Durns v. Bureau of Prisons

• Decision Date: 23 December 1986
• Docket Number: 85-5778 and 85-5999,Nos. 85-5704,85-5714,s. 85-5704
• Citation: 256 U.S. App. D.C. 156,804 F.2d 701
• Parties: Don DURNS v. BUREAU OF PRISONS, et al., Appellants. Eugene John IZZI v. UNITED STATES PAROLE COMMISSION, Appellant. Robert A. MINEO v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellants. Eddie David COX v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 701

804 F.2d 701

256 U.S.App.D.C. 156

Don DURNS v. BUREAU OF PRISONS, et al., Appellants.

Eugene John IZZI v. UNITED STATES PAROLE COMMISSION, Appellant.

Robert A. MINEO v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellants.

Eddie David COX v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellants.

Nos. 85-5704, 85-5714, 85-5778 and 85-5999.

United States Court of Appeals District of Columbia Circuit.

Argued April 22, 1986.

Decided Sept. 12, 1986.

Dissenting Opinion Oct. 10, 1986.

As Amended Oct. 10, Oct. 15 and Nov. 3, 1986.

Rehearing En Banc Denied Dec. 23, 1986.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 84-01327, 83-03030, 84-03899 and 85-00892).

Sandra Wien Simon, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellants in Nos. 85-5704, 85-5714, 85-5778 and 85-5999. Royce C. Lamberth, R. Craig Lawrence and Patricia D. Carter, Asst. U.S. Attys., Washington, D.C., entered appearances for appellants in No. 85-5704. Robert E.L. Eaton, Jr., Asst. U.S. Atty., Washington, D.C., entered an appearance for appellants in No. 85-5999.

Eric Glitzenstein, with whom Katherine A. Meyer and Alan B. Morrison, Washington, D.C., were on the brief, for appellees in Nos. 85-5714 and 85-5999.

Don Durns, pro se.

Robert A. Mineo, pro se.

Before SCALIA ^* and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Senior Circuit Judge J. SKELLY WRIGHT.

SILBERMAN, Circuit Judge:

These four consolidated cases raise the question of whether presentence reports prepared in connection with the sentencing of federal offenders are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982) (FOIA). The appellants, the Department of Justice, the Bureau of Prisons, and the United States Parole Commission, challenge district court orders compelling disclosure to federal prisoners of reports prepared for their sentencing. In each case below, the district court rejected the Government's various contentions as to why presentence reports are exempt from disclosure under FOIA. The Government maintains, inter alia, ¹ that presentence reports are intragovernmental memoranda "which would not be available by law to a party ... in litigation with the agency" as stated in FOIA Exemption 5, 5 U.S.C. Sec. 552(b)(5) (1982). Because we agree that presentence reports fall within the purview of Exemption 5, we reverse the judgments under appeal.

I.

Presentence investigation reports are prepared by the probation service of each federal district court to aid the court in sentencing defendants. The reports contain information on the circumstances surrounding the defendant's crime and on the defendant's background; they include the probation officer's sentencing and parole recommendations. See generally Fennell and Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 HARV.L.REV. 1613, 1621-1630 (1980). The sentencing courts' use of the reports is governed by Fed.R.Crim.P. 32(c). The reports are also used by the United States Parole Commission in connection with prisoners' parole determinations. See 18 U.S.C. Sec. 4207(3) (1982). In addition, the Bureau of Prisons has used presentence reports with respect to decisions relating to the terms and conditions of prisoners' incarceration.

In its original form, Rule 32(c) reflected a strong policy against disclosure of presentence reports to anyone, including the defendant. It was thought that strict confidentiality was necessary to assure the continued availability of the sources consulted by the probation service in preparing the reports. See, e.g., Williams v. New York, 337 U.S. 241, 249-50, 69 S.Ct. 1079, 1084-85, 93 L.Ed. 1337 (1949). More recently, however, Rule 32(c) has been revised to balance this interest in confidentiality with defendants' interest in ensuring the accuracy of reports used in their sentencing. A defendant and his attorney are now entitled, subject to certain limited exceptions, to read and comment on the presentence report before a court imposes sentence. See Fed.R.Crim.P. 32(c)(3)(A). Similarly, under the Parole Commission and Reorganization Act, see 18 U.S.C. Sec. 4208(b)(2) (1982), the Parole Commission is required to afford prisoners "reasonable access" to presentence reports used in determining parole. Under current regulations, however, the Commission does not permit prisoners to keep a copy of their report unless the sentencing court agrees. See 28 C.F.R. Sec. 2.56(b) (1985).

Each of the four appellees, Don Durns, Eugene John Izzi, Robert A. Mineo, and Eddie David Cox, is an inmate of a federal prison. Each requested a copy of his presentence report ² from officials of the Parole Commission or the Bureau of Prisons; each request was denied because the sentencing courts objected to release of the reports. ³ The appellees then brought suit under FOIA. They relied on Carson v. Dep't of Justice, 631 F.2d 1008 (D.C.Cir.1980), and Lykins v. Dep't of Justice, 725 F.2d 1455 (D.C.Cir.1984), in which this Circuit had held that presentence reports are "agency records" subject to FOIA when in the possession of the Parole Commission. ⁴ The Government maintained, however, that presentence reports are shielded from disclosure by particular FOIA exemptions. Each court below rejected the government's arguments and ordered disclosure. See Durns v. Bureau of Prisons, 605 F.Supp. 1213 (D.D.C.1985); Izzi v. United States Parole Comm'n, No. 84-3030 (D.D.C. April 22, 1985); Mineo v. United States Dep't of Justice, No. 84-3899 (D.D.C. April 29, 1985); Cox v. United States Dep't of Justice, No. 85-0892 (D.D.C. July 31, 1985). The Government now appeals.

II.

FOIA is designed to "guarantee[ ] the right of persons to know about the business of their government." H.R.Rep. No. 876, 93d Cong., 2d Sess. 4 (1974), U.S.Code Cong. & Admin.News, 1974, pp. 6267, 6269. In general, FOIA creates a broad public right of access to federal agency records. But Congress recognized that "public disclosure is not always in the public interest," Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982), and so created nine specific exemptions from disclosure. See 5 U.S.C. Sec. 552(b) (1982). Exemption 5, with which we deal here, embraces "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id. Sec. 552(b)(5). This exemption ensures that members of the public cannot obtain through FOIA what they could not ordinarily obtain through discovery undertaken in a lawsuit against the agency. See EPA v. Mink, 410 U.S. 73, 85-86, 93 S.Ct. 827, 835-36, 35 L.Ed.2d 119 (1973).

We are guided, in considering the applicability of Exemption 5 to presentence reports, by several recent Supreme Court decisions that serve to clarify the scope of the exemption. In FTC v. Grolier Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983), the Court upheld an agency's rejection of a FOIA request seeking memoranda prepared by agency counsel in previous litigation with the requesting party. The Court stated that "[t]he test under Exemption 5 is the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." Id. at 26, 103 S.Ct. at 2213 (citation omitted). Since under prevailing doctrine attorney work-product in preparation for litigation is privileged from civil discovery, even in subsequent litigation, the memoranda in question would not be generally available to private parties in litigation with the agency. See id. at 26-27 103 S.Ct. at 2213-14. The Court concluded that Exemption 5 applies even where the underlying privilege is qualified and may be defeated by a party's showing of particularized need. Id. at 27, 103 S.Ct. at 2214. That a party would be able to obtain discovery in particular circumstances, the Court emphasized, does not show that the materials in question were "routinely" available. Thus, even if certain privileged materials had already been disclosed--if the privilege had been defeated or waived--they were still shielded by Exemption 5 from FOIA disclosure. See id. at 28, 103 S.Ct. at 2214; see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 n. 16, 95 S.Ct. 1504, 1515 n. 16, 44 L.Ed.2d 29 (1975).

In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984), the Supreme Court held that Exemption 5 embraced confidential statements made to air crash safety investigators. The Court noted that the lower courts had held that such communications were privileged from civil discovery. See, e.g., Machin v. Zukert, 316 F.2d 336 (D.C.Cir.), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). While expressing some doubt that Exemption 5 would encompass "novel" privileges, the Court concluded that it certainly covered "well-settled" privileges like the one at issue in the case. See 465 U.S. at 801, 104 S.Ct. at 1494. According to the Court, a privilege need not be specifically mentioned in FOIA's legislative history to fall within Exemption 5; rather, "the history of Exemption 5 can be understood by means of 'rough analogies' " to privileges recognized by Congress. Id. at 802, 104 S.Ct. at 1494 (citation omitted).

In light of these precedents, we conclude that presentence reports are "inter-agency or intra-agency memorandums ... which would not be available by law to a party ... in litigation with the agency." ⁵ Just as a judicially-fashioned privilege shielded the witness statements made to air crash safety investigators involved in Weber Aircraft, relevant case law establishes that presentence reports are not routinely available in discovery. An...