806 F.2d 1411 (9th Cir. 1986), 85-2649, Julian v. United States Dept. of Justice

Docket Nº:85-2649, 85-2751.
Citation:806 F.2d 1411
Party Name:Kenneth Michael JULIAN, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant. Margaret J. WALLACE, Plaintiff-Appellee, v. UNITED STATES PAROLE COMMISSION, and Charles Turnbo, Warden, F.C.I., Pleasanton, CA, Defendants-Appellants.
Case Date:December 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1411

806 F.2d 1411 (9th Cir. 1986)

Kenneth Michael JULIAN, Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant.

Margaret J. WALLACE, Plaintiff-Appellee,

v.

UNITED STATES PAROLE COMMISSION, and Charles Turnbo, Warden,

F.C.I., Pleasanton, CA, Defendants-Appellants.

Nos. 85-2649, 85-2751.

United States Court of Appeals, Ninth Circuit

December 30, 1986

Argued and Submitted Sept. 11, 1986.

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[Copyrighted Material Omitted]

Page 1413

[Copyrighted Material Omitted]

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Kenneth Michael Julian, Safford, Ariz., John S. Newberry, Staff Atty., Kansas City, Mo., Margaret J. Wallace, Hollywood, Cal., for plaintiff-appellee.

Richard K. Willard, Asst. Atty. Gen., Stephen M. McNamee, Joseph P. Russoniello, U.S. Attys., Leonard Schitman, Sandra Wien Simon, Attys., Appellate Staff, Dept. of Justice, Washington, D.C., for defendant-appellant.

On Appeal from the United States District Court for the District of Arizona.

On Appeal from the United States District Court for the Northern District of California.

Before WALLACE, ALARCON and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Kenneth Michael Julian and Margaret J. Wallace requested copies of their presentence investigation reports under the Freedom of Information Act, 5 U.S.C. Sec. 552. In separate summary judgment motions Julian and Wallace obtained orders requiring release of the reports. The government has appealed both judgments and the cases have been consolidated. We affirm.

I

On November 1, 1984, Wallace, who was at that time incarcerated, made a request under the Freedom Of Information Act (FOIA) for disclosure of all records pertaining to her in possession of the United States Parole Commission. On March 25, 1985, the Commission sent Wallace all of the relevant documents she had requested except for her presentence investigation report. Wallace filed suit seeking a copy of this report and on September 6, 1985, Judge Henderson ordered the presentence report released.

Julian, who is currently incarcerated, requested a copy of his presentence investigation report on October 17, 1984. This request was denied, prompting Julian to appeal to the Department of Justice, Office of Information and Privacy, which refused his request. Julian filed suit on January 30, 1985. On August 5, 1985, Judge Bilby granted Julian's motion for summary judgment and held that there was no basis to withhold the presentence investigation report.

II

The probation service of a district court compiles presentence investigation reports after a criminal defendant has been found guilty. The report contains detailed factual information concerning the criminal record and background of the defendant. The report includes inter alia: 1) the defendant's official arrest and conviction record; 2) an official version of the offense in question obtained from the United States Attorney; 3) information concerning harm or loss suffered by the victim of the crime; 4) information on the defendant's contacts with the military, schools, banks, and credit bureaus; 5) summaries of interviews with social service agencies, employers, family and friends; and 6) clinical evaluations of the defendant's physical and mental health. The report concludes with the probation officer's sentencing recommendation. Fennell

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and Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports In Federal Courts, 93 Harv.L.Rev. 1615, 1623 (1980).

The presentence report serves three purposes. The district court considers the report while formulating a sentencing decision. Second, if the convicted defendant is incarcerated, the report accompanies him to the correctional institution, where the Bureau of Prisons utilizes the contents of the report to classify the prisoner for the facility and to determine an appropriate treatment program. There is no statutory directive that the Probation Service furnish a copy of the report to the Bureau of Prisons, but it does so. Finally, the Parole Commission considers the report when it makes its parole eligibility determination.

The convicted defendant has several opportunities to read his presentence investigation report. Under Federal Rule of Criminal Procedure 32(c)(3), the convicted defendant and his attorney may examine all or certain portions of the report a reasonable time before sentencing. Rule 32(c)(3) states in pertinent part,

(A) At a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains 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.

Judges must provide an oral or written summary of any exempted information which they rely on in sentencing decisions and provide the defendant or his counsel an opportunity to comment on the summary. Fed.R.Crim.P. 32(c)(3)(B). The convicted defendant may not keep a copy of the report. Fed.R.Crim.P. 32(c)(3)(E). However, he may take extensive or verbatim notes from the report if he so chooses. Fennell and Hall, supra at 1646-47.

The convicted defendant has a second opportunity to view the report after he has been incarcerated and before his parole hearing. The Parole Commission and Reorganization Act of 1976, 18 U.S.C. Sec. 4201, et seq. (PCRA), dictates the procedures for disclosing the report at this stage. The disclosure procedures applicable during the parole eligibility process mirror the procedures applicable during sentencing. 18 U.S.C. Sec. 4208(b) provides in part:

(b) At least thirty days prior to any parole determination proceeding, the prisoner shall be provided with (1) written notice of the time and place of the proceeding, and (2) reasonable access to a report or other document to be used by the Commission in making its determination.

The statute identifies certain types of information which shall not be revealed to the convicted defendant except in summary form. These exempted items are identical to those listed in Rule 32(c)(3). 1 A prisoner may obtain a copy of his presentence report during the parole hearing process, but only if the sentencing court which prepared the report consents. 28 C.F.R. Sec. 2.56(b) (1985).

The government contends that presentence investigation reports are exempt from disclosure under FOIA provisions 5 U.S.C. Sec. 552(b)(3) (hereinafter "Exemption 3") and 5 U.S.C. Sec. 552(b)(5) (hereinafter "Exemption 5"). Alternatively, the government argues that FOIA is displaced by the special statutory procedures for obtaining presentence investigation reports set forth

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in Fed.R.Crim.P. 32(c)(3) and 18 U.S.C. Sec. 4208. The district courts rejected these claims. Because this case involves questions of law, we review de novo. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III

Presentence investigation reports are "agency records" when they are in the possession of the Parole Commission. Fendler v. United States Parole Commission, 774 F.2d 975, 977 (9th Cir.1985); Berry v. Department of Justice, 733 F.2d 1343, 1349 (9th Cir.1984). The government has not argued to the contrary in this case. 2 Consequently, the Commission must disclose presentence reports to prisoners unless it can demonstrate that they fall within one of FOIA's nine enumerated exemptions. United States v. Weber Aircraft Corp., 465 U.S. 792, 793-94, 104 S.Ct. 1488, 1489, 79 L.Ed.2d 814 (1984). FOIA is to be liberally construed in favor of disclosure and its exemptions narrowly construed. FBI v. Abramson, 456 U.S. 615, 630-31, 102 S.Ct. 2054, 2063-64, 72 L.Ed.2d 376 (1982) (citing Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976)).

We are required to decide whether FOIA provides a per se exemption for withholding an entire presentence report when it is requested by the subject of the report. There is no doubt that portions of the report may be withheld. Both Rule 32(c)(3) and PCRA authorize the withholding of certain classes of information which appear in the presentence report. The probation officer's sentencing recommendation, diagnostic opinions which might disrupt the prisoner's rehabilitation if disclosed, and information obtained upon a promise of confidentiality may all be withheld pursuant to Rule 32(c)(3) and PCRA. FOIA does not override these provisions. In fact, it ensures their vitality. 3 However, FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. Sec. 552(b). Thus, the Parole Commission has a duty under FOIA to release any nonexempt, segregable portions of a presentence investigation report to the requesting party. The burden is on the Commission to justify nondisclosure. FBI v. Abramson, 456 U.S. 615, 626, 102 S.Ct. 2054, 2061, 72 L.Ed.2d 376 (1982); NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 2318, 57 L.Ed.2d 159 (1978); Lykins v. United States Department of Justice, 725 F.2d 1455, 1462-63 (D.C.Cir.1984).

We conclude that neither Exemption 3 nor Exemption 5 provides a blanket exemption for presentence investigation reports. We recognize that the process of segregating nonexempt information from exempt information, and furnishing the nonexempt data to prisoners may be time consuming and expensive, but we are bound by the express language of 5 U.S.C. Sec. 552(b). We expressly limit our holding to FOIA...

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