arbitrarily and unfairly terminated from her position. After an investigation, the OSC concluded that there were no reasonable grounds to believe that plaintiff's discharge was improper and closed the investigation. On November 11, 1985, the Legal Director for the Government Accountability Project ("GAP") contacted the OSC on plaintiffs behalf and requested a copy of her 1983 OSC investigative file under the FOIA. In January 1986, the GAP provided the OSC with a copy of plaintiff's report. In response, the OSC reopened the investigation.

 An OSC investigator, Donald Blake, complied a 61-page Report of Investigation ("ROI") and accompanying exhibits. On February 9, 1998, Blake distributed a copy of the ROI, along with exhibits and additional correspondence and documentation, to the Associate Special Counsel for Prosecution. After reviewing the ROI, the Special Counsel decided that the investigation into plaintiff's discharge should be closed.

 On June 20, 1988, in response to plaintiff's multiple FOIA requests, the OSC agreed to a limited waiver of its attorney work product privilege and produced a redacted copy of pages 1-43 of the ROI. The OSC withheld the remainder of the ROI pursuant to Exemptions 5 and 7 of the FOIA. Plaintiff appealed, but the OSC affirmed its decision.

 On September 29, 1994, plaintiff requested, pursuant to the Privacy Act, that a copy of the complete ROI be provided to her. Plaintiff also requested that the first 43 redacted pages that were provided to her be corrected. The OSC denied her request, noting that the ROI was "exempt from the Privacy Act's access and amendment provisions" under 5 U.S.C. § 552a(k)(2) and 5 C.F.R. § 1830.5. This decision was affirmed on appeal. Plaintiff, proceeding pro se, filed the instant action requesting relief under the Privacy Act and the FOIA on December 27, 1994.

 STANDARD OF REVIEW

 A motion to dismiss should not be granted "unless plaintiff[] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Kowal v. MCI Communications Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). All factual doubts must be resolved and all inferences made in favor of the plaintiff. Tele-Communications of Key West, Inc. v. United States, 244 U.S. App. D.C. 335, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985). Moreover, in order for a pro se litigant's claim to be dismissed, it must appear beyond a doubt that she cannot prove a set of facts to support her claims Crisafi v. Holland, 211 U.S. App. D.C. 75, 655 F.2d 1305, 1308 (D.C. Cir. 1981).

 In the event matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56 Fed. R. Civ. P. 12(b); Americable Int'l, Inc. v. Department of the Navy, 327 U.S. App. D.C. 159, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 300 U.S. App. D.C. 263, 988 F.2d 1221, 1227 (D.C. Cir. 1993) (Mikva, J., dissenting). Summary judgment may only be granted if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A district court may grant summary judgment to the government in a FOIA case if the agency submits clear, specific, and reasonably detailed affidavits which "'describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.'" PHE, Inc. v. Department of Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 250 (D.C. Cir. 1993) (quoting King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir. 1987)).

 DISCUSSION

 Defendant first contends that plaintiff's Privacy Act claim is barred because the ROI is exempt from the access and amendment provisions of the Privacy Act. The Court agrees. According to 5 U.S.C. § 552a(k)(2):

 
(k) Specific Exemptions. The head of any agency may promulgate rules . . . to exempt any system of records within the agency from subsection[ ] . . . (d) . . . of ...

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