The opinion of the court was delivered by: HARRIS
STANLEY S. HARRIS, District Judge.
This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982), to obtain a copy of the plaintiff's presentence report (PSR).
The pro se plaintiff, Don Durns, is an inmate of the Federal Correctional Institution in Leavenworth, Kansas. The defendants, the Bureau of Prisons and officials thereof, filed a motion for summary judgment on the ground that a specific statute governing disclosure of the PSR requires the application of FOIA exemption (b)(3) to this request. Therefore, they contend, the PSR properly was withheld.
The Court concludes that the PSR is not completely exempt from disclosure under exemption (b)(3). The plaintiff is entitled to a copy of his PSR unless the Government can show that specific portions of the PSR otherwise are subject to an exemption.
Judge Pratt of this court noted, in Lininger v. United States Department of Justice, CA No. 84-1129 (D.D.C. Oct. 30, 1984) (Memorandum Opinion), that the "status of presentence reports under FOIA has generated a significant amount of case law, particularly in this circuit." Id. at 1. The FOIA grants access to documents and records of the federal agencies. In Carson v. United States Department of Justice, 203 U.S. App. D.C. 426, 631 F.2d 1008 (D.C.Cir.1980), the Court of Appeals for this circuit held that a PSR in the possession of the United States Parole Commission is an "agency record" for the purpose of the FOIA. Id. at 1009.
That decision was reaffirmed in Lykins v. United States Department of Justice, 233 U.S. App. D.C. 349, 725 F.2d 1455 (D.C.Cir.1984). Under the FOIA, disclosure of agency records is the rule and government information must be disclosed unless it falls within one of the nine exemptions of the Act. See Lykins, 725 F.2d at 1466; Metropolitan Life Insurance Co. v. Usery, 426 F. Supp. 150, 156 (D.D.C.1976). Upon remand to the district court, Lykins ultimately was decided on the basis of a procedural problem and the applicability of the exemptions was never determined (although the case had been remanded for such a determination). Lykins, No. 82-241 (D.D.C. Sept. 28, 1984) (Memorandum). Lininger was, therefore, the first decision in this jurisdiction to address the FOIA exemptions in holding that exemption (b)(3) cannot be read to prevent complete disclosure of a PSR, particularly when, as was true there, the prisoner had been permitted to read his entire PSR prior to sentencing.
The PSR unquestionably is prepared for the specific objective of aiding a trial judge in the difficult task of sentencing. Thereafter, the same document is used by the affected agencies in making significant determinations relating to the custody and parole of the prisoner. Thus, its accuracy is of considerable importance. See Fed.R.Crim.P. 32(c)(3). It also includes information that, if released to the prisoner, could result in considerable harm. For example, the PSR may reveal the identity of informers or endanger the life of law enforcement personnel. It also may include diagnostic opinions that, if disclosed, might disrupt a rehabilitative program. Rule 32 of the Federal Rules of Criminal Procedure addresses these concerns. While the sentencing court is required to permit the defendant and his counsel to read the PSR at a reasonable time before imposing sentence, protections against negative consequences have been adopted. The ultimate sentencing recommendations are excluded, and the Court is given discretion to withhold (1) diagnostic opinions which, in its opinion, might seriously disrupt a rehabilitative program, (2) any sources of information obtained upon a promise of confidentiality, or (3) any other information which might result in harm, physical or otherwise, to the defendant or others.
The Government argues that Rule 32 supplies the statutory basis for nondisclosure under FOIA's exemption (b)(3). Exemption (b)(3) excludes from disclosure agency records that are specifically exempted from disclosure by statute, provided that such statute:
(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
5 U.S.C. § 552(b)(3). The Government asserts that Rule 32 falls within subsection (b)(3)(A) because, from the language of the statute, "it is absolutely clear" that the decision to permit an individual to retain a copy of his PSR rests solely with the sentencing judge, and, thus, an agency which receives a copy of the PSR has no discretion on the issue.
In the alternative, the Government argues that even if Rule 32 does not comply with subsection (b)(3)(A), it does comply with subsection (b)(3)(B).
That is, it establishes particular criteria for withholding or refers to particular types of matters to be withheld. However, for the same reason Rule 32 does not apply to the agencies under subsection (b)(3)(A), it also does not apply under subsection (b)(3)(B) because the Bureau of Prisons does not fall within the purview of Rule 32.
In a supplemental memorandum in support of defendants' motion for summary judgment, the Government asserts that the Parole Commission and Reorganization Act, 18 U.S.C. § 4208 (1982), serves as the basis for complete nondisclosure when read in conjunction with Rule 32. The Court does not accept this reasoning, but does conclude that § 4208 provides for nondisclosure of specific parts of a PSR.
Section 4208(b) provides that at least 30 days prior to any parole determination, the prisoner shall be provided with reasonable access to a report or other document to be used by the Parole Commission in making its determination. 18 U.S.C. § 4208(b)(2). However, the statute parallels the language of Rule 32 by exempting from disclosure diagnostic opinions which, if disclosed, would seriously disrupt an institutional program, information which, if disclosed, would reveal a confidential source, or any information which, if disclosed, might result in harm to the defendant or others. If any document (or any portion thereof) is deemed by the Parole Commission, the Bureau of Prisons, or any other agency to fall within these exclusions, it is the duty of the Commission, the Bureau, or any other agency to summarize the basic contents of the material withheld, bearing in mind the need for confidentiality or the impact on the inmate, or both, and to furnish such a summary to the inmate. 18 U.S.C. § 4208(c).
Section 4208(c) establishes particular criteria for withholding certain types of information as is required for exemption from disclosure under 5 U.S.C. § 552(b)(3)(B). It is based on a congressional determination of the public's interest in maintaining the confidentiality of specific portions of a PSR. Thus, it brings PSRs within exemption (b)(3) to the extent that potentially harmful parts of the presentence report may be withheld from disclosure under the FOIA.