After more than two years without a Freedom of Information Act case being considered by the United States Supreme Court, the Court's 1987-1988 Term has brought an upswing in FOIA activity.
On January 19, the Supreme Court has scheduled oral argument in an Exemption 5 case, Julian v. Department of Justice, 806 F.2d 1411 (9th Cir. 1986), cert. granted, 107 S. Ct. 3209 (1987), which involves the application of the relatively narrow presentence report privilege under that exemption.
In Julian, a federal prisoner seeks FOIA access to his presentence report, a document that routinely is prepared within the judicial branch for sentencing purposes and then transmitted to the Department of Justice for penal and parole purposes. Under applicable rules of procedure, convicts are permitted to view their presentence reports (except for particularly sensitive portions) at the times of sentencing and parole consideration, but they may not keep copies of them.
The question presented in Julian is whether someone may use the FOIA to get greater access to his presentence report, or whether a recognized discovery privilege that ordinarily protects such reports from third-party access can be used to preclude FOIA access, even by the subject of a report, under Exemption 5.
The Ninth Circuit Court of Appeals in Julian held that the privilege cannot be so employed against a report's very subject. On the other hand, the D.C. Circuit Court of Appeals, in Durns v. Bureau of Prisons, 804 F.2d 701 (D.C. Cir.), reh'g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986), petition for cert. filed, No. 86-6550 (Mar. 17, 1987), ruled that it can. The two decisions thus present a square conflict for the Supreme Court to resolve in Julian, with Durns meanwhile being held in abeyance, although the primary issue of the applicability of this particular privilege is not one of broad, governmentwide significance.
Also potentially at stake in the Julian case, however, is the question of the proper interpretation of the threshold language of Exemption 5. That language -- which on its face requires that a record be an "inter-agency or intra-agency" document before it can be considered for possible Exemption 5 protection -- could be regarded as a dispositive barrier to any consideration of the possible applicability of the presentence report privilege under the FOIA.
Although the Ninth Circuit in Julian did not reach that vital issue, the D.C. Circuit in Durns specifically held that the threshold requirement of Exemption 5 does not pose a barrier to privilege protection for presentence reports. It declared, in what has come to be taken as the majority view on the issue, that Exemption 5's threshold must be given "a functional rather than a literal" interpretation.
Consequently, in deciding Julian, the Supreme Court will have an occasion to squarely confront this broader issue of Exemption 5 interpretation as it resolves the question of whether the presentence report privilege can be applied against a first-party requester. A decision that it can be so applied would necessarily require the Supreme Court's endorsement of the more pragmatic Exemption 5 view espoused by the D.C. Circuit.
Furthermore, even if the Supreme Court decides that the presentence report privilege cannot be so applied, it nevertheless could choose to address the Exemption 5 threshold issue one way or the other. The Julian case thus holds potential implications extending far beyond the narrow confines of the particular privilege which underlies it.
Earlier this Term, on November 10, the Supreme Court handed down its decision in a case arising from a FOIA request, although the actual question presented to the Court did not directly involve an issue of FOIA interpretation.
In Church of Scientology v. IRS, 108 S. Ct. 271 (1987), the Court
broadly construed the term "return information" under an IRS nondisclosure
statute, 26 U.S.C.
Another FOIA case that now appears to be heading for the Supreme Court is Reporters Committee for Freedom of the Press v. Department of Justice, 816 F.2d 730 (D.C. Cir.), modified on denial of panel reh'g, 831 F.2d 1124 (D.C. Cir.), reh'g en banc denied, No. 85-6020 (D.C. Cir. Dec. 4, 1987), where the D.C. Circuit adopted a highly unorthodox approach to the balancing of privacy and public interests under the FOIA -- one in which the public interest to be served by the particular disclosure in question is not considered, and in which significant privacy interests in information ever publicly available anywhere are entitled to virtually no weight.
It is expected that the Solicitor General will ask the Supreme Court to review this unprecedented FOIA privacy-protection approach and that Reporters Committee stands an excellent chance of being the next FOIA case to reach the Supreme Court.
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