Commission consider available presentence reports in making parole determinations and provide to a requesting prisoner in advance of any parole determination "reasonable access to a report or other document to be used by the Commission in making its determination." Id., §§ 4207, 4208(b); see Carson, 631 F.2d at 1012-13. Because the courts no longer have any discretion to prevent transmittal of presentence reports to parole authorities or to prevent access by inmates to presentence reports prior to parole determinations, the Carson court rejected the notion that rule 32(c) limits the discoverability under FOIA of a presentence report held by the Parole Commission. See Carson, 631 F.2d at 1012-13; see also Lykins, 725 F.2d at 1459 & n.4.
The court's reasoning in Carson and Lykins is just as applicable to defendant's argument that rule 32(c) should provide a per se exemption for presentence reports under section 552(b)(3). Carson and Lykins held that sections 4207 and 4208(b) of the PCRA curtailed judicial control over presentence reports so as to render them agency records of the Parole Commission for purposes of FOIA. In other words, judicial control over presentence reports under rule 32(c) does not affect the Parole Commission's responsibility to provide access to presentence reports under the PCRA. Therefore, rule 32(c) cannot be argued to provide a bar against the disclosure of presentence reports held by the Parole Commission so as to leave the Commission with no discretion on their release, as required by exemption 3. Prior to the Parole Commission and Reorganization Act, defendant's contention that the Parole Commission lacked discretion to release presentence reports may have had some merit. However, as both Carson and Lykins make clear, the Act eliminated the control of the sentencing court over presentence reports vis a vis the Parole Commission, and vests that agency with authority over such reports sufficient to render them agency records for purposes of FOIA. Therefore, defendant's argument that rule 32(c) leaves the Commission "no discretion" over presentence reports such that the rule meets the requirements of an exempting statute under FOIA's exemption 3 is without merit.
Section 4208(b) of the PCRA and the Commission's regulations regarding release of presentence reports enacted pursuant to that statute also do not support defendant's position that the Commission lacks any discretion to release copies of presentence reports to inmates who request them. On the contrary, there appears to be no requirement in either section 4208(b) or regulations enacted pursuant to that statute that the inmate return copies of any documents, including the presentence report, to the Commission after being afforded "reasonable access" to them. See 18 U.S.C. § 4208(b); 28 C.F.R. §§ 2.55(a)(3), 2.56(a) (1984). Rather than there being no discretion to provide a copy of the presentence report as required of exempting statutes under FOIA's exemption 3, the Commission appears to have complete discretion.
The court's disposition of the issue of the applicability of exemption 3 to the presentence report also governs the outcome on the diagnostic study withheld in its entirety because defendant argues that the same grounds justify exemption for both documents. See Defendant's Memorandum at 11-12. Under Rule 32(c)(3)(F) of the Federal Rules of Criminal Procedure, a report of a study made pursuant to 18 U.S.C. § 4205(c) shall be considered a presentence report. According to defendant, the diagnostic study in question was prepared pursuant to that statute. Therefore, defendant argues that just as the presentence report must be withheld under exemption 3, the diagnostic study made pursuant to section 4205(c) must also be withheld. Because the court has held that exemption 3 does not provide a blanket exemption for presentence reports, the court is compelled to reject defendant's argument.
Finally, in a purported "reply" to Plaintiff's Supplemental Memorandum in Support of Motion for Summary Judgment, defendant has asserted for the first time two new arguments for a blanket exemption for presentence reports. Although defendant correctly notes that an agency is not barred from asserting a particular exemption or theory if it was not cited in responding to the request at the administrative level,
defendant has an obligation to clearly set forth the exemptions upon which it plans to rely at the outset of litigation. Instead, defendant has attempted to circumvent both the adversary process and the rules of this court by raising new exemptions nearly five months after defendant's first dispositive motion was filed, and well after the expiration of the time within which defendant was to reply to plaintiff's supplemental memorandum under the local rules of this court. Although defendant has not sought leave to file its reply out of time, and this court has no desire to prolong this litigation indefinitely by encouraging defendant's tactical decision to raise new exemptions in such a piecemeal fashion, the court will address defendant's new arguments.
First, defendant claims that exemption 5 provides a per se exemption for presentence reports. Reply to Plaintiff's Supplemental Memorandum at 3-6. Under exemption 5, the FOIA does not apply to
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.
5 U.S.C. § 552(b)(5). This exemption generally excludes from FOIA's coverage only those documents "normally privileged in the civil discovery context." National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1515-16, 44 L. Ed. 2d 29 (1975). Defendant's assertion that presentence reports "literally fall within" exemption 5 is based on several assumptions. First, defendant argues that a presentence report in the possession of the Parole Commission would be privileged from discovery by third parties in the context of civil litigation. Defendant next asserts that even as to the individual who is the subject of the report, the Parole Commission's copy of the presentence report is protected by a "qualified privilege" against disclosure, and therefore that an inmate involved in litigation with the Parole Commission could not obtain through discovery a copy of his own presentence report. Thus, defendant concludes, presentence reports fall under exemption 5.
Although defendant is somewhat ambiguous as to the source of the privileges which it claims would protect presentence reports from discovery in litigation with the Parole Commission, it appears that the alleged per se exemption springs from the same source as the exemption asserted under section (b)(3), that is, the control of the sentencing court over presentence reports and the "statutorily created privilege" to obtain access to the presentence report from the Parole Commission under the PCRA. Those arguments are no more persuasive in the context of exemption 5 than they were under exemption 3. As already pointed out, the sentencing court no longer has any control over presentence reports vis a vis the Parole Commission, which renders suspect defendant's assumption that rule 32 would have any effect on discovery of a presentence report by the individual who is the subject of that report in civil litigation with the Parole Commission. Further, given an inmate's entitlement to access to his presentence report prior to his parole hearing under the PCRA, and the Commission's apparent discretion to allow the inmate to retain a copy of that report, defendant's assumption that the Commission could assert some nebulous "qualified privilege" to prevent discovery of a presentence report during civil litigation by an inmate who is the subject of that report is similarly without merit.
Finally, defendant argues that in the case of presentence reports, the FOIA is "displaced" by a "particularized disclosure scheme," that is, the PCRA and rule 32(c). This argument must fail for either of two reasons. First, the whole notion that FOIA may be "displaced" by a disclosure scheme in another statute was placed in doubt by the decision of the United States Court of Appeals for the D.C. Circuit in Washington Post Co. v. United States Department of State, 222 U.S. App. D.C. 248, 685 F.2d 698 (D.C. Cir. 1982). As the Washington Post court pointed out
Other legislation, its history, and powers of Congress underlying it are to be taken as justifying refusal to disclose only when they meet the strictures of one of the specific exemptions included in FOIA.
Id. at 704. Thus, rather than allowing defendant to make an "end run" around FOIA's explicit exemptions by finding regulations pertaining to disclosure in another statute, the court's opinion in Washington Post can be read to require disclosure unless those regulations meet the requirements of one of the Act's nine exemptions. Unless disclosure provisions of another statute are sufficiently specific to meet the requirements of exemption 3, they may not be relied upon to justify such a sweeping exclusion as that advocated by defendant in the case at bar. Alternatively, it seems clear that even if FOIA can be "displaced" as in Zale Corp. v. United States Internal Revenue Service, 481 F. Supp. 486 (D.D.C. 1979), the "scheme" prescribed by the PCRA and rule 32(c) does not approximate the specificity or particularity which would be required of such a "displacement" statute,
particularly given this court's conclusion that rule 32(c) is irrelevant to the question of the Parole Commission's discretion to release presentence reports under the PCRA.
In light of the preceding discussion, it should be made clear that although the court holds that presentence reports and other documents, like diagnostic studies, which are classified as presentence reports, are not per se nondiscoverable under exemptions 3 or 5, the court is not holding that such documents are therefore automatically disclosable under FOIA, either to the subject of the report or to third parties. See Carson, 631 F.2d at 1015 & n.29; Lykins, 725 F.2d at 1459 n.4; see also Crooker v. United States Parole Commission, 730 F.2d 1, 9 (1st Cir. 1984), vacated, 469 U.S. 926, 105 S. Ct. 317, 83 L. Ed. 2d 255, 53 U.S.L.W. 3311 (1984). The possibility still remains that all or part of any given report may remain confidential under one of FOIA's nine exemptions. For example, the Parole Commission's statutory authority to withhold "diagnostic opinions which . . . could lead to a serious disruption of [the prisoner's] institutional program" from the prisoner under 18 U.S.C. § 4208(c)(1) might provide a basis for withholding a diagnostic study under FOIA's exemption 3. See Crooker, 730 F.2d at 9. Similarly, section 4208 (c)(2)'s exemption for documents which reveal "sources of information obtained upon a promise of confidentiality" might be sufficient to satisfy the requirements of exemption 3. Other FOIA exemptions under which nondisclosure might be justified are exemption 6, which allows the withholding of information the disclosure of which would result in an unwarranted invasion of personal privacy, or exemption 7, dealing with law enforcement information. In sum, many of the legitimate concerns raised in defendant's pleadings are addressed by existing FOIA exemptions, some of which may have been applicable to allow the agencies to withhold all or parts of the presentence report or the diagnostic study at issue in the case at bar. Instead, defendant chose to ignore clearly relevant District of Columbia case law even after it had been brought to its attention by plaintiff, who is both pro se and incarcerated, and rested its argument for exemption on the expansive grounds that presentence reports have been given a blanket exemption from FOIA under exemptions 3 or 5. As the court has demonstrated, Carson, Lykins, and the PCRA itself render this position untenable. The government thus has waived its opportunity to litigate the applicability of other possible exemptions by failing to raise them. See Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 792 & n. 38a (D.C. Cir. 1980); Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 779 (D.C. Cir. 1978). Plaintiff's motion for summary judgment on his motion for disclosure of the presentence report and the diagnostic study from the Parole Commission shall therefore be granted.
II. The Bureau of Prisons Letters
Regarding the so-called "short letter," defendant has excised only the names of the sender, an employee of the Juvenile Court, and the addressee, an official of the Bureau of Prisons. According to defendant, "it is likely" that disclosure of these names would "subject these persons to intimidation, harassment, or reprisal," without any corresponding public benefit to be derived from disclosure. Jackson Declaration at 6. The letter involves a request that communication between plaintiff and any of his previous young "associates" be monitored. Plaintiff is incarcerated for transportation of a minor across a state line with the intent to engage the minor in prostitution. Given the close relation of the subject of the letter and the offense for which plaintiff is incarcerated, and the accepted privacy interests in the identities of law enforcement officials, the court finds that defendant was justified in withholding the names under exemption 6. The court is unable to discern any public interest in disclosure sufficient to outweigh the invasion of privacy that would result from the disclosures sought.
Regarding the "long letter," defendant has been required to compare it with a letter previously released by the Parole Commission to determine what similarities exist between the two. According to defendant, the letters are not identical, and in fact were written and signed by different persons and addressed to different persons, address different issues, and contain different information. See Second Jackson Declaration at paras. 4-5. In describing the two-page letter, defendant had earlier stated that it contained "a description of the progress until [the date of the letter] of a then fifteen-year-old boy with whom plaintiff had previously been associated" who was at that time undergoing psychiatric treatment at a state institution. Jackson Declaration at para. 10. As with the short letter, the court agrees with defendant that disclosure of the contents of this letter would constitute a clearly unwarranted invasion of the juvenile's personal privacy without any countervailing public interest in disclosure.
III. FBI Document
Finally, defendant has withheld three of six pages of a document which originated with the Federal Bureau of Investigation, claiming that various deletions are justified under exemptions 7(C) and 7(D). See Defendant's Supplemental Memorandum at 2-3. The requirements for those exemptions have been discussed supra. Without even addressing the particular elements required to justify deletions under those exemptions, however, it is clear that the affidavit and discussion of the deletions are wholly inadequate to justify the application of any exemption to the material withheld.
The court of appeals for this circuit has determined that when an agency decides to withhold information under FOIA, it must supply the requester with a "relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." See Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977); see also Lykins, 725 F.2d at 1463; Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 827-28 (D.C. Cir. 1973). This detailed procedure forces the government to analyze carefully the documents it seeks to withhold, permits the trial court to fulfill its duty of ruling on the applicability of the exemption, and enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. See Lykins, 725 F.2d at 1463; see also Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980).
The sweeping and conclusory statements concerning the applicability of FOIA exemptions 7(C) and 7(D) in the Chester Declaration are obviously insufficient for purposes of the Act. See, e.g., Lykins, 725 F.2d at 1463. Defendant has provided no more than general policy arguments supporting each exemption without specific reference to any portion of the document in question. See generally Chester Declaration. In sum, defendant's declaration is little more than a generic justification for withholding documents under exemptions 7(C) and 7(D) which bears no more relevance to this case than to any other case in which these exemptions are raised.
Because only one brief document is involved, however, the court will order that defendant submit a detailed justification identifying the specific reasons that the particular exemptions are relevant and correlating those claims with the particular parts of the document, as defendant was required by law to do in the first instance. Defendant will file this revised Vaughn affidavit and submit the document in question for the court's in camera examination, after which the court will rule on the exemptions claimed. The court hastens to add that this is not the normal procedure under FOIA, and that an affidavit as inadequate as that submitted in the case at bar might well justify summary judgment against the government in other circumstances.
An appropriate Order accompanies this Memorandum.
This matter is before the court on the parties' cross-motions for summary judgment. For reasons stated in the accompanying Memorandum filed by the court this date, it is, by the court, this 10th day of January, 1985,
ORDERED that plaintiff's motion for summary judgment regarding the presentence report and diagnostic study is granted and defendant's motion for summary judgment regarding those documents is denied; and it is futher
ORDERED that plaintiff's motion for summary judgment regarding the Bureau of Prisons letters is denied, and defendant's motion for summary judgment regarding those letters is granted; and it is further
ORDERED that defendant shall submit to the court a detailed justification for its decision to excise portions of the document which originated with the Federal Bureau of Investigation, to be filed no later than January 21, 1985, and shall submit said document to the court for in camera examination no later than January 21, 1985; and it is further
ORDERED that plaintiff may file an opposition to defendant's revised Vaughn declaration no later than February 11, 1985.