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MATSEY v. UNITED STATES DEPARTMENT OF JUSTICE

United States District Court for the District of Columbia


May 2, 2005.

MARK MATSEY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

The opinion of the court was delivered by: WILLIAM STAFFORD, Senior District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

The plaintiff, Mark Matsey ("Matsey"), an inmate at the Federal Medical Center in Rochester, Minnesota, filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel production of his presentence investigation report. Before the court at this time are the defendant's motion to dismiss or, in the alternative, for summary judgment, and Matsey's cross-motion for summary judgment. Docs. 5 and 6. The parties have responded (docs. 6 & 9) in opposition to the motions, have replied (docs. 9 & 11) to the respective responses, and have filed sur-replies (docs. 12 & 15). The parties have been advised that the motions would be taken under advisement as of a date certain.

I.

  Matsey is a 44-year-old male, currently serving a 51-month sentence for wire fraud. He is incarcerated at the Federal Medical Center ("FMC") in Rochester, Minnesota, and has a projected release date of October 1, 2005.

  Effective November 2, 2002, the Bureau of Prisons ("BOP") adopted a policy of prohibiting inmates from obtaining or possessing photocopies of their presentence investigation reports ("PSRs") or the Statement of Reasons contained in their Judgment and Commitment orders ("SORs"). That policy, which is set out in Program Statement ("PS") 1351.05, entitled "Release of Information," was adopted for "safety and security reasons." PS 1351.05 at 15. Specifically, PS 1351.05 provides:

The Bureau implemented this policy for the following reasons:
? Many PSRs and SORs contain information regarding the inmates' government assistance, financial resources, community affiliations, etc.
? The Bureau has documented an emerging problem where inmates pressure other inmates for a copy of their PSRs and SORs to learn if they are informants, gang members, have financial resources, etc.
? Inmates who refuse to provide the documents are threatened, assaulted, and/or seek protective custody. Likewise, inmates providing PSRs and SORs containing harmful information are faced with the same risks of harm.
Id. at 15-16.

  While PS 1351.05 prohibits sentenced inmates from possessing photocopies of their PSRs and SORs, it allows such inmates to review these documents "under the direct and constant supervision by staff." PS 1351.05 at 17. For pretrial inmates who have yet to be sentenced, possession of the PSR is permitted to facilitate preparation for sentencing. For inmates needing a copy of their PSRs and/or SORs for filing in a court case, BOP will send the documents to appropriate court officials once the inmate completes and submits an "Inmate Request for Certification or Judicial Notice of Presentence Report and/or Statement of Reasons" form.

  Julie Clark ("Clark"), case manager at FMC Rochester, avers that Matsey never requested, verbally or in writing, physical access to his PSR or SOR; nor was he ever denied access to view these documents. Matsey does not contend otherwise.

  According to Clark, inmates are encouraged to request access to documents in writing, via a form entitled "Inmate Request to Staff Member," commonly referred to as a "cop-out," but access is not denied even if an inmate makes a request for access verbally. Once the case manager receives a request, she sets up an appointment-usually within five (5) business days — for the review of documents to take place. During the review, the inmates are permitted to take personal notes but are not permitted to make copies of the documents.

  By "Inmate Request to Staff Member" dated November 23, 2002, Matsey asked Warden Constance Reese ("Warden Reese") for a copy of his PSR pursuant to FOIA and United States v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 100 L. Ed. 2d (1988) (holding that there is no government privilege preventing disclosure of a PSR requested by the subject of the PSR pursuant to FOIA). Warden Reese denied his request by letter dated December 11, 2002. Warden Reese explained that, pursuant to PS 1351.05, inmates were prohibited from possessing photocopies of their PSRs. Warden Reese stated in her letter that BOP's policy was consistent with FOIA and United States v. Julian. By letter dated December 13, 2002, Matsey appealed Warden Reese's denial of his FOIA request to the Office of Information and Privacy ("OIP"), United States Department of Justice ("DOJ"). He stated in his letter that the basis of his appeal was FOIA and the Supreme Court's decision in United States v. Julian. Richard Huff, Co-Director of OIP, responded to Matsey's appeal by letter dated February 11, 2003, stating:

You are entitled to examine your PSI by requesting an opportunity to review it with unit staff. You will not be permitted to retain a copy of your PSI, however, because the BOP has determined that your possession of it could reasonably be expected to cause physical injury or adversely affect the security, safety, or good order of the institution in which you are incarcerated. . . .
Inasmuch as the BOP has not denied you access to any responsive records, this Office cannot take any action on your appeal. . . . Our jurisdiction is limited to the review of those records to which access has in fact been denied.
If you are dissatisfied with my action on your appeal, you may seek judicial review in accordance with 5 U.S.C. § 552(a)(4)(B).
Doc. 6, Matsey Decl., Ex. D.

  Matsey also sought a copy of his PSR through the BOP's Administrative Remedy Program. This program was established by BOP to allow inmates to seek formal redress and review of any issue relating to any aspect of their confinement. 28 C.F.R. § 542.10. The Administrative Remedy Program requires the inmate to first file an Administrative Remedy Request with the Warden at the institution in which he is housed. If he is not satisfied with the Warden's response, he may appeal to the Regional Director. If not satisfied with the Regional Director's response, he may appeal to BOP's Central Office.

  On January 21, 2003, Matsey submitted a Request for Administrative Remedy to the Warden at FMC Rochester. In his request for remedy, Matsey described his previous unsuccessful attempt to obtain a copy of his PSR, challenged the BOP's interpretation of United States v. Julian, and again asked that he be given a copy of his PSR pursuant to FOIA. The Warden denied his request for administrative remedy on February 6, 2003. Matsey filed an administrative appeal of the Warden's February 6th decision on February 14, 2003. That appeal was denied on February 25, 2003 by the BOP's Regional Director of the North Central Regional Office. On May 5, 2003, Matsey appealed the Regional Director's decision to the Central Office. That appeal was denied on May 29, 2003.

  Matsey also sought a copy of his PSR through an FOIA request, dated February 12, 2003, submitted to BOP's Central Office. By letter dated April 22, 2003, Daryl Kosiak ("Kosiak"), Regional Counsel in BOP's North Central Regional Office, responded to Matsey's request, advising Matsey that PS 1351.05 prohibits an inmate from possessing a photocopy of his PSR. Kosiak explained that BOP's policy, as contained in PS 1351.05, "responds to the emerging problem of inmates pressuring other inmates for a copy of their PSRs." Doc. 5, Ex. 7. Kosiak went on to write:

Insofar as you view this as a denial of access, these records are withheld pursuant to the Freedom of Information Act, 5 U.S.C. 552(b)(2)-(7), from disclosure to you under the following exemptions:
(b)(2) — related solely to the internal personnel rules and practices of an agency
(b)(7)(F) — could reasonably be expected to endanger the life or physical safety of any individual
Pursuant to Title 28 Code of Federal Regulations, Section 16.9 or 16.45, the material herewith denied may be appealed to the Assistant Attorney General, by filing a written appeal within 60 days from the date of this letter. Both the appeal letter and face of the envelope should be marked "Freedom of Information Act Appeal," and should be addressed to the Office of Information and Privacy, U.S. Department of Justice, Washington, D.C. 20530.
Id. According to Leeann Tufte, Paralegal Specialist for the North Central Regional Office and Regional FOIA Coordinator, Matsey did not appeal Kosiak's decision to the OIP.

  Matsey filed the complaint before this court on April 15, 2003, more than a month before the Central Office denied his administrative appeal on May 29, 2003. In his complaint, Matsey does not mention the administrative remedy process, but he alleges that OIP denied his appeal of Warden Reese's December 11, 2002, decision by letter dated February 11, 2003. He alleges that DOJ's refusal to make his PSR available to him for copying is unlawful under FOIA. He seeks an order requiring DOJ to make his PSR available to him.

  II.

  Among other things, DOJ argues that Matsey has failed to state a claim upon which relief may be granted. According to DOJ, Matsey has failed to allege an improper withholding of agency records under FOIA because he does not — and cannot — allege that he was denied access to his PSR. DOJ maintains that access to records is all that is required under FOIA.

 

In pertinent part, FOIA provides as follows: Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person.
5 U.S.C. § 552(a)(3)(A). By amendment enacted in 1996, Congress added the following section to FOIA:
In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
5 U.S.C. § 552(a)(3)(B).

  DOJ cites a number of cases in support of its contention that access to an agency's records is all that is required under FOIA. Oglesby v. United States Dep't of the Army, 920 F.2d 57, 70 (D.C. Cir. 1990) (finding that agency's response of "merely provid[ing] records for appellant's review in its public reading room . . . was adequate under FOIA"); Tax Analysts v. United States Department of Justice, 845 F.2d 1060 (D.C. Cir. 1988), aff'd, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989) (acknowledging, in dicta, that an agency "need not respond to a FOIA request for copies of documents where the agency itself has provided an alternative form of access," while holding that "an agency must itself make disclosable agency records available to the public and may not on grounds of administrative convenience avoid this statutory duty by pointing to another public source for the information"); Grunfeld & Herrick v. United States Customs Service, 709 F.2d 41, 42 (11th Cir. 1983) (holding that the Customs Service complied with FOIA by posting the requested information at the customshouse); Lead Industries Association, Inc. v. Occupational Safety & Health Administration, 610 F.2d 70, 86 (2d Cir. 1979) (agency not required under FOIA to send requester copies of records that had appeared previously in a report published by the agency). DOJ cites no case, however, that was decided after the 1996 amendment to FOIA, which added the requirement that "an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B).

  Unlike DOJ, Matsey has cited a post-1996 case, one decided by the Fourth Circuit in 2003, which holds that "under FOIA, an inmate is entitled to a copy of his of her own PSR from the Department of Justice ("DOJ"), the BOP, or the Parole Commission." United States v. Pugh, 69 Fed. Appx. 628, 2003 WL 21640504 (4th Cir. July 14, 2003). Matsey contends, and this court agrees, that he has stated a claim for relief under FOIA, as amended in 1996, by alleging that DOJ improperly refused to make his PSR available for copying. DOJ's request for dismissal for failure to state a claim will accordingly be denied.

  III.

  DOJ also contends that this case should be dismissed based on Matsey's alleged failure to exhaust his administrative remedies. In its motion to dismiss or, in the alternative, for summary judgment, DOJ argues that dismissal is required because Matsey failed to exhaust BOP's three-level Administrative Remedy Program. Specifically, DOJ argues that Matsey failed to exhaust his administrative remedies because he filed suit on April 15, 2003, a month and a half before the administrative remedy process ended on May 29, 2003, when the Central Office denied Matsey's administrative appeal. DOJ does not contend in its motion to dismiss that Matsey failed to exhaust the statutorily-mandated remedies under FOIA.

  In response, Matsey points out that he requested a copy of his PSR under FOIA procedures on November 23, 2003. When that request was denied, he appealed to OIP. When OIP responded to his appeal by letter dated February 11, 2003, Matsey was informed that, "[i]f you are dissatisfied with [OIP's] action on your appeal, you may seek judicial review in accordance with 5 U.S.C. § 552(a)(4)(B)." Matsey filed suit on April 15, 2003, based on his dissatisfaction with OIP's action. According to Matsey, because he was proceeding under FOIA, he was not required to exhaust his remedies through the Administrative Remedy Program. The court agrees.

  When an inmate is incarcerated, the BOP creates an Inmate Central File that contains information relevant to that inmate, including, but not limited to, documents relating to the inmate's sentence. PS 5800.11. PSRs are ordinarily maintained in the disclosable portion of an inmate's Central File. PS 1351.05 at 16. Federal regulations provide that an inmate may view information in the disclosable portion of his Central File "without filing a FOIA request." 28 C.F.R. § 513.40. Indeed, inmates "are encouraged to use the simple access procedures described in [section 513.40 of the regulations] to review disclosable records maintained in his or her Inmate Central File, rather than the FOIA procedures described in §§ 513.60 through 513.68." Id. (emphasis added). Under the "simple access procedures," an inmate submits a request to a staff member designated by the warden at his institution, and prison staff is required "to acknowledge the request and schedule the inmate, as promptly as is practical, for a review of the file at a time which will not disrupt institution operations." Id. at 513.40(a). If any information is withheld from the inmate, staff is required to "provide the inmate with a general description of that information and also . . . notify the inmate that he or she may file a FOIA request." 28 C.F.R. § 513.40.

  Sections 513.60 through 513.68 of the regulations address the separate process used for FOIA requests. Section 513.61(b) provides that "[a]n inmate may make a request for access to documents in his or her Inmate Central File or Medical File (including documents which have been withheld from disclosure during the inmate's review of his or her Inmate Central File pursuant to § 513.40) and/or other documents concerning the inmate which are not contained in the Inmate Central File or Medical File." Prison staff are required to process FOIA requests "pursuant to the applicable provisions of the Freedom of Information Act, 5 U.S.C. 552." 28 C.F.R. § 513.61(b).

  BOP's Program Statement on Central Files provides:

An inmate has the option to look at materials maintained in his/her Inmate Central File. This [simple access] procedure is not required by either the Freedom of Information Act or Privacy Act. A request submitted under FOIA, for example, is processed formally under Department of Justice and Bureau guidelines for handling such requests, in light of the specific statutory provisions. By contrast, the information contained in this section establishes an administrative procedure for inmate access to records which can properly be shown to the inmate in accordance with sound correctional practices and concerns.
PS 5800.11 at 18.

  BOP's Administrative Remedy Program is addressed in 28 C.F.R. Part 542. Before August 6, 2002, section 542.12 excluded certain matters, including FOIA requests, from consideration under the Administrative Remedy Program. By rule effective August 6, 2002, BOP deleted section 542.12, and the exclusions therein specified, from the regulations. BOP described the change as follows:

Our new final rule. In this rule, we remove these exclusions. In accepting such requests or appeals under the Administrative Remedy Program, we will more quickly address the full range of corrective actions available, including any that may be peripheral to issues which have other statutorily-mandated administrative procedures in place.
. . . .
We revise § 542.10 to allow inmates to file any claim under the Administrative Remedy Program, even those which have statutorily-mandated remedies. In our revision, we state that, if an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, we will refer the inmate to the appropriate statutorily-mandated procedures.
This rule does not require the inmate to file under the Administrative Remedy Program before filing under statutorily-mandated procedures for . . . Freedom of Information Act . . . requests.
67 F.R. 50804-01 (August 6, 2002) (emphasis added).

  DOJ has not cited, nor has this court discovered, any authority which suggests, much less holds, that an inmate is precluded from pursuing his remedies under FOIA unless and until he has exhausted his remedies under BOP's Administrative Remedy Program. Indeed, the regulations and BOP's Program Statements suggest otherwise. Sections 513.40 and 513.61 of the regulations state that inmates are encouraged to use BOP's simple access procedures rather than resorting to FOIA procedures. BOP's Program Statement on Central Files specifically provides that FOIA does not require an inmate to first use BOP's simple access procedures. Until 2002, section 542.12 of the regulations specifically excluded FOIA claims from the Administrative Remedy Program. When BOP amended the regulations to delete the FOIA exclusion in 2002, it explained that, while the exclusion was being deleted "to allow inmates to file any claim under the Administrative Remedy Program before filing under statutorily-mandated procedures," the amended regulation "does not require the inmate to file under the Administrative Remedy Program before filing under statutorily-mandated [FOIA] procedures." 67 F.R. 50804-01 (August 6, 2002).

  Because DOJ has not demonstrated that Matsey was required to exhaust his remedies under BOP's Administrative Remedy Program before proceeding to this court under FOIA, DOJ's request for dismissal for failure to exhaust BOP's Administrative Remedy Program is not well-taken.

  In its reply to Matsey's response in opposition to DOJ's motion to dismiss, DOJ argues that Matsey not only failed to exhaust his remedies under the Administrative Remedy Program but also failed to properly exhaust his remedies under FOIA. DOJ maintains that, since Matsey's November 23, 2002, letter to the Warden requesting a copy of his PSR was allegedly neither labeled as a FOIA request nor treated as a FOIA request by BOP or OIP, it was insufficient to satisfy FOIA's statutory procedures.*fn1

  Matsey concedes that FOIA requires an inmate to exhaust his administrative remedies before he seeks judicial review of a FOIA request. He maintains, however, that he satisfied his duty to exhaust by first submitting a FOIA request to the Warden, then appealing the Warden's denial of his request to OIP. The court disagrees.

  Under FOIA, a party seeking agency records must comply with the procedures set forth in regulations promulgated by that agency. See, e.g., 5 U.S.C. § 552(a)(3) (providing that an agency must make records promptly available upon any request "made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed"). DOJ has promulgated regulations that describe the applicable procedures for a FOIA request addressed to DOJ's various components, including the BOP. 28 C.F.R. § 16.1-.12. Under DOJ's regulations, a party "may make a request for records of the Department of Justice by writing directly to the Department component that maintains those records." 28 C.F.R. § 16.3(a). DOJ's regulations also provide that a "request should be sent to the component's FOIA office at the address listed in appendix I to part 16." Id. Appendix I to Part 16 lists the BOP's address, for purposes of FOIA requests, as Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room 738, 320 First Street, NW., Washington, DC 20534-0001. BOP's regulations likewise provide that FOIA requests must "be made in writing and addressed to the Director, Federal Bureau of Prisons, 320 First Street, NW., Washington, DC 20534." 28 C.F.R. § 513.60.

  When making his FOIA request for a copy of his PSR, Matsey was obliged to follow the specific FOIA procedures established by DOJ and BOP. This he failed to do. His Inmate Request to the Warden, dated November 23, 2002, did not satisfy his responsibility to send a written request — with the words "FREEDOM OF INFORMATION REQUEST" clearly marked on the face of the letter and the envelope — to the office of the official who is responsible for the control of the records requested, namely, the Director of BOP's central office in Washington. 28 C.F.R. § 513.60. By failing to follow the procedures set forth in 28 C.F.R. §§ 16.3 and 513.60, Matsey failed to exhaust his administrative remedies under FOIA. Because exhaustion of administrative remedies is required for maintenance of a suit under FOIA, Matsey's complaint must be dismissed.

  Accordingly, it is ORDERED:

  1. DOJ's motion to dismiss (doc. 5) for failure to exhaust administrative remedies is GRANTED, and Matsey's complaint and this action are hereby DISMISSED for failure to exhaust administrative remedies.

  2. Matsey's cross motion for summary judgment (doc. 6) is DENIED.

  3. The clerk shall enter judgment accordingly.

  DONE AND ORDERED.


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