486 U.S. 1 (1988), 86-1357, United States Department of Justice v. Julian

Docket Nº:No. 86-1357
Citation:486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1, 56 U.S.L.W. 4403
Party Name:United States Department of Justice v. Julian
Case Date:May 16, 1988
Court:United States Supreme Court

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486 U.S. 1 (1988)

108 S.Ct. 1606, 100 L.Ed.2d 1, 56 U.S.L.W. 4403

United States Department of Justice

v.

Julian

No. 86-1357

United States Supreme Court

May 16, 1988

Argued January 19, 1988

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Syllabus

The two respondents are federal prison inmates whose requests for copies of their presentence investigation reports were denied by the Parole Commission. Pursuant to Federal Rule of Criminal Procedure 32(c), a probation officer prepares the presentence report, which contains background information about the defendant and the circumstances of his offense, for use by the district court at sentencing. Under the Rule, the court, before imposing sentence, must permit the defendant and his counsel to read the report, except portions, inter alia, containing diagnostic opinions, confidential sources of information, or information that, if disclosed, might cause harm to the defendant or others. After sentencing, the reports are typically transmitted to the Bureau of Prisons for its use, and then -- pursuant to the Parole Commission and Reorganization Act of 1976 (Parole Act) -- are sent to the Parole Commission for eventual use in determining whether a prisoner should be paroled. The Parole Act provides that, before a scheduled parole hearing is held, the prisoner must be given reasonable access to the report, but exempts the same three categories of information as Rule 32(c). After the Parole Commission denied their disclosure requests, respondents filed separate suits under the Freedom of Information Act (FOIA), and the District Courts ordered disclosure. Consolidating petitioners' appeals, the Court of Appeals affirmed. It rejected petitioners' contentions that presentence reports are exempt from disclosure under both

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Exemption 3 and Exemption 5 of the FOIA. Exemption 3 pertains to matters that are "specifically exempt[ed] from disclosure" by another statute that "refers to particular types of [108 S.Ct. 1608] matters to be withheld." Exemption 5 makes the FOIA inapplicable to "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."

Held: The FOIA requires that the presentence reports be disclosed by petitioners, except as to matters relating to confidential sources, diagnostic opinions, and possibly harmful information. Pp. 8-14. Pp. 8-14.

(a) Beyond protecting from disclosure the matters noted above, neither Rule 32(c) nor the Parole Act satisfies Exemption 3's requirements. Recent changes, leading to their present provisions, have been made in both the Rule and the Parole Act, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. Although Rule 32's provision requiring that all copies of reports furnished under the Rule be returned to the court, unless it directs otherwise, qualifies somewhat the defendant's access to the presentence report when it is furnished by the district court in the context of sentencing, it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that "specifically exempt[s] from disclosure" for purposes of Exemption 3. Moreover, the Parole Act does not contain a similar provision. Pp. 8-11.

(b) Exemption 5 of the FOIA does not support withholding of the presentence reports. The Exemption incorporates the privileges which the Government enjoys under relevant statutory and case law in the pretrial discovery context. The test under the Exemption is whether the documents would be "routinely" or "normally" disclosed upon a showing of relevance. Although, in both civil and criminal cases, the courts have been reluctant to give a third party access to the presentence report prepared for some other individual in the absence of a showing of special need, a similar restriction on discovery is not applicable when the individual requesting discovery is the subject of the report. The thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks strongly against the existence of a Government privilege when the disclosure request is from the subject of the report. In this context, nothing in the case law or Exemption 5 prevents the conclusion that disclosure of presentence reports to the individual who is the subject of the report is "routine." FTC v. Grolier Inc., 462 U.S. 19, distinguished. Pp. 11-14.

806 F.2d 1411, affirmed.

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REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 15. KENNEDY, J., took no part in the consideration or decision of the case.

REHNQUIST, J., lead opinion

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Respondents in this case are prison inmates who sued under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for disclosure of their presentence investigation reports. These reports are prepared by a probation officer for use by the district court at sentencing; they contain background information about a defendant and the circumstances of his offense. After sentencing, the reports are typically transmitted to the Bureau of Prisons, and then to the Parole Commission for eventual use in determining whether a prisoner should be released on parole. The courts below ordered petitioners -- the Department of Justice and the Parole Commission -- to disclose the reports. The question we are now called on to decide is whether the [108 S.Ct. 1609] FOIA requires that these presentence investigation reports be disclosed by petitioners or whether the reports fall under one of the FOIA's statutory exemptions.

Rule 32(c) of the Federal Rules of Criminal Procedure outlines the requirements for preparation and disclosure of a presentence report for a criminal defendant who has been adjudged guilty. Rule 32(c)(1) provides that, before imposition of sentence, the probation service of the district court shall make an investigation into the defendant's background and

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the circumstances of the offense.1 The results of the investigation are compiled into a report which, under Rule 32(c)(2), must contain the defendant's prior criminal record, a description of the circumstances of the offense and the defendant's behavior, a discussion of the loss or harm suffered by any victims of the offense, and any other information that might aid the court in sentencing, including the restitution needs of the victim.

The Rule also specifies the procedure by which the court is to disclose the report and its contents to a defendant. Rule 32(c)(3)(A) states that,

[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report . . . exclusive of any recommendation as to sentence.

The court may not disclose, however, portions of the report that contain

diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons.

Ibid. If the report does contain this type of information, the court is required to give orally or in writing a summary of the factual information that has been withheld and that is to be relied on in determining an appropriate sentence. Once the report has been disclosed, the defendant and his counsel are to be given an opportunity to comment on the report and to introduce evidence showing that the report contains factual inaccuracies. Rule 32(c)(3)(E) also provides that

[a]ny copies of the presentence investigation report made available to the defendant and his counsel and the attorney for the government shall

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be returned to the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs.

After the defendant is sentenced, a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant's classification as an inmate, see 28 CFR §§ 524.10, 524.12(e) (1987), choosing an appropriate treatment program, or deciding eligibility for various privileges. See Brief for Petitioners 7 (citing Fennell & Hall, Due Process at Sentencing, 93 Harv.L.Rev. 1615, 1679 (1980)).2 A copy of the presentence report is also transmitted to the United States Parole Commission pursuant to § 2(e) of the Parole Commission and Reorganization Act of 1976 (Parole Act),3 18 U.S.C. § 4205(e),

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which makes it the "duty of the . . . probation officers" to furnish "information available to such officer . . . concerning any eligible prisoner or parolee" to the Commission upon request. The Parole Commission is then required by statute to consider the report, among other documents, in making a parole decision. § 4207(3).

The Parole Act also requires that, at least 30 days before a scheduled parole hearing, the prisoner be provided with "reasonable access to [the] report or other document to be used by the Commission in making" its parole determination. § 4208(b). As in Rule 32(c)(3)(A), however, the Act exempts from this disclosure requirement the same three categories of information -- diagnostic opinions, confidential information, and potentially harmful information -- that were protected from disclosure by the district court. The Act also requires that, if any such information is excluded from disclosure, it is the duty of the Commission (or any other agency) "to summarize the basic contents of the material withheld . . . and furnish such summary to the inmate." § 4208(c)(3); see also 28 CFR...

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