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May 2, 2005.

MARK MATSEY, Plaintiff,

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


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.


  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 ...

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