The opinion of the court was delivered by: WADDY
Plaintiff National Prison Project of the American Civil Liberties Union Foundation, Inc. is a nonprofit organization which advises and represents inmates of federal penal institutions. Plaintiff and its counsel are also engaged in a general study of the federal parole system and the manner in which parole applications are processed by the United States Board of Parole. This action is brought against the Board and its Chairman pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff claims that the Board is in violation of section 552(a) (2) of the Act by failing to make available for public inspection and copying the records containing the final opinions of the agency denying inmates' applications for parole.
Defendants initially responded to the complaint with a motion to dismiss relying primarily on the argument that the Board of Parole is not an agency subject to the provisions of the Administrative Procedure Act, of which the FOIA is a part. Upon the representation of counsel that this same issue was pending before this Circuit's Court of Appeals in Pickus v. United States Board of Parole, 507 F.2d 1107 (D.C.D.C 1974), the Court stayed all proceedings in the instant action until a decision had been reached in Pickus. On October 11, 1974, the Court of Appeals entered its decision, holding, inter alia, that the Board is indeed an agency within the purview of the APA and that its actions are subject to judicial review. Defendant's petition for rehearing was denied on December 10, 1974.
In October, 1972, the Board of Parole instituted a pilot project pursuant to which the Board informed prisoners of the reasons why their applications for parole were denied. See 28 C.F.R. § 2.13(d).
The program was first initiated on October 1, 1973, in the Board's northeast region. The same policy was expanded to nationwide coverage beginning October, 1974.
By letter dated October 1, 1973, counsel for plaintiff requested a copy of the reasons for denial of parole given in the first case decided under the new policy. On November 1, 1973, defendant Sigler furnished the requested documents to counsel for his personal use,
but added that the Board did not consider these documents to be subject to the public disclosure requirements of the Freedom of Information Act. Subsequently, counsel for plaintiff visited the principal office of the Parole Board in Washington, D.C., and ascertained that materials allegedly required to be available to the public pursuant to section 552(a) (2) of the Act were not kept on file for inspection.
Section 552(a) (2) of the Freedom of Information Act provides in pertinent part that:
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying --
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases . . .
The 1974 amendments to the Act require, in addition, that each agency maintain a public index providing identifying information as to matters issued, adopted or promulgated after July 4, 1967, and which are required to be made public under the above-quoted provision of the statute. Defendant argues that the Parole Board's statement of reasons for denying parole applications are exempt from disclosure because: (1) the process by which the Board determines whether or not parole should be granted is not an adjudication; (2) the statements of reasons are neither opinions nor orders of the agency; and (3) exemption (b) (6) ...