Crooker v. U.S. Parole Com'n

• Decision Date: 21 March 1984
• Docket Number: No. 83-1687,83-1687
• Citation: 730 F.2d 1
• Parties: Michael Alan CROOKER, Plaintiff, Appellant, v. UNITED STATES PAROLE COMMISSION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

730 F.2d 1

Michael Alan CROOKER, Plaintiff, Appellant, v. UNITED STATES PAROLE COMMISSION, Defendant, Appellee.

No. 83-1687.

United States Court of Appeals, First Circuit.

Argued Jan. 3, 1984.

Decided March 21, 1984.

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

C. Brian McDonald, Asst. U.S. Atty., Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, ALDRICH and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

This case requires us to determine whether presentence reports are subject to the mandatory disclosure requirements of the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, or more specifically, whether presentence reports are "agency records" within the meaning of the FOIA.

Plaintiff-appellant Michael Alan Crooker is on parole from federal prison. In October 1977, the probation office of the United States District Court for the District of Massachusetts prepared Crooker's presentence report for use in Crooker's sentencing before that court. Pursuant to Rule 32(c)(3) of the Federal Rules of Criminal Procedure, the court permitted Crooker to read his entire presentence report prior to sentencing. Crooker was not permitted to keep a copy of the report. After sentencing, the report was transferred to the United States Parole Commission, pursuant to the Parole Commission and Reorganization Act of 1976 (Parole Act), 18 U.S.C. Sec. 4205(e), which requires the courts' probation officers to furnish "information available to such officer[s]" to the Commission upon request. Prior to his parole determination proceeding, in March 1980 Crooker again read his presentence report, which the Parole Commission had provided to Crooker under the mandate of 18 U.S.C. Sec. 4208(b)(2), which requires the Commission to grant the prisoner "reasonable access" to a report to be used by the Commission in making a parole determination. The Parole Commission, like the sentencing court, did not permit Crooker to keep a copy of the report.

In January 1983, Crooker filed a FOIA request with the Parole Commission, seeking release of his presentence report and other documents. After Crooker commenced this FOIA action in federal district court, the Parole Commission released many documents, but withheld copies of his presentence report and medical (drug detoxification) records the Parole Commission had obtained from the Elmcrest Psychiatric Institute. On cross-motions for summary judgment, the district court granted the Parole Commission's motion and denied Crooker's. In a brief memorandum and order, the district court held that the Parole Commission had properly withheld the presentence report on the basis of an order of the United States District Court for the District of Massachusetts ¹ and on the basis of "the Parole Commission's power to make independent judgments concerning the identification of exemptable material." The district court also held that a presentence report is a court document, not an agency document, and is therefore not subject to the FOIA.

The court further ruled that the Parole Commission had properly withheld the medical records, because, according to the court, the Parole Act, 18 U.S.C. Sec. 4208(c)(2), provides a specific statutory exemption from FOIA disclosure, 5 U.S.C. Sec. 552(b)(3), for "material obtained upon the promise of confidentiality". The court ordered the Parole Commission to furnish Crooker with a summary of the contents of the medical records pursuant to the Parole Act, 18 U.S.C. Sec. 4208(c). The Parole Commission complied with this order, and plaintiff appealed from the remainder of the district court's judgment.

I. The Presentence Report

An agency need disclose only "agency records" under the FOIA, 5 U.S.C. Sec. 552(a)(4)(B). Unfortunately, the FOIA contains no definition of "agency records", the crucial term in this case. See Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 983, 63 L.Ed.2d 293 (1980). Nor does the FOIA's legislative history shed any helpful light on this issue. See McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1106 & n. 48 (D.C.Cir.), vacated in part on other grounds, 711 F.2d 1076 (D.C.Cir.1983) (per curiam). The difficulty in deciding whether presentence reports are "agency records" arises from the hybrid function of the presentence report. The probation service of the United States courts creates the presentence report, Fed.R.Crim.P. 32(c)(1), and the courts are not agencies within the meaning of the FOIA. 5 U.S.C. Sec. 551(1)(B). However, after the court has used the presentence report in sentencing a defendant, the probation officer must, upon request from the Parole Commission, transmit a copy of the presentence report to the Parole Commission for use in parole determinations. After transmittal, the report is jointly possessed by a FOIA-controlled agency (the Parole Commission), see 18 U.S.C. Sec. 4218(a), and a FOIA-exempt entity (the courts).

In attempting to divine whether Congress intended presentence reports to be agency records under the FOIA, other courts have examined the relative degree of control exercised by the FOIA agency and the FOIA-exempt body over the contested documents. Of course "control" is a protean term, and courts have not adhered to a single variant of the control test for determining whether a document is an agency record for FOIA purposes. In Carson v. U.S. Department of Justice, 631 F.2d 1008 (D.C.Cir.1980), in which the court held that a presentence report is an agency record within the FOIA, the court applied the control test set out in an earlier opinion from that circuit, Goland v. Central Intelligence Agency, 607 F.2d 339, 346-47 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). In Goland, the court decided that the FOIA's applicability to a document generated by an expressly exempted non-agency (in that case, Congress) depended on "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". Carson, 631 F.2d at 1010 (quoting Goland, 607 F.2d at 347); accord Ryan v. Department of Justice, 617 F.2d 781, 785 (D.C.Cir.1980); Warth v. Department of Justice, 595 F.2d 521, 523 n. 7 (9th Cir.1979).

The Carson court premised its decision on analysis of Rule 32(c) of the Federal Rules of Criminal Procedure, as amended in 1975, and the Parole Act of 1976. Prior to the 1975 amendment to Rule 32(c), the sentencing court enjoyed unfettered discretion to withhold any or all of the presentence report from the defendant. The Carson court noted that the amendments to Rule 32(c) substantially diluted the sentencing court's control over the presentence report, because Rule 32(c) now requires the court to disclose the contents of a presentence report to a defendant prior to sentencing. The court may withhold material that contains diagnostic opinions, confidential sources, or information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other person, but the sentencing court must summarize the factual information contained in withheld portions to be relied on in determining sentence. Fed.R.Crim.P. 32(c)(3)(A) & (B); see Carson, 631 F.2d at 1011-12.

The Carson court also held that the Parole Act indicated that the Parole Commission controlled presentence reports in its possession. The Parole Act expressly requires the Parole Commission to consider presentence reports, "if available and relevant", in making its parole determinations. 18 U.S.C. Sec. 4207(3). The Parole Act also requires the probation officers of the courts to furnish "information available to such officer[s]" to the Parole Commission upon request. 18 U.S.C. Sec. 4205(e). Finally, the Act requires the Parole Commission to grant to requesting prisoners "reasonable access" to their presentence reports prior to parole determination hearings, subject to exemptions that are practically identical in substance to the exemptions provided by Rule 32(c)(3). 18 U.S.C. Sec. 4208(b) & (c); see Carson, 631 F.2d at 1012-15. The Carson court concluded that because "[t]he presentence report is, after all, central to the Parole Commission's primary function", it should constitute an agency record for FOIA purposes. 631 F.2d at 1015.

Although the Supreme Court has not yet ruled directly on the control test employed in Carson, the Court gave implicit approval to that standard in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 157, 100 S.Ct. 960, 972, 63 L.Ed.2d 267 (1980). In Kissinger, the Court held that transcripts of telephone conversations recorded by Henry Kissinger while he was National Security Adviser to the President (and thus exempt from the FOIA, 445 U.S. at 156, 100 S.Ct. at 971) did not become agency records merely by their relocation to the State Department during Kissinger's tenure as Secretary of State. In rejecting the argument that mere possession could be determinative of agency record status, the Court noted that the State Department (a FOIA agency) did not control, generate, or use the documents. ² Id. 445 U.S. at 157, 100 S.Ct. at 972.

More recently, the D.C. Circuit has attempted to refine the Goland/Carson control test in light of the Supreme Court's decision in Kissinger. Whereas cases decided under the Goland standard had focused on the control retained by the creator of the document, Kissinger focused on the degree of control exercised by the agency that has received the document. In Paisley v. Central Intelligence Agency, 712 F.2d 686, 693 (D.C.Cir.1983), the court reconciled the cases as "standing for the general proposition that the agency to whom the FOIA request is directed must have exclusive control of the disputed documents" (emphasis added). ...