Berry v. Department of Justice

• Citation: 733 F.2d 1343
• Decision Date: 30 May 1984
• Docket Number: No. 83-1854,83-1854
• Parties: Richard S. BERRY, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1343

733 F.2d 1343

Richard S. BERRY, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.

No. 83-1854.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 13, 1984.

Decided May 30, 1984.

Michael E. St. George, Tempe, Ariz., for plaintiff-appellant.

Susan A. Ehrlich, Phoenix, Ariz., for defendants-appellees.

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

Before GOODWIN, PREGERSON and NELSON, Circuit Judges.

NELSON, Circuit Judge:

While awaiting a parole hearing, appellant Richard S. Berry sought copies of his presentence investigation report and Report on Sentenced Offender from the United States Parole Commission. When his request was denied, Berry filed this action pursuant to the Freedom of Information Act (FOIA). The district court dismissed Berry's suit on the ground that the reports are court documents and thus exempt from disclosure under the FOIA. Berry appealed. Because presentence investigation reports and Reports on Sentenced Offenders are agency records when they are in the possession of either the Federal Bureau of Prisons or the Parole Commission, we reverse and remand for additional proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Richard S. Berry was sentenced to three years imprisonment for conspiracy to transport money obtained by interstate fraud. In compliance with Federal Rule of Criminal Procedure 32(c), ¹ Berry was permitted to review his presentence investigation The government moved to dismiss the action on the ground that the undisclosed documents are court records and are thus exempt from disclosure under the FOIA. This motion was granted on March 14, 1983. Plaintiff filed a timely appeal.

                report prior to sentencing.  He was not permitted to retain a copy of the report.  Similarly, in compliance with the Parole Commission and Reorganization Act, 18 U.S.C. Sec. 4201 et seq.  (1976), 2 Berry was permitted to review both his Report on Sentenced Offender and his presentence report briefly before his parole hearing. 3   Berry requested copies of the presentence report, the Report on Sentenced Offender, and other documents from the Federal Bureau of Prisons, the Parole Commission, and, ultimately, from the Department of Justice.  Although a number of documents were given to Berry, he was denied copies of his presentence report and Report on Sentenced Offender.  Berry filed this lawsuit pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (1976), to obtain copies of the contested documents
                

DISCUSSION

I. Background

The FOIA was enacted in 1966 to "permit access to official information long shielded unnecessarily from public view." EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). It requires government agencies to make "agency records" available to any person for a nominal charge. 5 U.S.C. Secs. 552(a)(3), (a)(4)(A) & (a)(4)(B) (1976). Although the term "agency records" is not defined in the FOIA, the definition of "agency" expressly exempts "courts," among other institutions, from its coverage. 5 U.S.C. Sec. 551(1)(B) (1976). This case requires us to determine whether presentence investigation reports and Reports on Sentenced Offenders in the possession of specified government agencies are agency records or court documents for the purposes of the FOIA.

Presentence investigation reports are prepared by court probation officers. They contain a broad range of information about a defendant's background, recommend a sentence to the court, suggest a treatment plan, and contain an independent investigation of the offense charged. Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1617 (1980) (hereinafter "Fennell & Hall"). The report is used by the court in the sentencing process, see Division of Probation, Administrative Office of the United States Courts, The Presentence Investigation Report 1 (1978), and by the Bureau of Prisons to classify The Report on Sentenced Offender is prepared by the sentencing judge. It presents a statement of sentencing objectives and a recommendation of the type of institution in which the defendant should be imprisoned. It also permits the judge to comment on treatment needs and the propriety of parole. Like the presentence report, the Report on Sentenced Offender is forwarded to the Bureau of Prisons and the Parole Commission and is relied upon in making correctional decisions affecting the prisoner. The Report is intended to promote communication between the sentencing judge and correctional authorities to encourage "consistent treatment of the defendant at the sentencing and parole release stages." Fennell & Hall, supra, 93 Harv.L.Rev. at 1683.

and plan the release of prisoners, United States v. Cesaitis, 506 F.Supp. 518, 520 (E.D.Mich.1981). In addition, the Parole Commission is statutorily required to rely upon the document in making parole determinations. 18 U.S.C. Sec. 4207 (1976).

II. The Split Between the Circuits

A. The D.C. Circuit Standard

The issue we confront today was first addressed by the D.C. Circuit in Carson v. Department of Justice, 631 F.2d 1008 (D.C.Cir.1980) (hereinafter "Carson"). There, presentence reports, "central to the Parole Commission's primary function," were deemed to be agency records. Id. at 1015. Although, for reasons outlined below, we are not free to adopt the Carson rationale in its entirety, Judge Wald's analysis offers much guidance in determining whether documents are court or agency records.

Carson traces the history of 'agency records' cases under the FOIA. Cook v. Willingham, 400 F.2d 885 (10th Cir.1968) (per curiam) (hereinafter "Cook"), was the first reported decision to address the availability of presentence reports under the FOIA. There, a two-judge motions panel issued a three-paragraph per curiam decision summarily affirming denial of access to a presentence report under the FOIA.

Cook was cited with approval in Goland v. Central Intelligence Agency, 607 F.2d 339, 346 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980) (hereinafter "Goland"). ⁴ There, the D.C. Circuit enunciated a "control" test to determine if a document should be deemed an agency record. The court reasoned that once a document "has passed from the control of Congress and become property subject to the free disposition of the agency" it must be treated as an agency record under the FOIA. Id. at 347. In determining who controlled the documents in Goland, the court relied heavily on the confidentiality of the papers at issue. Since one of the documents--a transcript of a secret Congressional hearing on military intelligence and the CIA--had been temporarily released to the agency under a command of secrecy, the court concluded that the agency did not have sufficient control to transform it into an agency record. Id. at 347-48.

The Goland standard was applied and disclosure ordered in Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980). There, the court held that senators' responses to a Department of Justice questionnaire were agency records. Absent "evidence of control by some other entity," the documents were deemed to be controlled by the Department of Justice. Id. at 786. Thus, they were discoverable under the FOIA.

After reviewing these cases, the Carson court applied their rationale to presentence reports. It noted two major changes in the treatment of presentence reports since the Cook decision. First, Federal Rule of Criminal Procedure 32(c), adopted in 1975,

                requires sentencing courts, upon request, to show defendants substantial portions of presentence reports.  Second, the Parole Commission and Reorganization Act, 18 U.S.C. Sec. 4201 et seq.  (1976), expressly requires parole authorities to consider available presentence reports in making parole determinations.  The court read this requirement to vest "the Parole Commission with a degree of control over available reports commensurate with the fulfillment of its statutory mission as an agency."    Carson, 631 F.2d at 1013.    Carson concluded that presentence investigation reports were agency records and remanded the case for additional proceedings.  The D.C. Circuit has recently reaffirmed its commitment to the Carson approach.    See Lykins v. United States Department of Justice, 725 F.2d 1455 (D.C.Cir.1984). 5
                

B. The First Circuit Approach

The First Circuit differs with the D.C. Circuit over whether presentence reports are agency records under the FOIA. In Crooker v. United States Parole Commission, 730 F.2d 1 (1st Cir.1984) (hereinafter "Crooker"), the First Circuit held that presentence reports do not constitute agency records.

Crooker acknowledged that the Goland control test is properly applied to determine whether documents are agency records. Crooker, at 730 F.2d at 3-6. When it applied this test, however, Crooker concluded that the Parole Commission does not exercise sufficient control over presentence reports to convert them into agency records.

Crooker analyzed the relative control exercised over presentence reports by the courts and the Parole Commission. It found court control to be fairly pervasive. Courts can, in some circumstances, choose not to have presentence reports written, id. at 6, they need not reveal to defendants those parts of the report that are not relied upon in sentencing, id. at 6-7, and, under Rule 32, they have discretion to leave a copy of the report in the defendant's possession. Id. at 7.

Conversely, Crooker found the Parole Commission to exercise little control over presentence reports. The Parole Commission cannot require that a presentence report be written, although it must rely on reports that are already available, id. at 7, the Commission may rely on information more recent than presentence reports in making parole determinations, id. at 7, it must provide summaries...