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
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
? 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
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 ...