United States District Court for the District of Columbia
May 2, 2005.
MARK MATSEY, Plaintiff,
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
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 to him for copying is
unlawful under FOIA. He seeks an order requiring DOJ to make his
PSR available to him.
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
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.
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
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
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
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
2. Matsey's cross motion for summary judgment (doc. 6) is
3. The clerk shall enter judgment accordingly.
DONE AND ORDERED.