United States Department of Justice v. Julian

486 U.S. 1, 108 S. Ct. 1606, 100 L. Ed. 2d 1, 1988 U.S. LEXIS 2101, 56 U.S.L.W. 4403, 15 Media L. Rep. (BNA) 1393

• Court: Supreme Court of the United States
• Decided: May 16, 1988
• Docket: 86-1357
• Status: Published

Opinions

Chief Justice Rehnquist

delivered the opinion of the Court.

Respondents in this case are prison inmates who sued under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, for disclosure of their presentence investigation reports. These reports are prepared by a probation officer for use by the district court at sentencing; they contain background information about a defendant and the circumstances of his offense. After sentencing, the reports are typically transmitted to the Bureau of Prisons and then to the Parole Commission for eventual use in determining whether a prisoner should be released on parole. The courts below ordered petitioners — the Department of Justice and the Parole Commission — to disclose the reports. The question we are now called on to decide is whether the FOIA requires that these presentence investigation reports be disclosed by petitioners or whether the reports fall under one of the FOIA’s statutory exemptions.

Rule 32(c) of the Federal Rules of Criminal Procedure outlines the requirements for preparation and disclosure of a presentence report for a criminal defendant who has been adjudged guilty. Rule 32(c)(1) provides that before imposition of sentence the probation service of the district court shall make an investigation into the defendant’s background and the circumstances of the offense.¹ The results of the investigation are compiled into a report, which under Rule 32(c)(2) must contain the defendant’s prior criminal record, a description of the circumstances of the offense and the defendant’s behavior, a discussion of the loss or harm suffered by any victims of the offense, and any other information that might aid the court in sentencing, including the restitution needs of the victim.

The Rule also specifies the procedure by which the court is to disclose the report and its contents to a defendant. Rule 32(c)(3)(A) states that “[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report . . . exclusive of any recommendation as to sentence.” The court may not disclose, however, portions of the report that contain “diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm,” physical or otherwise, to the defendant or other persons.” Ibid. If the report does contain this type of information, the court is required to give orally or in writing a summary of the factual information that has been withheld and that is to be relied on in determining an appropriate sentence. Once the report has been disclosed, the defendant and his counsel are to be given an opportunity to comment on the report and to introduce evidence showing that the report contains factual inaccuracies. Rule 32(c)(3)(E) also provides that “[a]ny copies of the pre-sentence investigation report made available to the defendant and his counsel and the attorney for the government shall be returned to the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs.”

After the defendant is sentenced, a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant’s classification as an inmate, see 28 CFR §§524.10, 524.12(e) (1987), choosing an appropriate treatment program, or deciding eligibility for various privileges. See Brief for Petitioners 7 (citing Fennell & Hall, Due Process at Sentencing, 93 Harv. L. Rev. 1615, 1679 (1980)).² A copy of the presentence report is also transmitted to the United States Parole Commission pursuant to § 2(e) of the Parole Commission and Reorganization Act of 1976 (Parole Act),³ 18 U. S. C. § 4205(e), which makes it the “duty of the . . . probation officers” to furnish “information available to such officer . . . concerning any eligible prisoner or parolee” to the Commission upon request. The Parole Commission is then required by statute to consider the report, among other documents, in making a parole decision. § 4207(3).

The Parole Act also requires that, at least 30 days before a scheduled parole hearing, the prisoner be provided with “reasonable access to [the] report or other document to be used by the Commission in making” its parole determination. § 4208(b). As in Rule 32(c)(3)(A), however, the Act exempts from this disclosure requirement the same three categories of information — diagnostic opinions, confidential information, and potentially harmful information — that were protected from disclosure by the district court. The Act also requires that if any such information is excluded from disclosure, it is the duty of the Commission (or any other agency) “to summarize the basic contents of the material withheld . . . and furnish such summary to the inmate.” §4208(c)(3); see also 28 CFR § 2.55(c) (1987).⁴ The Parole Act does not contain, however, any express requirement that the inmate return all or any copies of the documents to which he is given “reasonable access.”

The present case stems from two separate requests by individual inmates for copies of their presentence reports. In 1984, respondent Kenneth Michael Julian, an inmate in federal prison in Arizona, asked the Parole Commission to furnish him with a copy of his presentence report. When his request was denied, Julian brought this FOIA suit against the Department of Justice in the United States District Court for the District of Arizona. In a brief order, the District Court granted Julian’s motion for summary judgment and ordered the Government to comply with his request. In 1984, respondent Margaret J. Wallace, then an inmate in federal prison in California, filed a FOIA request with the Parole Commission for all of the Commission’s records pertaining to her. The Commission honored her request in large part, but refused to turn over a copy of her presentence report. Wallace then filed suit against the Parole Commission⁵ in the United States District Court for the Northern District of California. This court, too, ordered that the pre-sentence report be released.

The two cases were consolidated on appeal before the United States Court of Appeals for the Ninth Circuit, which affirmed the judgment in each. 806 F. 2d 1411 (1986). After first stating that the presentence reports are “agency records” for purposes of the FOIA,⁶ the court rejected the Government’s contentions that presentence reports are exempt from disclosure under both 5 U. S. C. § 552(b)(3) (Exemption 3) and § 552(b)(5) (Exemption .5). While certain parts of the presentence reports may be withheld pursuant to Rule 32(c)(3) and the Parole Act, 18 U. S. C. § 4208(c), the court found that “neither Exemption 3 nor Exemption 5 provides a blanket exemption for presentence investigation reports” when the FOIA request is made by the subject of the presentence report. 806 F. 2d, at 1416. The court also rejected the Government’s argument that the FOIA’s disclosure requirements were superseded by the special statutory procedures for obtaining presentence reports set out in Rule 32(c) and the Parole Act. Because this decision of the Court of Appeals conflicts with an earlier decision of the United States Court of Appeals for the District of Columbia Circuit, see Durns v. Bureau of Prisons, 256 U. S. App. D. C. 156, 804 F. 2d 701, rehearing en banc denied, 257 U. S. App. D. C. 30, 806 F. 2d 1122 (1986), cert. pending, No. 86-6550, and because it raises several important statutory issues, we granted certiorari, 482 U. S. 926 (1987), and we now affirm.

The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b). See United States v. Weber Aircraft Corp., 465 U. S. 792, 793-794 (1984). Congress created these exemptions because it “realized that legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U. S. 615, 621 (1982); see also CIA v. Sims, 471 U. S. 159, 167 (1985). Nonetheless, “[t]he mandate of the FOIA calls for broad disclosure of Government records,” id., at 166, and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed, see Abramson, supra, at 630; Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). With this principle in mind, we turn to consider whether, as the Government contends, presen-tence investigation reports are exempted from disclosure under either FOIA Exemption 3 or Exemption 5.

Exemption 3 of the FOIA permits agencies to withhold matters 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.” § 552(b)(3).

The Government argues that this Exemption applies to pre-sentence reports because Rule 32(c) and the Parole Act are statutes that specifically exempt the reports from disclosure and that “refer to particular types of matters to be withheld.” To some extent this is clearly true: both the Rule and the Parole Act specifically exempt from disclosure any information in the report that relates to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties. See Rule 32(c)(3)(A); 18 U. S. C. § 4208(c). This information is thus exempt from disclosure under the FOIA.

Beyond this, however, neither the Rule nor the Act satisfies the requirements of Exemption 3. Both provisions have been recently changed, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. For example, in 1966, Rule 32(c) was amended to give sentencing courts the discretion to disclose the reports to defense attorneys and prosecutors. The Advisory Committee Notes indicate that the purpose of this amendment was:

“[T]o make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” 18 U. S. C. App., p. 625, 39 F. R. D. 69, 194 (1966).

Congress amended the Rule again in 1974,⁷ this time changing it to state that “[bjefore imposing sentence the court shall upon request permit the defendant, or his counsel... , to read the report of the presentence investigation,” Pub. L. 94-64, 89 Stat. 376 (emphasis added). In 1983, after an empirical study revealed that “the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information,"Advisory Committee Notes, 18 U. S. C. App., p. 996 (1982 ed., Supp. IV), 97 F. R. D. 245, 307 (1983), Congress made additional changes in the Rule. It made disclosure of the report mandatory by eliminating the request requirement; it authorized disclosure to both the defendant and defense counsel; and it required that disclosure be made at a reasonable time before sentencing.

All of this makes clear that the Rule serves two purposes: it prevents disclosure of the three categories of information described above, but it facilitates disclosure of the balance of the report to the defendant. Similarly, the provision of the Parole Act dealing with presentence reports is also designed to ensure that much of the information on which a parole decision is to be based, including the presentence report, be disclosed to the potential parolee. In line with this intent, Congress expressly required that all prisoners be furnished with “reasonable access” to the pertinent documents at least 30 days before a parole hearing. § 4208(b).

The Government argues that while Congress did intend that defendants be given some access to their presentence reports, it also sought to limit that access by requiring that all copies of reports that are furnished pursuant to Rule 32(c) be returned to the court, unless the court directs otherwise. Fed. Rule Crim. Proc. 32(c)(3)(E). As stated in the Advisory Committee Notes, the purpose of this provision was “to insure that [the reports] do not become available to unauthorized persons.” 18 U. S. C. App., p. 627, 62 F. R. D. 271, 325 (1974). Admittedly this provision does qualify somewhat the defendant’s access to his or her presentence report when that report is furnished by the district court in the context of sentencing, but in our opinion it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that “specifically exempt[s] from disclosure” for purposes of Exemption 3 of the FOIA. And, the Parole Act, which governs the Parole Commission’s duties in regard to disclosure of presentence reports, does not itself contain a similar provision. The Act only requires that “reasonable access” to the report be given; there is no express limitation on an inmate’s power to retain a copy of the report. Even if we assume, as the Government suggests, that the Parole Act implicitly adopts the restriction contained in Rule 32(c)(3)(E), this would still not convert § 4208 into an Exemption 3 statute. Exemption 3 permits an agency to withhold only those parts of a presentence report that are expressly protected by Rule 32(c)(3)(A) or 18 U. S. C. § 4208(c); the remaining parts of the reports are not covered by this exemption, and thus must be disclosed⁸ unless there is some other exemption which applies to them.

The Government also relies on Exemption 5 of the FOIA to support withholding of the requested documents. This Exemption makes the FOIA inapplicable to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U. S. C. § 552(b)(5).⁹ In the past, we have interpreted this somewhat Delphic provision as “incorporating] the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 184 (1975); see also FTC v. Grolier Inc., 462 U. S. 19, 26-27 (1983); Weber Aircraft Corp., 465 U. S., at 799. As we stated in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 149 (1975), Exemption 5 “exempt[s] those documents, and only those documents, normally privileged in the civil discovery context.” See also H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (the purpose of Exemption 5 is to ensure that “any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public”). Accordingly, “[t]he test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Grolier, supra, at 26.

Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. See, e. g., United States v. McKnight, 771 F. 2d 388, 390 (CA8 1985); United States v. Anderson, 724 F. 2d 596, 598 (CA7 1984); United States v. Charmer Industries, Inc., 711 F. 2d 1164, 1173-1176 (CA2 1983); Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229 (ND Cal. 1968). As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. See, e. g., United States v. Martinello, 556 F. 2d 1215, 1216 (CA5 1977). A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. See, e. g., Charmer, supra, at 1174-1176 (following Hancock Brothers, Inc. v. Jones, supra, in concluding that a report may not be disclosed “in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice”).

There is no indication, however, that similar restrictions on discovery of presentence investigation reports have been recognized by the courts when the individual requesting discovery is the subject of the report. Indeed, there seem to be no reported judicial decisions on the subject. By itself, of course, the fact that there are no cases directly on point with respect to this particular category of requests for information is not conclusive evidence that no discovery privilege should be recognized in this situation. From our perspective, however, it appears that the reasoning of the cases denying disclosure to third-party requesters would have little applicability to a request by a defendant to examine his own report, particularly in light of Rule 32(c)’s specific mandate that the report be disclosed to the defendant during sentencing. We note in addition that most privileges of the sort described in Exemption 5 arise as a result of judicial decision. See, e. g., United States v. Reynolds, 345 U. S. 1, 7-8 (1953). But unless the privilege is constitutionally rooted, Congress may determine for itself which privileges the Government may avail itself of and which it may not. Here, the thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks so strongly against the existence of a privilege on the part of the Government when the request is from the subject of the report that we think it accurate to say that Congress has strongly intimated, if it has not actually provided, that no such privilege should exist.

The Government contends nonetheless that because Exemption 5 applies to documents that “would not be available by law to a party ... in litigation with the agency” (emphasis added), we cannot construe Exemption 5 in such a way as to make an agency’s duty to disclose a presentence report turn on the nature or identity of the requester. The Government points to our reasoning in Grolier, where we held that documents that were privileged under the work-product doctrine were not “routinely” available for Exemption 5 purposes even though it was possible for some parties seeking discovery to obtain access to the document by showing “substantial need.” 462 U. S., at 27. As we stated, “[wjhether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to ‘routine’ disclosure.” Ibid. Such a result, “by establishing a discrete category of exempt information, implements the congressional intent to provide ‘workable’ rules.” Ibid.; see also EPA v. Mink, 410 U. S. 73, 79 (1973) (the exemptions are “plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed”).

Contrary to the Government’s contention, however, nothing in Grolier, or in the language of Exemption 5, requires that, even though Congress has spoken in the manner that it has, a privilege against disclosure must nonetheless be extended to all requests for these reports, or to none at all. Grolier held that the fact that a claim of privilege might be overridden in a particular case by special circumstances did not mean that discovery was “routinely available” within the meaning of Exemption 5. We reaffirm that holding, but we decline the Government’s invitation to extend i1>to circumstances in which there is no basis for a claim of privilege from disclosure against one class of requesters, although there is a perfectly sound basis for resisting disclosure at the behest of another class of requesters. The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating a claim of privilege under Exemption 5 differently as to one class of those who make requests than as to another class. In this case, it seems clear that there is good reason to differentiate between á governmental claim of privilege for presentence reports when a third party is making the request and such a claim when the request is made by the subject of the report. As we noted above, there simply is no privilege preventing disclosure in the latter situation. Even under our ruling in Grolier, therefore, discovery of the reports by the defendants themselves can be said to be “routine.”

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

1 No presentence investigation is required if, with the permission of the court, the defendant waives the report, or if the court finds that there is already sufficient information in the record to enable a meaningful exercise of the court’s sentencing discretion. If the court finds that no report is necessary, it must explain this finding on the record. Fed. Rule Crim. Proc. 32(c)(1).

2 This use of the presentenee report by the Bureau of Prisons is not required by statute, although it has apparently been the practice for some time. See Fennell & Hall, 93 Harv. L. Rev., at 1679. Indeed, the Advisory Committee Notes to the 1983 Amendments to Rule 32(e) expressly note the practice of transmitting the report to the Bureau of Prisons. See 18 U. S. C. App., p. 995 (1982 ed., Supp. IV), 97 F. R. D. 245, 306, 308 (1983).

3 The Comprehensive Crime Control Act of 1984, Pub. L. 98-473, Tit. II, ch. 2, 98 Stat. 1987, has significantly revised the federal system of sentencing that was in place at the time the Parole Act was adopted in 1976. Most importantly, the Crime Control Act mandates that all sentences of imprisonment shall be for fixed terms, see 18 U. S. C. §§3581, 3582(a) (1982 ed., Supp. IV), and eliminates the possibility of release on parole prior to the end of a sentence, §§ 3621(a), 3624(a). Accordingly, the Crime Control Act also provided that the Parole Act was to be repealed on November 1, 1987, when the new sentencing provisions went into effect. The Parole Commission will continue to operate for five years, however, in order to make parole decisions for individuals sentenced before November 1, 1987. During this 5-year period, the Parole Act will remain in effect as to those individuals. Pub. L. 98-473, § 235(b)(1)(A), 98 Stat. 2032. Thus, although the Parole Commission is to be phased out, it will still be handling presentence reports for individual defendants for some time. The Government also points out that even after the Parole Commission is dissolved, the Bureau of Prisons will continue to receive copies of presentence reports from the district courts.

4 According to the Government, the usual practice is for the probation officer to identify any information that was excluded by the district court and to provide the Commission with copies of the summaries that were used by the court. Brief for Petitioners 9 (citing Probation Division, Administrative Office of the United States Courts, The Presentenee Investigation Report 2 (1984)).

5 She also named as a defendant in her action Charles Turnbo, the warden of the prison in which she was incarcerated. The apparent reason for this is that Wallace brought her action as a petition for habeas corpus pursuant to 28 U. S. C. § 2241. The District Court, however, treated her claim as a suit against an agency under the FOIA. See 5 U. S. C. § 552(a)(4)(B).

6 The Government does not dispute this conclusion on this appeal.

7 The amendments became effective on December 1, 1975.

8 Under § 552(b)(9), an agency must supply to a FOIA applicant “[a]ny reasonably segregable portion of a record. . . after deletion of the portions which are exempt.”

9 Respondents argue that presentence memorandums are not “inter-agency” records for purposes of Exemption 5. The Court of Appeals did not address this issue, however, and we do not find it necessary to do so in light of our disposition today.