Lykins v. U.S. Dept. of Justice

• Decision Date: 27 January 1984
• Docket Number: No. 83-1031,83-1031
• Citation: 725 F.2d 1455,233 U.S.App.D.C. 349
• Parties: Joseph Alan LYKINS, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General of the United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1455

725 F.2d 1455

233 U.S.App.D.C. 349

Joseph Alan LYKINS, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General of

the United States.

No. 83-1031.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 9, 1983.

Decided Jan. 27, 1984.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 82-241).

Eric R. Glitzenstein, Washington, D.C., with whom Alan B. Morrison and Katherine A. Meyer, Washington, D.C., were on brief, for appellant.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the briefs were filed, and Royce C. Lamberth, R. Craig Lawrence, and John C. Martin, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Before WRIGHT, WALD and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Opinion dissenting in part and concurring in part filed by Circuit Judge HARRY T. EDWARDS.

J. SKELLY WRIGHT, Circuit Judge:

In this Freedom of Information Act (FOIA) case appellant--a federal prisoner--sought relief in the District Court for the refusal of the United States Parole Commission to release three documents to him: his presentence report, a few lines excised from a letter written by a probation officer to the Commission, and a psychological report written about him. The District Court granted the Commission's motion for summary judgment and dismissed appellant's suit. In this opinion we reverse the District Court with respect to the presentence report and the psychological report, and affirm the District Court's holding that the Commission did not have to release the material excised from the letter.

I. FACTUAL BACKGROUND

On October 5, 1981 appellant made a FOIA request to the Parole Commission for a number of documents about himself in the possession of the Commission. After some delays--allegedly due to the large number of pending requests--the Commission released some of the documents to appellant on December 18, 1981, and then released additional documents on April 21, 1982. The Commission withheld all or part of three documents:

(1) A presentence report originally prepared in 1977 by a probation officer for the District Court for the Eastern District of Virginia (hereinafter referred to as the "Virginia District Court"). The Commission withheld the entire report on the ground that it was a court document rather than an agency record, and that it therefore was not subject to FOIA. See 5 U.S.C. Sec. 552(a)(3) & (4)(B) (1982) (providing that agencies make "agency records" available to the public and granting District Courts authority to order production of "agency records improperly withheld").

(2) Portions of a letter (the "Benoit letter") from Probation Officer Thyra Benoit to a Parole Commission employee, dated March 3, 1981. The Commission alleges that disclosure of the excised portions of the letter would reveal the identity of a confidential source, and those portions are therefore privileged under Exemptions 7(C) and (D) of FOIA. See 5 U.S.C. Sec. 552(b)(7)(C) & (D) (1982). ¹

(3) A "psychological test screening report" (hereinafter referred to as the "psychological report"), dated December 29, 1977, and prepared by the Bureau of Prisons staff. This report was withheld in its entirety under FOIA Exemptions 5 and 7(C), 5 U.S.C. Sec. 552(b)(5) & (7)(C) (1982), ² on the ground that its disclosure would be potentially disruptive to appellant's response to institutional programs.

Meanwhile, as the Commission was processing appellant's request, appellant filed a FOIA complaint in the District Court for the District of Columbia (hereinafter referred to as "D.C. District Court") on January 11, 1982. On February 22, 1982 he moved for summary judgment, and the government filed a cross-motion for summary judgment on May 17, 1982. The government accompanied its motion with affidavits of Linda Marble, Chief Case Analyst for the National Appeals Board of the Parole Commission (hereinafter the "public Marble affidavit"), and Billy Torrans, Chief Probation Officer for the Virginia District Court (hereinafter the "Torrans affidavit"). The D.C. District Court held a hearing on September 23 (in appellant's absence because appellant was incarcerated and litigating his FOIA case pro se ), at which the court requested a supplemental affidavit concerning the Benoit letter and the psychological report. On October 8 the government submitted a second affidavit of Linda Marble (hereinafter the "in camera Marble affidavit"), along with complete copies of the Benoit letter and the psychological report.

On October 27, 1982 the D.C. District Court entered a memorandum opinion and order granting the government's motion for summary judgment. The court held that the presentence report was an agency record and thus subject to FOIA. However, the court held that, because the Virginia District Court "considers presentence reports confidential court documents which it loans to the Parole Commission only to enable the Commission to carry out its statutory function," Memorandum Opinion in D.D.C.Civil Action No. 82-241 (October 25, 1982) (Dist.Ct.Op.) at 4, Joint Appendix (JA) 79, the Parole Commission had not "improperly" withheld it within the meaning of 5 U.S.C. Sec. 552(a)(4)(B) (1982) (granting District Courts authority to order release of "agency records improperly withheld"). The court also held that, based in part on the information in the in camera Marble affidavit, the Benoit letter portions were exempt from FOIA for the reasons urged by the government. Finally, the court held that, based again in part on the in camera Marble affidavit, the psychological report also came within the FOIA exemptions urged by the government. Appellant here challenges all of these holdings. ³

II. THE PRESENTENCE REPORT

In Carson v. U.S. Dep't of Justice, 631 F.2d 1008 (D.C.Cir.1980), this court held that a presentence report is an agency record for purposes of FOIA. In this case the Parole Commission ignores the rationale underlying our Carson decision and once again advances the argument we rejected in Carson; appellees' argument reduces to the assertion that, because presentence reports originate in the courts (which are not "agencies" under FOIA), the originating court may under current law continue to control the report after it has been turned over to the Parole Commission. Under the principles developed in Goland v. CIA, 607 F.2d 339 (D.C.Cir.1978), vacated in part on other grounds, 607 F.2d 367 (D.C.Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), such control would be sufficient to make the report a "court record," rather than an "agency record," and thus outside the scope of FOIA. Furthermore, appellees and the D.C. District Court seem to believe that the Virginia District Court's assertions of control over the presentence report, if not sufficient to deny the report the status of agency record, should nonetheless be sufficient to make the Parole Commission's withholding of the report not "improper." The result of this line of reasoning would be the same as the result we rejected in Carson: the presentence report would be beyond the scope of FOIA.

We here reaffirm our decision in Carson: a presentence report in the hands of the Parole Commission under current law is an agency record for purposes of FOIA. We once again reject the arguments we rejected in Carson and we also decline to entertain these arguments under the guise of a discussion of what is an "improper" withholding. We believe that our Carson decision was clear enough on these points. However, if any doubts remain, we hope that our discussion here finally settles the status of presentence reports under FOIA.

A. Agency Records

In Goland v. CIA, supra, this court grappled with the problem of what constitutes an "agency record" for purposes of FOIA. In Goland the CIA had refused to release records concerning the legislative history of the CIA's organic statutes. This court affirmed the refusal on the ground that the document sought (a transcript of a secret House of Representatives hearing) was a congressional document rather than an agency record. The Goland court stated that the appropriate test to determine whether a public document was an agency record was "whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides." 607 F.2d at 347.

Carson applied the Goland test to presentence reports. The 10th Circuit, in Cook v. Willingham, 400 F.2d 885 (10th Cir.1968) (per curiam ), had held with little discussion that presentence reports are not agency records, on the ground that such reports were prepared by courts, which are not "agencies" for purposes of FOIA. See 5 U.S.C. Sec. 551(1)(B) (1982). The Carson court neither approved nor disapproved the Cook result, but held that the law concerning the use of presentence reports had changed substantially in two ways since the time of Cook. First, Rule 32(c) of the Federal Rules of Criminal Procedure required sentencing courts to disclose much of the contents of presentence reports to requesting defendants before imposing sentence. This provision had been added in 1975, and had "substantially dilute[d] the sentencing court's control over the presentence report." Carson, supra, 631 F.2d at 1012. Second--and more importantly--Congress had recently given the Parole Commission important responsibilities with respect to presentence reports. The Parole Commission and Reorganization Act, Pub.L. 94-233, 90 STAT. 219, had required the Parole Commission to use presentence reports in making parole determinations, see 18 U.S.C. Sec. 4207 (1982), and had required courts to transmit the reports to the Parole Commission for these purposes, see id. Sec. 4205(e). The statute...