Pollack v. U.S. Bureau of Prisons, 88-2618

• Decision Date: 17 July 1989
• Docket Number: No. 88-2618,88-2618
• Citation: 879 F.2d 406
• Parties: Seymour POLLACK, Appellant, v. UNITED STATES BUREAU OF PRISONS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 406

879 F.2d 406

Seymour POLLACK, Appellant, v. UNITED STATES BUREAU OF PRISONS, Appellee.

No. 88-2618.

United States Court of Appeals,

Eighth Circuit.

Submitted June 8, 1989.

Decided July 17, 1989.

Seymour Pollack, pro se.

Robin J. Aiken, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before ARNOLD, BOWMAN, and MAGILL, Circuit Judges.

ARNOLD, Circuit Judge.

In this suit under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, and the Privacy Act, id. Sec. 552a, Seymour Pollack seeks to enforce the District Court's order requiring the United States Bureau of Prisons to release various records pertaining to him. This appeal stems from the Court's refusal to order additional disclosure after the Bureau asserted in pleadings that all of Pollack's "central file," maintained at his place of imprisonment, had been made available to him. Because the Bureau did not submit the affidavit of a responsible agency official describing its search or denying the existence of other responsive records or files, we remand to the District Court for further proceedings in accordance with this opinion.

I.

In his pro se complaint filed on December 24, 1986, Pollack alleged that the Bureau of Prisons office in Washington, D.C., failed to respond to two letters he had written requesting records. Attached to the complaint was a copy of a letter to the Bureau listing the information Pollack desired: (1) FBI identification record ("rap sheet"); (2) BP-15 classification report and all included materials; (3) United States Parole Commission "minifile," including the Presentence Investigation report (PSI); (4) all medical records; (5) all communications concerning Pollack; (6) A.O. 235 Sentencing Court Memorandum; (7) D.J. 792 United States Attorney's Report; (8) any other related letters, memoranda, records, or notes, or any communication whatsoever pertaining to Pollack. In addition, Pollack requested a Vaughn index of any documents claimed to be exempt from disclosure. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

In response to a show-cause order issued by a magistrate, the Bureau submitted Pollack's FBI "rap sheet," one-half page of custody and classification data, a Parole Commission notice-of-hearing form, and documents described as the "objective portion" of Pollack's medical records. Michael Hood, an attorney advisor at the United States Medical Center for Federal Prisoners (MCFP), submitted an affidavit stating that the PSI would not be provided because it was not subject to disclosure under FOIA, and that the "subjective" portion of Pollack's medical records would be withheld due to the potential "chilling effect" on medical relationships flowing from disclosure. The PSI and subjective medical records were submitted for in camera review. Hood stated that all of Pollack's central file except his PSI had been revealed, and that Pollack's requests for classification material included with the BP-15 form and for all other documents pertaining to him were too broad to be complied with.

Although the magistrate recommended dismissal of the case, the District Court on December 8, 1987, rejected the Bureau's claimed Privacy Act exemption and ordered the agency to provide Pollack with a copy of his PSI and a Vaughn index of the medical records and classification materials that it sought to withhold. Finally, the Court stated that Pollack's request for "other" documents pertaining to him was too broad, but indicated that the ruling was without prejudice to a particularized request at a later date. Pollack responded by filing a request for thirty-nine specific documents and groups of records. The District Court did not acknowledge this request, and the Bureau did not address it until the final stages of the case.

The Bureau initially appealed the order with respect to the PSI. While the Bureau's appeal was pending, this Court refused to order the Bureau to turn over all documents other than the PSI; rather, Pollack was directed to seek such relief in the District Court. Pollack v. United States Bureau of Prisons, No. 88-1251 (8th Cir. May 3, 1988) (order). The PSI was released to Pollack on June 1, 1988, after the Supreme Court held that agencies with possession of PSI reports were subject to the disclosure rules of FOIA. See United States Dep't of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). After Pollack received his PSI, the District Court warned the Bureau to turn over the remaining documents or face citation for contempt.

On July 11, 1988, the Bureau filed a report to the Court stating "[c]ounsel for respondent has been advised that all remaining documents have been disclosed to petitioner, pursuant to the court's order, with the exception of [the subjective portion of the medical records]." The report indicated that the appeal to this Court was being dismissed, and that the medical records that had been submitted for in camera inspection were being retrieved and photocopied for disclosure to Pollack. Pollack later received copies of these records, but he complained that they were incomplete and that the Bureau continued to withhold classification materials.

The District Court then issued an order indicating that the relief Pollack had requested had apparently been afforded, and directing him to show cause why the case should not be dismissed. In his response, Pollack again stated that the Bureau had failed to provide him with the material accompanying the BP-15 classification data sheet, and some of his medical records. Pollack also pointed out that the Bureau had not objected to his particularized list of requested information.

In a pleading filed August 10, the Bureau alleged that Pollack had been provided access to the entire contents of his central file. With regard to Pollack's particularized request, the Bureau noted that the Court had not directed disclosure of such documents, if they existed. Additionally, the Bureau maintained, any item listed in the particularized request and contained in the central file would be available to Pollack. The pleading stated that the United States Attorney's office had been advised that, according to a prison employee, all documents in the central file had been given to Pollack. The pleading was not accompanied by an affidavit.

Pollack replied that on August 15, 1988, he had inquired about several of the documents on the particularized list, such as the designation teletype, transfer orders, in-transit information, movement summary, inmate file checkout card, designation determination, and medical limitations. He alleged that he was told that these documents were in the central records office, in a separate file from the central file kept at the institution. Thus, claimed Pollack, the court had...