White v. United States Dept. of Justice, Civ. A. No. 83-2703.

• Citation: 606 F. Supp. 880
• Decision Date: 10 January 1985
• Docket Number: Civ. A. No. 83-2703.
• Parties: Paul A. WHITE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

606 F. Supp. 880

Paul A. WHITE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civ. A. No. 83-2703.

United States District Court, District of Columbia.

January 10, 1985.

COPYRIGHT MATERIAL OMITTED

Paul A. White, pro se.

Wayne P. Williams, Asst. U.S. Atty., Civ. Div., Washington, D.C., for defendant.

MEMORANDUM OPINION

FLANNERY, District Judge.

This matter comes before the court on the parties' motions for summary judgment on plaintiff's action for disclosure of various documents held by the United States Parole Commission, the Executive Office of the United States Attorney's Office, and the Bureau of Prisons under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Defendants have withheld five documents in whole or in part under various exemptions to FOIA. For reasons discussed herein, plaintiff's motion shall be granted in part and denied in part, defendant's motion shall be granted in part and denied in part, and defendant shall submit one of the documents to the court for in camera examination.

Background

In separate requests during June and August 1983, plaintiff, then an inmate at the Federal Correctional Institution in Seagoville, Texas, sought copies of various documents from the U.S. Parole Commission, the Bureau of Prisons, and the United States Attorney's Office for the Western District of Missouri pursuant to the FOIA. After a number of documents responsive to plaintiff's request were identified and released, plaintiff brought suit to compel disclosure of other records which the agencies had determined to be exempt from disclosure under the Act. Several documents were released subsequent to plaintiff's decision to bring suit.

With respect to the United States Parole Commission, two documents have been withheld in their entirety.¹ The Commission argues that a presentence report prepared for the United States District Court for the Western District of Missouri and a diagnostic study prepared by the Bureau of Prisons are exempt from disclosure under exemptions 3 or 5 of FOIA, 5 U.S.C. § 552(b)(3), or that, in the alternative, those documents are not available under FOIA because the FOIA is "displaced" by the Parole Commission Reorganization Act and Rule 32 of the Federal Rules of Criminal Procedure.

The Bureau of Prisons has also withheld its copies of the presentence report and the diagnostic study prepared for the sentencing court, which are identical to those withheld by the Parole Commission, under exemption 3.² In addition, the Bureau of Prisons has withheld in its entirety a two-page letter dated May 12, 1983 from an official of the Platte County, Mo. Juvenile Court addressed to an official of the Bureau of Prisons ("long letter"), and has partially withheld a one-page letter of the same date from an employee of the Platte County Juvenile Court addressed to a Bureau employee ("short letter"). Defendant's Memorandum at 4-5. The only deletions from the short letter were the names of the sender and the addressee. The agency argues that contents of the long letter and the names of the sender and the addressee in the short letter are exempt from disclosure under FOIA exemption 6, 5 U.S.C. § 552(b)(6).³

The EOUSA has not claimed that any FOIA exemption applies to the one document which it located in response to plaintiff's request. Rather, EOUSA determined that the document, an FBI Special Agent's six-page handwritten draft of a memorandum to his supervisor concerning an investigation of plaintiff conducted by the FBI, originated with the Federal Bureau of Investigation and referred it to that agency for direct reply to plaintiff. Defendant's Memorandum at 5. The FBI ultimately released three of the six pages, claiming that the remainder was exempt from disclosure under exemptions 7(C) and 7(D). Memorandum in Support of Defendant's Supplemental Motion for Summary Judgment at 2-3 hereinafter cited as Defendant's Supplemental Memorandum.

Plaintiff argues that defendant's decision to withhold the presentence report and the diagnostic study on the basis of exemption 3 is improper as a matter of law as a result of several decisions of this circuit holding that presentence reports are subject to the provisions of FOIA. Further, plaintiff argues that the FBI's justification for partially withholding its document is insufficient under Vaughn and other precedents of this jurisdiction, and thus that the notes must be disclosed as a matter of law. Finally, plaintiff argues that no "clearly unwarranted invasion of personal privacy" is threatened by releasing the names excised from the short letter, and therefore exemption 6 does not justify nondisclosure. Regarding the long letter, plaintiff argues that there may no longer be any privacy interest in refusing disclosure because the Parole Commission has released a letter to him which is very similar to the description of the long letter withheld by the Bureau of Prisons. Alternatively, he argues that he is entitled to reasonably segregable portions of the long letter. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 10-12 hereinafter cited as Plaintiff's Opposition.

Discussion

I. Presentence Report and Diagnostic Study

Although the law of several other circuits is to the contrary, it has been conclusively determined in this jurisdiction that presentence reports are "agency records" for purposes of FOIA. See Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1459 (D.C.Cir.1984); Carson v. United States Dep't of Justice, 631 F.2d 1008, 1013-17 (D.C.Cir.1980).⁴ Defendant has belatedly conceded this point. See Reply to Plaintiff's Supplemental Memorandum in Support of Motion for Summary Judgment at 3. Therefore, unless one of FOIA's nine exemptions applies, the presentence report must be released to plaintiff.

Defendant first argues that FOIA's exemption 3 justifies the decision by the Bureau of Prisons and the Parole Commission to withhold the presentence report in its entirety because those agencies are barred from disclosing presentence reports by statute. Under exemption 3, FOIA's disclosure requirements do not apply to documents that are

specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). Defendant argues that presentence reports fall within this exemption based on the language of rule 32(c) of the Federal Rules of Criminal Procedure and the provisions of 18 U.S.C. § 4208(b), which, the government argues, require that presentence reports be withheld from the public "in such a manner as to leave no discretion on the issue," or establish "particular criteria for withholding." See Defendant's Memorandum at 6-11.

Under rule 32(c), a defendant must be permitted to read the presentence report at a reasonable time before imposing sentence. Fed.R.Crim.P. 32(c)(3)(A). However, any copies of the report made available to the defendant or his counsel must be returned immediately following sentencing, "unless the court, in its discretion, otherwise directs." Fed.R.Crim.P. 32(c)(3)(E). Defendant argues that the latter provision alone meets the criterion of exemption 3 because it leaves neither the Bureau of Prisons nor the Parole Commission with the discretion to disclose a presentence report and "establishes particular criteria for withholding." Defendant's Memorandum at 7.

The government's argument that the Parole Commission has no discretion to disclose presentence reports because to do so would "nullify" rule 32(c) has been clearly rejected by the Court of Appeals for the District of Columbia Circuit. In Carson v. United States Department of Justice in 1980, and again in Lykins v. Department of Justice in 1984, the court rejected the government's position that presentence reports could not be considered discoverable "agency records" under FOIA because to do so would render meaningless the sentencing court's ability to forbid the defendant to retain a copy of the report after sentencing. Lykins, 725 F.2d at 1459 n. 4.

The basis for these holdings was the requirement under the Parole Commission and Reorganization Act ("PCRA"), 18 U.S.C. § 4201 et seq. (1976), that the Parole Commission consider available presentence reports in making parole determinations and provide to a requesting prisoner in advance of any parole determination "reasonable access to a report or other document to be used by the Commission in making its determination." Id., §§ 4207, 4208(b); see Carson, 631 F.2d at 1012-13. Because the courts no longer have any discretion to prevent transmittal of presentence reports to parole authorities or to prevent access by inmates to presentence reports prior to parole determinations, the Carson court rejected the notion that rule 32(c) limits the discoverability under FOIA of a presentence report held by the Parole Commission. See Carson, 631 F.2d at 1012-13; see also Lykins, 725 F.2d at 1459 & n. 4.

The court's reasoning in Carson and Lykins is just as applicable to defendant's argument that rule 32(c) should provide a per se exemption for presentence reports under section 552(b)(3). Carson and Lykins held that sections 4207 and 4208(b) of the PCRA curtailed judicial control over presentence reports so as to render them agency records of the Parole Commission for purposes of FOIA. In other words, judicial control over presentence reports under rule 32(c) does not affect the Parole Commission's responsibility to provide access to presentence reports under the PCRA. Therefore, rule 32(c) cannot be argued to provide a bar against the disclosure of presentence reports held by the Parole Commission so as to leave the Commission with no discretion on their release, as required by exemption 3. Prior to...