UNITED STATES DEPARTMENT OF JUSTICE, ET AL., PETITIONERS V. KENNETH MICHAEL JULIAN AND MARGARET J. WALLACE No. 86-1357 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the Petitioners PARTIES TO THE PROCEEDINGS Petitioners seek review of the single decision of the United States Court of Appeals for the Ninth Circuit in consolidated appeals in two cases arising under the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. III) 552. Those cases were brought in different federal district courts: 1. Respondent Kenneth Michael Julian was the plaintiff in the suit brought in the United States District Court for the District of Arizona. The defendant in that suit was petitioner Department of Justice. 2. Respondent Margaret J. Wallace was the plaintiff in the suit brought in the United States District Court for the Northern District of California. The named defendants in that suit were petitioners United States Parole Commission and Charles Turnbo, the Warden of the Federal Correctional Institution at Pleasanton, California. /*/ TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Statutory provisions, rule, and regulations involved Question presented Statement A. The legal framework governing presentence reports 1. Use and disclosure of the presentence report by the district court 2. Use and disclosure of the presentence report by the Parole Commission and Bureau of Prisons B. The proceedings in these cases Summary of argument Argument: A presentence investigation report is exempt from mandatory release under the Freedom of Information Act I. Introduction II. A presentence report is protected from mandatory disclosure by Exemption 5 of the Freedom of Information Act A. Presentence reports are protected by Exemption 5 from mandatory disclosure to the public B. The subject of a presentence report has no special right to obtain a copy of the report under the FOIA III. The Parole Commission also may withhold copies of respondents' presentence reports from them under Exemption 3 of the FOIA Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 806 F.2d 1411. The orders of the district courts (Pet. App. 16a-22a) are unreported. JURISDICTION The judgment of the court of appeals was entered on December 30, 1986. The petition for a writ of certiorari was filed on February 18, 1987, and was granted on June 15, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS, RULE, AND REGULATIONS INVOLVED Relevant provisions of the Freedom of Information Act, 5 U.S.C. 552(a)(3) and (4)(B), (b)(3) and (5); the Parole Commission and Reorganization Act of 1976, 18 U.S.C. (& Supp. III) 4205(e), 4207, 4208; Rule 32(c) of the Federal Rules of Criminal Procedure; and the Parole Commission regulations governing disclosure of information, 28 C.F.R. 2.55 and 2.56, are reproduced at Pet. App. 35a-47a. QUESTION PRESENTED Whether a presentence investigation report, which was prepared for use by the federal district court in sentencing the defendant and then was transmitted to the Parole Commission for use in determining his parole date, is subject to mandatory disclosure under the Freedom of Information Act, 5 U.S.C. (& Supp. III) 552. STATEMENT In the federal criminal justice system as it now operates, /1/ if a convicted defendant is sentenced to a term of imprisonment, the United States Parole Commission determines when the prisoner will be released on parole. The probation service's presentence report regarding the individual is a principal source of information for the court in deciding what sentence to impose and then for the Parole Commission in deciding when the prisoner should be released from custody. The question in this case is whether the copy of the presentence report that is transmitted by the probation officer to the Parole Commission for its use in making parole determinations about the prisoner is subject to mandatory release by the Parole Commission under the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. III) 552. In these consolidated cases, the requesters seeking to obtain copies of the particular presentence reports at issue are the subjects of those reports. Congress, this Court and the Parole Commission have prescribed specific procedures that govern when, how, and to what extent a defendant or prisoner may be granted access to his presentence report by the district court and the Parole Commission. Before stating the facts of these cases, we describe the applicable procedures. A. THE LEGAL FRAMEWORK GOVERNING PRESENTENCE REPORTS 1. Use And Disclosure Of The Presentence Report By The District Court Rule 32(c)(1) of the Federal Rules of Criminal Procedure provides that, prior to the imposition of sentence in a case in which the defendant has been found or has pleaded guilty, the probation service of the court must submit to the court a report of a presentence investigation into the defendant's background and the circumstances of the offense. /2/ The presentence report must contain information concerning the prior criminal record of the defendant; the circumstances of the offense and the defendant's behavior; financial, social, psychological, physical or other harm to the victim; and any other information that may aid the court in sentencing, including the restitution needs of the victim. Fed. R. Crim. P. 32(c)(2). /3/ Rule 32(c)(3)(A) provides that, at a reasonable time prior to sentencing, the district court shall permit the defendant and his counsel to read the presentence report, exclusive of any recommendation as to sentencing. The court then must afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to alleged inaccuracies (ibid.). However, the defendant and his counsel do not have a right to read the report to the extent that it contains: (i) diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation; (ii) sources of information obtained upon a promise of confidentiality; and (iii) any other information that, if disclosed, might result in harm to the defendant or other persons (ibid.). If the court intends to rely at sentencing on any factual material falling in one of these three exceptions, it must furnish the defendant with a written or oral sumnmary of the material and afford the defendant and his counsel an opportunity to comment upon it. Fed. R. Crim. P. 32(c)(3)(B). Any material that may be disclosed to the defendant and his counsel must also be disclosed to the attorney for the government. Fed. R. Crim. P. 32(c)(3)(C). If the testimony or comments introduced by the defendant or his counsel allege any factual inaccuracy in the report or summary, the court must either make a finding regarding the allegation or determine that no such finding is necessary because the controverted matter will not be considered in imposing sentence. Rule 32(c)(3)(D) provides that "(a) written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission." Finally, Rule 32(c)(3)(E) provides that any copies of the presentence report that are made available to the defendant, 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." Thus, although the defendant has a right, prior to sentencing, to read his presentence report (except for the recommendation as to sentencing and portions that may be summarized under Rule 32(c)(3)(A)), the defendant has no right to retain a copy of the report unless the court affirmatively authorizes him to do so. In addition, the courts have uniformly held that a presentence report is privileged from disclosure by the district court to a third party, at least in the absence of a showing of particularized need. See pages 21-22, infra. 2. Use And Disclosure Of The Presentence Report By The Parole Commission And Bureau Of Prisons a. If the defendant is sentenced to a term of imprisosnment, the date on which he will be released on parole is determined by the Parole Commission, an agency in the Department of Justice that was established by the Parole Commission and Reorganization Act of 1976, 18 U.S.C. (& Supp. III) 4201 et seq. (Parole Act). See 18 U.S.C. 4202. /4/ In making a parole decision, the Commission is required to consider the presentence report (18 U.S.C. 4207(3)), as well as the prisoner's criminal record, the recommendation of the sentencing court, reports submitted by the correctional institution, and the results of various examinations. 18 U.S.C. (& Supp. III) 4207. To ensure that the Parole Commission has the requisite information, it is "the duty of the various probation officers" to furnish to the Commission, upon request, any available information about the prisoner. 18 U.S.C. 4205(e). The probation officer typically discharges this duty by furnishing a copy of the presentence report about the prisoner. The presentence report is also utilized by the Bureau of Prisons in determining the proper classification of the prisoner (see 28 C.F.R. 524.10, 524.12(e)), appropriate treatment programs, and the prisoner's eligibility for furloughs and privileges. See Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv. L. Rev. 1615, 1679 (1980) (hereinafter Fennell & Hall). Although Congress has not by law required the probation officers to furnish the presentence report to the Bureau of Prisons as they must to the Parole Commission, the probation officers have done so for many years and Fed. R. Crim. P. 32(c)(3)(D) now expressly endorses that practice. See Fennell & Hall, 93 Harv. L. Rev. at 1679; 97 F.R.D. 245, 306, 308 (1983) (advisory committee note to 1983 Amendments to Rule 32(c)). The Bureau of Prisons, like the Parole Commission, is an agency of the Department of Justice (18 U.S.C. 4041, 4042), and its use of the presentence report is therefore closely coordinated with that of the Commission. For example, although 18 U.S.C. 4205(e) requires the probation officer to furnish a copy of the presentence report to the Parole Commission, in practice the probation officer furnishes the report in the first instance to the Bureau of Prisons, which has a more immediate need for it in determining the appropriate security level for the prisoner. See Schmolesky & Thorson, The Importance of the Presentence Investigation Report After Sentencing, 18 Crim. L. Bull. 406, 408-409 (1982). b. The Parole Act provides that at least 30 days prior to a scheduled parole hearing, the prisoner shall be provided with "reasonable access to a report or other document to be used by the Commission in making its determination." 18 U.S.C. 4208(b). Implementing Parole Commission regulations provide that because the Commission's file consists mainly of documents furnished to it by the Bureau of Prisons, the prisoner ordinarily can be given access to the relevant documents by granting him access to documents in the institutional file that the Bureau of Prisons maintains on the prisoner. 28 C.F.R. 2.55(a)(1). Under settled practice pursuant to 18 U.S.C. 4208(b), the prisoner may read the copy of his presentence report that is obtained in the institutional file, but may not obtain a copy of it. See also 28 C.F.R. 2.55(a)(3). This procedure directly parallels the right under Fed. R. Crim. P. 32(c) to read but not to receive a copy of the report prior to sentencing. Moreover, under 18 U.S.C. 4208(b), a prisoner may be denied access to any document, including his presentence report, to the extent it contains information that falls within one of three categories that also directly parallel the three exceptions in Fed. R. Crim. P. 32(c)(3)(A) -- information that could disrupt the prisoner's institutional rehabilitation program if it were disclosed to him, or that might reveal a confidential source or result in harm to any person. See page 4, supra. If the presentence report or other document contains such information, the Parole Commission or the originating agency must furnish the prisoner with a summary of the information withheld, just as Fed. R. Crim. P. 32(c)(3)(B) requires the court to do at the time of sentencing. 18 U.S.C. 4208(c); 28 C.F.R. 2.55(c) and (d). As contemplated by 18 U.S.C. 4208(c), the usual practice is for the probation officer to identify for the Parole Commission any portions of the presentence report that were summarized for the defendant at the time of sentencing and to furnish those summaries to the Commission for its use when the prisoner is given access to the report prior to his parole hearing. See Probation Division, Administrative Office of the United States Courts, The Presentence Investigation Report 2 (1984). c. Aside from these provisions implementing the prisoner's limited statutory right of "reasonable access" to his presentence report and other relevant materials in connection with his preparation for a parole hearing, the Parole Act makes no provision for release or disclosure of the presentence report to the prisoner or anyone else. In addition, pursuant to 5 U.S.C. 552a(j)(2), the Parole Commission's system of records that contains the presentence report and other material pertaining to the prisoner has long been exempted by regulation from the provisions of the Privacy Act (5 U.S.C. 552a(d)) that generally grant an individual a right to review and receive a copy of records that an agency maintains about him. 28 C.F.R. 16.85(a)(2); see 40 Fed. Reg. 38755, 39408, 39412 (1975); 41 Fed. Reg. 12640, 12643 (1976). /5/ Notwithstanding this general exemption, however, the Commission has by regulation provided a mechanism by which a prisoner or parolee may receive a copy of certain documents pertaining to him, even though he does not have a scheduled parole hearing that would trigger his statutory right of "reasonable access" to those materials. See 28 C.F.R. 2.56. However, the regulation explicitly states that "(a)ny request for copies of court documents (including the presentence investigation report) must be directed to the appropriate court." 28 C.F.R. 2.56(b). By operation of this regulation, the Parole Commission defers -- as a general matter, not merely at the time the prisoner is granted access to his file prior to a parole hearing -- to the sentencing court's determination with respect to whether the prisoner will be permitted to obtain and keep a copy of his presentence report. B. THE PROCEEDINGS IN THESE CASES 1. a. Respondent Kenneth Michael Julian is an inmate at the Federal Correctional Institution in Safford, Arizona. Julian is serving a ten-year term of imprisonment following his conviction in the United States District Court for the Eastern District of California for the unlawful manufacture of silencers and illegal weapons and the manufacture of methamphetamines. Pursuant to Fed. R. Crim. P. 32(c)(1), a presentence report was prepared on Julian by the probation officer prior to sentencing. After he began serving his sentence, Julian requested a copy of his presentence report from the Parole Commission on October 17, 1984. When that request was denied, Julian brought an action in the United States District Court for the District of Arizona on January 30, 1985, seeking to compel the release of a copy of his presentence report under the FOIA. In a brief order dated August 5, 1985, the district court granted Julian's motion for summary judgment (Pet. App. 16a). b. Respondent Margaret J. Wallace was convicted in the United States District Court for the Central District of California on 15 counts of forging United States Treasury checks, in violation of 18 U.S.C. 495. She was sentenced to a term of three years' imprisonment. A presentence report was prepared by the probation officer prior to her sentencing. On November 1, 1984, while serving her sentence in the Federal Correctional Institution at Pleasanton, California, /6/ Wallace filed a request with the Parole Commission for all of the Commission's records pertaining to her. On March 25, 1985, the Commission furnished Wallace with copies of all documents in the Commission's files, except for a copy of her presentence report (and certain other records that were already available to her in her institutional file at the Pleasanton FCI). Wallace then filed suit in the United States District Court for the Northern District of California seeking to compel release of an actual copy of her presentence report. By order dated September 6, 1985, the district court ordered the Parole Commission to release a copy of the report to her under the FOIA (Pet. App. 17a-22a). 2. The court of appeals consolidated the government's appeals in the two cases and affirmed the judgment in each (Pet. App. 1a-15a). The court held that a prisoner has an absolute right under the FOIA to obtain a copy of the presentence report (except summarized portions) from the Parole Commission, even though Fed. R. Crim. P. 32(c)(3)(E) and the Parole Commission's parallel procedures that implement the "reasonable access" requirement of the Parole Act (18 U.S.C. 4208(b)) only confer a right to read the report, not to obtain and keep a copy of it. a. The court of appeals rejected the government's submission that the Parole Commission may withhold a copy of the presentence report from the prisoner under FOIA Exemption 5, which exempts "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)). Pet. App. 9a-14a. The court of appeals recognized that Exemption 5 protects those documents that are "'normally privileged in the civil discovery context'" (Pet. App. 10a, quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). And it recognized as well that the courts have uniformly held that presentence reports are normally privileged from disclosure to third parties and will be released only upon a particularized showing that the "'ends of justice'" so require (Pet. App. 11a-12a & n.6, quoting United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976)). Butl the court did not believe that those judicial decisions justified withholding a copy of the report from the person who is the subject of the report, since he is permitted by Rule 32(c)(3)(A) and 18 U.S.C. 4208(b) to read the report (although not to keep a copy of it) prior to his sentencing and parole hearing (Pet. App. 4a-5a, 12a). In so holding, the court of appeals acknowledged (id. at 10a) that its decision conflicted with Durns v. Bureau of Prisons, 804 F.2d 701 (1986), petition for cert. pending, No. 86-6550, in which the D.C. Circuit held that presentence reports are protected by Exemption 5 because "(a)n impressive body of doctrine recognizes the(ir) privileged nature" (804 F.2d at 704). The court below reached an "opposite conclusion" because it did not find an "established privilege" under statutory or common law in the specific context of disclosure to the subject of the presentence report (Pet. App. 10a-11a & n.5). b. The court of appeals also held that the Parole Commission's copy of a presentence report is not protected by Exemption 3, which provides that the FOIA does not apply to matters that are "specifically exempted from disclosure by statute" if the statute, inter alia, "refers to particular types of matters to be withheld." 5 U.S.C. 552(b)(3)(B). In its Exemption 3 analysis, the court focused on the information contained in the report, rather than an asserted right of a prisoner to obtain an actual copy of the report. Viewing the matter from the former perspective, the court reasoned that Rule 32(c) and 18 U.S.C. 4208 do not exempt all information in a presentence report from disclosure to the defendant, but rather permit the sentencing court and Parole Commission to withhold only such information as falls within one of the three exceptions in Rule 32(c)(3)(A) or 18 U.S.C. 4208(c) -- i.e., diagnostic opinions that might disrupt the program of rehabilitation, sources of information obtained upon a promise of confidentiality, or other information that might result in harm to the subject of the report or to third parties. Pet. App. 7a-9a. /7/ SUMMARY OF ARGUMENT Presentence reports contain highly confidential information whose "'public availability * * * would likely inhibit the flow of information to the sentencing judge'" (Durns v. Bureau of Prisons, 804 F.2d at 705 (citation omitted)). Accordingly, they are generally kept in strict confidence and are not, for example, available to third parties in discovery except upon a showing that disclosure is "'required to meet the ends of justice'" (ibid. (citation omitted)). Fed. R. Crim. P. 32(c) and 18 U.S.C. 4208(b) give the defendant who is the subject of a presentence report limited access to the report on specified occasions. Prior to sentencing and again prior to parole consideration, the defendant has the right to read the report (except for portions containing the sentence recommendation, certain diagnostic opinions, certain disclosures of sources of information, or any information whose disclosure might harm any person including the defendant). But Rule 32(c) provides expressly and 18 U.S.C. 4208(b) provides implicitly that the defendant may not ordinarily keep a copy of the report. This carefully considered "sophisticated compromise" between confidentiality and disclosure accords with a widespread judgment that "permitting defendants to keep copies of their presentence reports would impede the ability of U.S. Probation Officers to gather information and protect their sources" (Pet. App. 30a). The court of appeals nevertheless concluded that a defendant may obtain a copy of his presentence report from the Parole Commission under the FOIA. It ruled that neither Exemption 5, which exempts "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," nor Exemption 3, which exempts matters "specifically exempted from disclosure by statute * * * provided that such statute * * * refers to particular types of matters to be withheld," exempts a presentence report from disclosure to the subject of the report. These rulings reflect fundamental misunderstanding of the operation of FOIA. With respect to Exemption 5, the court of appeals recognized that this exemption protects documents that are "'normally privileged in the civil discovery context'" (Pet. App. 10a (citation omitted)) and that presentence reports are normally privileged from disclosure to third parties (see id. at 11a-12a), but it held that since the defendant has the right under Rule 32(c) to read the report prior to sentencing, Exemption 5 does not apply "when a FOIA request is made by the subject of the report" (Pet. App. 12a). There are two things wrong with that holding. First, the court erred in treating the subject of the report as inherently different from other members of the public for FOIA purposes. Neither Exemption 5 nor the FOIA generally allows any such distinction between the rights of the particular requester and the rights of the general public. It is well established that the test under Exemption 5 is whether a document would be routinely available to a private party in discovery upon a showing of relevance, not whether the particular requester has a special interest in or need for the document. See United States v. Weber Aircraft Corp., 465 U.S. 792, 802 n.20 (1984); FTC v. Grolier, Inc., 462 U.S. 19, 27-28 (1983). The FOIA makes information available -- or unavailable -- to the public: it is not designed to provide a special right of access to the subjects of government documents, and it does not permit documents to be made available to one requester that are denied to others. Second, Rule 32(c) and 18 U.S.C. 4208(b) do not give the subject of a presentence report a routine right to a copy of the report. To the contrary, these provisions, together with the Parole Commission's regulations under the latter section, all of which are products of a lengthy history of deliberation about how to balance the needs of the defendant against the needs of confidentiality, routinely deny the defendant a copy of his presentence report. The court of appeals not only misread these provisions as providing the sort of availability of the documents that would defeat Exemption 5, it interpreted the FOIA to obliterate the sophisticated compromises reflected in Rule 32(c) and 18 U.S.C. 4208(b). With respect to Exemption 3, it is clear that Rule 32(c)(3)(E), which requires the defendant, his counsel, and the government attorney to return their copies of the presentence report to the court after sentencing, is a "statute" within the meaning of that Exemption, that it refers with particularity to copies of presentence reports, and that it specifically authorizes them to be withheld. Although the Rule does not specifically address the public availability of the copy of the presentence report that is delivered to the Parole Commission so that it may consider the report as it is required to do by 18 U.S.C. (& Supp. III) 4207, there is plainly the requisite statutory authority to withhold that copy as well. First, 18 U.S.C. 4208(b), which provides that a prisoner shall have "reasonable access" to his presentence report in connection with his parole determination, is properly read to incorporate the rule that the prisoner ordinarily may not obtain a copy of the report. Second, in any event, if a statute (or in this case, a rule legislated by Congress), provides for the withholding of a particular document, as Rule 32(c)(3)(E) does with respect to copies of presentence reports, Exemption 3 plainly protects that document in the hands of any government agency making proper and confidential use of it. ARGUMENT A PRESENTENCE INVESTIGATION REPORT IS EXEMPT FROM MANDATORY RELEASE UNDER THE FREEDOM OF INFORMATION ACT I. Introduction The broad mandate of the Freedom of Information Act is "to provide for open disclosure of public information." Baldrige v. Shapiro, 455 U.S. 345, 352 (1982) (footnote omitted). "The Act expressly recognizes, however, that public disclosure is not always in the public interest and consequently provides that agency records may be withheld from disclosure under any one of the nine exemptions defined in 5 U.S.C. Section 552(b)." Ibid.; see also CIA v. Sims, 471 U.S. 159, 166-167 (1985). The material contained in a presentence investigation report clearly is not "public information" subject to "open disclosure." Presentence reports have always been regarded as highly confidential documents, and with good reason. A presentence report contains detailed information about "every aspect of a defendant's life" (Williams v. New York, 337 U.S. 241, 250 (1949) (footnote omitted)), including the prosecution's and the defense's versions of the circumstances of the present offense; the defendant's past juvenile and adult criminal record; his family background, personality formation, and current relationships with family members, friends, and associates; the defendant's marital relationship; his physical, mental and emotional health; his education and employment history; his financial condition; and the probation officer's assessment. Probation Division, The Presentence Investigation Report, supra, at 17. The report also necessarily contains information obtained from or pertaining to third parties, including statements of witnesses to and victims of the offense; a "victim impact statement" that describes the financial, social, psychological and physical harm to the victim, information about co-defendants; and the broad range of personal opinions and information concerning or obtained from, family members, friends and associates (ibid.). It is obviously critical to the success of the probation officer's goal of obtaining the most complete and accurate information that the confidentiality of the report be maintained to the maximum extent possible. On the other hand, the subject of the report has a legitimate interest in having access to information in the report on those particular occasions when the report will be relied upon in making an adjudicatory determination about the individual, so that he can have an opportunity to point out and rebut any inaccuracies in the report. The legal rules governing access to and dissemination of presentence reports represent a "sophisticated compromise" between these competing interests. Fennell & Hall, 93 Harv. L. Rev. at 1634. The reports are tightly held by the probation officer and the Parole Commission and are protected against disclosure to anyone -- the defendant, the prosecution, and the world at large -- except where there is a demonstrated need for access on a specific occasion. This tight control serves to ensure that the copies of the report are not carelessly handled and do not fall into unauthorized hands. That extra measure of protection in turn provides possible sources of information, other individuals mentioned in the report, and the defendant himself "with an assurance of confidentiality that is as absolute as possible." CIA v. Sims, 471 U.S. 159, 175 (1985); Baldrige v. Shapiro, 455 U.S. at 361. In accordance with these imperatives of confidentiality, the courts have uniformly held that a presentence report is privileged from disclosure to a third party, at least in the absence of a showing of particularized need akin to that required for a third party to obtain access to grand jury material protected by Fed. R. Crim. P. 6(e). See pages 21-22, infra; compare United States v. Sells Engineering, Inc., 463 U.S. 418, 442-445 (1983); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 221-224 (1979). Moreover, under long-established procedures, even the subject of the report has no right to obtain and keep a copy of the report. He is permitted only to read the report prior to sentencing and prior to his parole hearing, and on each occasion he must return it unles the court affirmatively allows him to keep a copy. By the same token, although the attorney for the government is also permitted to read the report prior to sentencing, he too must return his copy to the probation officer unless the court affirmatively allows him to keep it. Fed. R. Crim. P. 32(c)(3)(C) and (E). This reciprocal obligation on the part of the attorney for the government guards against subsequent use of the report for prosecutorial or investigative purposes, in the absence of a special showing of need. Routine use of the report for such purposes might chill the candor and openness of the defendant, who ordinarily is the probation officer's primary source of information when preparing the report. See Probation Division, The Presentence Investigation Report, supra, at 3. Against this background, it is manifest that presentence reports are not among the categories of "public information" that Congress intended to be subject to mandatory disclosure under the FOIA. Baldrige v. Shapiro, 455 U.S. at 352. To the contrary, this is a classic example of a situation for which, because Congress recognized that "public disclosure is not always in the public interest" (ibid.), it fashioned the exemptions from mandatory disclosure under the FOIA. Indeed, in this case, the copies of the presentence reports that respondents seek are protected against mandatory release under the FOIA by two separate provisions, Exemption 3 and Exemption 5. We discuss the latter exemption first. II. A Presentence Report is Protected from Mandatory Disclosure by Exemption 5 of the Freedom of Information Act A. Presentence reports are protected by Exemption 5 from mandatory disclosure to the public Both the plain language of Exemption 5 and settled precedent establish that presentence reports are not subject to mandatory release or disclosure under the FOIA. Exemption 5 permits an agency to withhold "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). There is no dispute in this case that the copy of the presentence report in the custody of the Parole Commission is an "inter-agency or intra-agency memorandum" for purposes of Exemption 5. It is equally clear that a presentence report "would not be available by law to a party other than an agency in litigation with the agency." 1. This Court has repeatedly held that "Exemption 5 incorporates 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). Accord, United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); FTC v. Grolier, Inc., 462 U.S. 19, 26-27 (193). In this case, a well-recognized privilege squarely covers the documents respondents seek. As the District of Columbia Circuit recently observed, "(a)n impressive body of doctrine recognizes the privileged nature of presentence reports" (Durns v. Bureau of Prisons, 804 F.2d at 704). The courts have uniformly recognized that a presentence report is privileged from disclosure to a third party, at least in the absence of a showing that disclosure is "'required to meet (the) ends of justice'" (id. at 705, quoting Hancock Bros. v. Jones, 293 F. Supp. 1229, 1233 (N.D. Cal. 1968)). See United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985), cert. denied, No. 85-1016 (Feb. 24, 1986); United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1173-1176 (2d Cir. 1983); United States v. Martinello, 556 F.2d 1215-1216 (5th Cir. 1977); United States v. Cyphers, 553 F.2d 1064, 1069 (7th Cir.), cert. denied, 434 U.S. 843 (1977); United States v. Dingle, 546 F.2d 1378, 1380-1381 (10th Cir. 1976); United States v. Figurski, 545 F.2d 389, 391-392 (4th Cir. 1976); United States v. Walker, 491 F.2d 236, 238 (9th Cir.), cert. denied, 416 U.S. 990 (1974); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1973); United States v. Evans, 454 F.2d 813, 830 (8th Cir.), cert. denied, 406 U.S. 969 (1972); United States v. Mayse, 467 F. Supp. 1339 (E.D. Tenn. 1979); United States v. Krause, 78 F.R.D. 203 (E.D. Wis. 1978). /8/ The confidential and privileged nature of presentence reports under these decisions "reflects 'the prevailing judicial view that the public availability of presentence reports would likely inhibit the flow of information to the sentencing judge.'" Durns v. Bureau of Prisons, 804 F.2d at 705 (quoting United States v. Charmer Industries, Inc., 711 F.2d at 1173). See also Williams v. New York, 337 U.S. at 247-250; Fennell & Hall, 93 Harv. L. Rev. at 1684-1685. 2. To date the decisions recognizing a privilege for presentence reports have involved efforts by third parties to obtain a presentence report from the sentencing court, not from the Parole Commission. But the ability of the probation officers to obtain complete and accurate information would be seriously undermined if presentence reports were publicly available from any source. Accordingly, when Congress directed probation officers to furnish presentence reports to the Parole Commission (18 U.S.C. 4205(e)), it surely intended that the privilege attaching to the report while it remains a court document would continue to attach after its transmittal to the Parole Commission. Durns v. Bureau of Prisons, 804 F.2d at 705. That is especially so in view of Congress's recognition when it enacted the Parole Act of 1976 that parole operates essentially as "an extension of the sentencing process": the sentences of nearly all offenders include minimum and maximum terms that are set by the court within a range of discretion provided by statute, and then "(t)he final determination of precisely how much time an offender must serve is made by the parole authority." S. Rep. 94-369, 94th Cong., 1st Sess. 15-16 (1975); see also H.R. Conf. Rep. 94-838, 94th Cong., 2d Sess. 19 (1976); United States v. Addonizio, 442 U.S. 178, 188-190 (1979). The conclusion that Congress intended the privileged status of presentence reports to be identical in the two settings is also demonstrated by the fact that, as we explain below (see pages 37-38, infra), Congress deliberately patterned the provisions governing the prisoner's statutory right of "access" to his presentence report and other documents used by the Parole Commission after the analogous provisions of Fed. R. Crim. P. 32(c) that govern a defendant's right of access to the presentence report when it is under the control of the court. /9/ The legislative history of the Parole Act further supports the conclusion that Congress did not intend presentence reports to be available to the public from the Parole Commission. During its floor consideration of the bill, the House of Representatives deleted a provision that would have exempted the Parole Commission from a then-recently-enacted provision of the FOIA (now embodied in 5 U.S.C. 552(a)(5)) that requires multi-member agencies to make available for public inspection a record of the votes of their members. 121 Cong. Rec. 15715 (1975). Representative Danielson stated that he would have no objection to the amendment on the understanding that "it would not make public the record examined by the Parole Board," and the House then accepted the amendment (ibid.). Respondents concede (Resp. to Cert. Pet. 2) that the presentence report is the primary source of information used in calculating the inmate's parole guidelines score. Representative Danielson's understanding that the "record" of a parole proceeding would not be "made public" therefore necessarily included the presentence report. /10/ 3. Because the copy of a presentence report in the possession of the Parole Commission would be privileged from disclosure in civil discovery, it is protected by Exemption 5 from mandatory disclosure under the FOIA. That protection is not undermined by the fact that some courts have indicated that a litigant in a given case might be able to overcome a claim of privilege by making a sufficiently strong individualized showing that the ends of justice require disclosure of a particular presentence report. Durns v. Bureau of Prisons, 804 F.2d at 705; United States v. Charmer Industries, Inc., 711 F.2d at 1173; United States v. Figurski, 545 F.2d at 391-392; Hancock Bros. v. Jones, 293 F. Supp. at 1233. The legislative history of Exemption 5 makes clear that its purpose 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." H.R. Rep. 1497, 89th Cong., 2d Sess. 10 (1966) (emphasis added). "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." FTC v. Grolier, Inc., 462 U.S. at 26 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. at 148-149 & n.16); United States v. Weber Aircraft Corp., 465 U.S. at 799. Even if a particular litigant might in a given case be able to obtain a copy of a presentence report upon a showing of special need, presentence reports plainly are not routinely or normally available in civil discovery on the basis of nothing more than a showing of relevance. The reports therefore are protected by Exemption 5. B. The subject of a presentence report has no special right to obtain a copy of the report under the FOIA The court of appeals did not dispute the government's contention, based on the decisions and principles discussed above, that presentence reports are ordinarily privileged from discovery. See Pet. App. 11a-12a. However, the court held that those decisions "do not create a privilege which justifies withholding presentence reports when a FOIA request is made by the subject of the report" (id. at 12a). This holding fundamentally misconceives the operation of Exemption 5 and of the FOIA generally. FOIA makes documents available -- or unavailable -- to the public at large; it does not require an agency to "justif(y)" withholding from a particular person a document that concededly is not available to the public. And, in any event, there is no public policy that gives the "subject of the report" a routine right to obtain a copy; to the contrary when Fed. R. Crim. P. 32(c) was amended in 1975, this Court and Congress specifically considered the question of withholding the presentence report from the subject of the report and concluded that even he should not be given a right to obtain a copy of it. 1. The application of Exemption 5 does not depend on whether discovery would be available to the particular requester in civil litigation, but on whether it would be routinely available to an ordinary litigant. "That a particular individual with a special interest in or need for certain documents could obtain discovery of them does not mean that they are normally available to private parties on a showing of relevance." Durns v. Bureau of Prisons, 804 F.2d at 706 (emphasis added). See United States v. Weber Aircraft Corp., 465 U.S. at 802 n.20; FTC v. Grolier, Inc., 462 U.S. at 27-28. For this reason alone, the court below erred in ruling that even though there is a privilege barring disclosure of a presentence report to a member of the general public (see Pet. App. 11a-12a), Exemption 5 of the FOIA does not permit the Parole Commission to withhold a copy from the subject of the report. /11/ The principle that an asserted special status or interest of the requester does not afford him a unique right of access to documents under the FOIA is not confined to Exemption 5. It is a fundamental principle of the entire FOIA. The provision of the FOIA that prescribes the basic duty of disclosure states that each agency "shall make available to the public" the categories of information to which it applies (5 U.S.C. (& Supp. III) 552(a) (emphasis added)). See EPA v. Mink, 410 U.S. 73, 79, 92 (1973). Similarly, 5 U.S.C. 552(a)(3) requires that if the records have not already been "publish(ed)" in the Federal Register or made available for "public inspection" pursuant to 5 U.S.C. 552(a)(1) and (2), the agency "shall make the records promptly available to any person" upon request (emphasis added). These provisions give expression to the central premise that the FOIA "is fundamentally designed to inform the public about agency action and not to benefit private litigants." NLRB v. Sears, Roebuck & Co., 421 U.S. at 143 n.10 (emphasis added). In fact, as this Court recognized in EPA v. Mink, the FOIA was enacted in 1966 in large part for the purpose of eliminating the language in the former Section 3(c) of the Administrative Procedure Act (5 U.S.C. (1964 ed.) 1002(c)) under which information was available only to "persons properly and directly concerned" with it. See 410 U.S. at 79; H.R. Rep. 1497, 89th Cong., 2d Sess. 1, 5-6 (1966); S. Rep. 813, 89th Cong., 1st Sess. 5-6 (1965). The notion that respondents have a special right to obtain copies of their presentence reports under the FOIA because they are directly concerned with the contents of those reports is thus fundamentally at odds with the manner in which Congress structured the FOIA. /12/ The relevant question under the FOIA is always whether the document must be made available to any and all members of the public upon request. If one of the nine exemptions applies, the document may be withheld from any and all members of the public, irrespective of an asserted special status or interest of a particular member of the public. Sears, Roebuck & Co., 421 U.S. at 149 n.16; Kurzon v. HHS, 649 F.2d 65, 68 n.2 (1st Cir. 1981); Robles v. EPA, 484 F.2d 843, 847 (4th Cir. 1973); K. Davis, Administrative Law Treatise Section 5.6 (1978). Here, Exemption 5 plainly applies to the presentence reports at issue, and they may therefore be withheld under the FOIA from all members of the public, including respondents. The converse is also true; if Exemption 5 does not entitle the Parole Commission to withhold copies of presentence reports from the subjects of those reports, it does not entitle the agency to deny copies of such reports to any member of the public. 2. The court of appeals' premise -- that the subject of the presentence report would have a routine right to obtain a copy from the Parole Commission -- was also erroneous. The court disregarded the deliberate judgment of both this Court and Congress, when Fed. R. Crim. P. 32(c) was amended in 1975, on the precise question of the manner and extent to which a presentence report should be made available to the subject of the report. That judgment followed almost 30 years of controversy over whether the defendant should even be afforded a right under the Federal Rules of Criminal Procedure to read the presentence report prior to his sentencing. The approach the Court and Congress adopted in 1975 manifests a clear intention to proceed cautiously and incrementally in this area by giving the defendant limited access to the contents of the report while at the same time retaining stringent controls over dissemination of copies. a. The question of the availability of the presentence report to the defendant at the time of sentencing was thoroughly considered when Rule 32 was first adopted more than 40 years ago. In 1944, the Advisory Committee on Criminal Rules submitted to this Court a draft proposal that would have made the presentence report available to the defense and others under such conditions as the court might impose. /13/ However, judges and probation officers opposed this proposal on the grounds, inter alia, that disclosure would inhibit sources of information from cooperating with the probation officers who prepare the reports and would interfere with the rehabilitation of the defendant. Presumably because of this opposition, the disclosure provision was deleted from the Rules adopted by this Court in 1946. See Fennell & Hall, 93 Harv. L. Rev. at 1632; Note, The Presentence Report: An Empirical Study of Its Use in the Federal Criminal Process, 58 Geo. L.J. 451, 470-471 (1970) (hereinafter The Presentence Report). The effect of this deletion was to leave to the district court's discretion the decision whether, to what extent, and how the contents of the report should be disclosed to the defense. In the ensuing years, any such disclosure was typically made to defense counsel, not to the defendant personally. United States v. Woody, 567 F.2d 1353, 1358-1359 & n.10 (5th Cir.), cert. dlenied, 436 U.S. 908 (1978); The Presentence Report, 58 Geo. L.J. at 471; Junior Bar Section, D.C. Bar Ass'n, Discovery in Federal Criminal Cases, 33 F.R.D. 101, 122-128 (1963). /14/ b. Over the next 20 years, considerable attention was given in the literature to the wisdom of disclosing information in a presentence report to the defendant at the time of sentencing, and there was again "heated controversy" on that subject prior to the adoption of the 1966 Amendments to Rule 32(c). See advisory committee's note, 39 F.R.D. 168, 193-194 (1966), and material cited. /15/ A preliminary draft of an amendment to Rule 32 that was published by the Advisory Committee in 1964 would have required the court, upon request, to permit defense counsel to "read" the report (excluding material identifying sources of confidential information) prior to sentencing and to afford counsel an opportunity to comment on the report. /16/ However, there was "overwhelming opposition" to this proposal among probation officers and federal judges (Fennell & Hall, 93 Harv. L. Rev. at 1633 & n.98; The Presentence Report, 58 Geo. L.J. at 471), /17/ and it was not included in the Rules as finally adopted. Instead, Rule 32(c)(2) was amended to provide that the court "may disclose" some or all of the material contained in the report to the defendant or his counsel prior to sentencing. 383 U.S. 1087, 1108 (1966). /18/ This rule merely codified prior practice, since the district courts already had discretion to disclose the contents of the report. United States v. Woody, 567 F.2d at 1358-1359. c. It was not until 1975 that the Rules were amended to require that the contents of the presentence report be disclosed to the defense in some manner prior to sentencing. In that year, Rule 32(c)(3)(A) was added to provide that the court, upon request, must permit the defendant or his counsel "to read the report of the presentence investigation," exclusive of any recommendation as to sentencing and not to the extent that it would reveal any information that might disrupt a program of rehabilitation, disclose a confidential informant, or result in harm to any person. As originally adopted and transmitted to Congress by this Court in 1974, Rule 32(c)(3)(D) provided that any copies of the presentence report made available to the defendant, his counsel, and the attorney for the government prior to sentencing "shall be returned to the probation officer immediately following the imposition of sentence," and that copies of the report "shall not be made" by any of those persons. H.R. Doc. 93-292, 93d Cong., 2d Sess. 20-21 (1974). The advisory committee note explained that this restriction was intended "to insure that (presentence reports) do not become available to unauthorized persons" (id. at 71; 62 F.R.D. 271, 325 (1974)). Congress, however, enacted into law a different version of Rule 32(c)(3)(D), which did not entirely foreclose the possibility that the defendant or the attorney for the government might be permitted to keep a copy of the presentence report in a particular case. Specifically, as enacted by Congress, Rule 32(c)(3)(D) provided that copies of the presentence report made available to the defendants, 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." Pub. L. No. 94-64, Section 3(34), 89 Stat. 376. The House Judiciary Committee proposed this amendment because it believed that "(t)here may be situations when it would be appropriate for either or both of the parites to retain the presentence report" and that the court should have the "discretion" to permit them to do so. H.R. Rep. 94-247, 94th Cong., 1st Sess. 18 (1975). But Congress, like this Court, expressly declined to confer on the subject of the report a right to keep a copy of the report. Moreover, in 1983, this Court revisited Rule 32 but declined to alter its "sophisticated compromise" between confidentiality and disclosure (Fennell & Hall, 93 Harv. L. Rev. at 1634). Instead, although the Court revised Rule 32 in other respects, it readopted the former Rule (32)(c)(3)(D) and redesignated it as the current Rule 32(c)(3)(E). See 461 U.S. 1121, 1125-1126 (1983). /19/ Congress also extensively revised Rule 32 when it enacted the Comprehensive Crime Control Act of 1984, but Congress likewise declined to alter the provision in Rule 32(c)(3)(E) that denies the defendant a right to obtain and keep his own copy of the presentence report. /20/ d. Nothing in the Parole Act suggests that Congress intended, sub silentio, to confer on a prisoner the right to obtain from the Parole Commission a copy of the presentence report that was denied to him by the sentencing court under Rule 32(c)(3)(E). To the contrary, Congress included in the Parole Act a framework for limited access to presentence reports and other materials used by the Parole Commission that is directly parallel to that in Fed. R. Crim. P. 32(c). It would have been surprising, in fact, if Congress had followed any other course, because Congress considered the Parole Act and the 1975 Amendments to Rule 32(c) at the same time, and it recognized that the Parole Commission's decision regarding release of the prisoner is essentially a continuation of the sentencing process. See page 23, supra. This parallel structure of Fed. R. Crim. P. 32(c) and 18 U.S.C. 4208 confirms that Congress intended the Parole Commission to exercise the same sort of control over the prisoner's access to his presentence report that a district court exercises under Rule 32(c). The Parole Act requires that the prisoner be granted "reasonable access" to the presentence report and other documents to be relied upon by the Commission at a parole hearing. 18 U.S.C. 4208(b). Although this provision requires that the prisoner be permitted to read the report, as he would already have been permitted to do prior to sentencing under Rule 32(c), Section 4208(b) does not confer a right to obtain a copy of the report. Compare 5 U.S.C. 552a(d). From the outset, the Commission has implemented the "reasonable access" requirement by allowing the prisoner to read the presentence report but not to receive a copy of it (see page 8, supra; 28 C.F.R. 2.55), and since 1979, the Commission's regulations have expressly provided that a prisoner must obtain a copy of his presentence report from the sentencing court. 28 C.F.R. 2.56(b), as added by 44 Fed. Reg. 26552 (1979). The Parole Commission thus defers to the judgment of the sentencing court as to whether the prisoner will receive a copy of the report. The Parole Commission's implementation of the "reasonable access" requirement as incorporating the Rule 32(c)(3)(E) limitation on the availability of copies of the reports is affirmatively supported by another provision of the Parole Act, 18 U.S.C. 4208(c), which exempts from disclosure under the statutory "reasonable access" provision any information that falls into one of three categories that directly parallel the categories of information that may be withheld from the defendant under Rule 32(c)(3)(A); and as under that Rule, Section 4208(c) requires that the exempt information be furnished in a summarized form. The legislative history of the Parole Act shows that this parallel to Rule 32(c) was deliberate. See H.R. Conf. Rep. 94-838, supra, at 29; S. Rep. 94-648, 94th Cong., 2d Sess. 29 (1976); 121 Cong. Rec. 15705 (1975) (remarks of Rep. Drinan). /21/ It accordingly was entirely reasonable for the Commission likewise to follow Rule 32(c) and its implementation by the courts with respect to the related aspect of disclosure at issue here -- the release of a copy of the presentence report to the subject of the report. Just as the FOIA cannot be used to circumvent the restrictions on discovery of the presentence report in judicial proceedings governed by Rule 32(c)(3)(E), it cannot be used to circumvent the identical limitations on discovery in parallel administrative proceedings governed by 18 U.S.C. 4208(b) and implementing regulations. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). /22/ e. The limitations on the availability of presentence reports from the Parole Commission, which respondents seek to avoid, were recently reviewed and unanimously reaffirmed by the Commission. The occasion for this assessment was a petition for rulemaking filed on March 26, 1985 by the Public Citizen Litigation Group, which proposed that the Commission order the release of copies of presentence reports to federal prisoners and other subjects of the reports on a routine basis (Pet. App. 23a). Because of the obvious interest of the courts in this proposal, the Parole Commission solicited the views of the Administrative Office of the United States Courts (Pet. App. 24a). By letter dated June 17, 1985 (Pet. App. 24a-27a), the Chief of the Division of Probation of the Administrative Office opposed the proposal. He stated that "it is the position of the Probation Committee of the Judicial Conference of the United States, as well as the Probation Division of the Administrative Office of the U.S. Courts, that permitting a defendant to keep a copy of his presentence report could likely impede the ability of U.S. probation officers to gather information and protect their sources" (id. at 25a). The Administrative Office observed that "(p)resentence investigation reports contain an abundance of personal and social information about the defendant, his family and associates, and other innocent persons" (Pet. App. 25a). For these reasons, the Administrative Office explained, "(p)robation officers do now and always have assured sources of such information" that although a presentence report will be made available to the defendant, his counsel, and prosecutor to read, "broader access" to the information will be controlled by the court (ibid.). The Administrative Office then continued (id. at 25a, 26a-27a): Were a defendant permitted to retain a copy of his report, * * * there would be no way to effectively prohibit further disclosure of the information to third parties. This possibility is far more dangerous to a source of information than is the possibility of the defendant revealing his recollection of what he read in the report prior to sentencing. * * * * * (Rule 32(c)(3)(E)) embodies the concern of the courts that the defendant's retention of the presentence report is normally inimical to the interests of obtaining full and accurate information prior to sentencing. * * * * * Sources would have to be advised that a defendant would actually control the dissemination of information in the report. This realization would be of concern to all sources, particularly state and local law enforcement agencies, which, understandably, might have more confidence in the measured discretion of the court than the whims of the defendant. The Administrative Office also observed that if the Parole Commission granted the rulemaking petition, the effect would be for the Commission "to usurp the authority granted to district judges" under Rule 32(c)(3)(E) by conferring on the subject of the presentence report a right (to retain a copy of the report) that was denied to him by the district court (Pet. App. 26a). After receiving these comments, the Commission, adopting the views of its General Counsel, denied the rulemaking petition (Pet. App. 23a, 28a-34a). The Commission stated that it had "been given ample evidence over the years (and quite recently) that the assumption is strongly held and widely shared among the U.S. Probation Officers in the field, as well as the U.S. District Judges who listen to the point of view expressed by the Probation Service," that "permitting defendants to keep copies of their presentence reports would impede the ability of U.S. Probation Officers to gather information and protect their sources" (id. at 30a). In addition, based on its past experience with the courts' sensitivity on this issue, the Commission feared that if it made copies of presentence reports available to prisoners, many courts might resist furnishing presentence reports to the Commission in the future (id. at 31a-32a). The Commission also noted that it had achieved a "harmonious approach" to the problem by respecting the "privileged status" accorded the presentence report by the courts (id. at 30a-31a), and it was confident that "fundamental fairness is hardly at stake," since a prisoner is permitted to read the report prior to his parole hearing and would not gain much by obtaining a copy of it as well (id. at 31a). f. In sum, even if the court of appeals were correct that the availability of agency memorandums under FOIA Exemption 5 depends not on whether they would be routinely available to a member of the general public in litigation with the agency but on whether they would be available to a particular requester, the court's decision cannot be squared with the deliberate and repeated determination by Congress and this Court to deny the subject of the report such a right under the special discovery provisions of Rule 32(c); nor can it be squared with the considered and unanimous determination by the Parole Commission to defer to the widely shared view of the probation officers and the courts that release of copies of those reports to defendants and prisoners would undermine the probation officers' ability to obtain complete information. Those determinations pose valid obstacles to routine discovery by the subject of the report. This Court has repeatedly stressed that the FOIA cannot be utilized to circumvent limitations on discovery in this manner. See United States v. Weber Aircraft Corp., 465 U.S. at 801-802; Baldrige v. Shapiro, 455 U.S. 345, 360 & n.14 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242-243 (1978); NLRB v. Sears, Roebuck & Co., 421 U.S. at 143 n.10; Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). III. THE PAROLE COMMISSION ALSO MAY WITHHOLD COPIES OF RESPONDENTS' PRESENTENCE REPORTS FROM THEM UNDER EXEMPTION 3 OF THE FOIA We have demonstrated above that the relevant question under the FOIA is whether the document in question must be disclosed to any member of the general public, not whether it should be disclosed to a particular requester who claims a special interest in or nexus in it. We also have demonstrated that respondents' claim of a special right to obtain copies of their own presentence reports is in any event flatly inconsistent with the determination by this Court and Congress to withhold that very right from the subjects of presentence reports under Fed. R. Crim. P. 32(c)(3)(E). By virtue of that specific determination by Congress, to which the Parole Commission has consistently adhered in its handling of the same reports, the presentence reports in this case are protected by Exemption 3 of the FOIA as well as Exemption 5. Exemption 3 provides that the FOIA shall not apply to matters that are -- specifically exempted from disclosure by statute (other than section 552b of this title), 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(.) 5 U.S.C. 552(b)(3) (emphasis added). Presentence reports are protected by the second portion of Clause (B) of this exemption. See, e.g., CIA v. Sims, 471 U.S. at 167-168. /23/ This protection derives from the withholding authority in Fed. R. Crim. P. 32(c)(3)(E), which has consistently been respected by the Parole Commission. Fed. R. Crim. P. 32(c)(3)(E) provides: Any copies of the presentence 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. This rule satisfies all of the prerequisites for a withholding statute that are set forth in Exemption 3(B). First, the Rule was enacted into law by Congress in 1975, /24/ and it therefore plainly is a "statute" within the meaning of Exemption 3. See Fund for Constitutional Government v. National Archives, 656 F.2d 856, 867 (D.C. Cir. 1981). Second, Rule 32(c)(3)(E) "refers to particular types of matters" within the meaning of Exemption 3(B). In fact, the Rule speaks with uncommon particularity, since it refers to only one "matter," copies of presentence investigation reports. Third, Rule 32(c)(3)(E) specifies that copies of presentence reports ordinarily shall be "withheld." The Rule refers specifically only to the return of the particular copies examined prior to sentencing by the defendant, his attorney, and the government attorney, but it obviously assumes that copies would be withheld from those persons under other circumstances and from the public at large. If, as we contend, Rule 32(c)(3)(E) is a "statute" that "refers" with particularity to copies of presentence reports and specifies that they should ordinarily be "withheld," that specific exemption from disclosure applies to the copy acquired by the Parole Commission. Congress provided for probation officers to furnish presentence reports to the Commission (18 U.S.C. 4205(e)), and the Commission is expressly required by 18 U.S.C. 4207(3) to consider those reports in connection with its parole determinations. In the latter connection, the Commission is required by 18 U.S.C. 4208(b) to give the prisoner "reasonable access" to the presentence report, but there continues to be a statutory basis for the report to be withheld from any broader disclosure. First, 18 U.S.C. 4208(b) is itself properly interpreted to authorize withholding of presentene reports. As noted above, the Parole Act, containing Section 4208(b), was considered at the same time as the 1975 amendments to Rule 32(c), and Congress deliberately paralleled the prisoner's right of "access" to the presentence report in connection with his parole consideration with the defendant's rights under Rule 32(c) at the earlier stage of the sentencing process. See pages 37-38, supra. Accordingly, the Commission has applied 18 U.S.C. 4208(b)'s requirement of "reasonable access" so as to incorporate Rule 32(c)(3)(E)'s specific direction that copies should ordinarily be withheld, and the Commission has therefore provided by regulation that the prisoner may obtain a copy of his presentence report only from the sentencing court. See pages 36-38, supra. In any event, where a statute expressly directs an agency of the government to withhold a particular document from members of the public, so that the document is exempt under Exemption 3, and a second statute provides that a second agency of the government shall consider the document under specified circumstances, it is obvious that FOIA Exemption 3 must continue to apply to the document in the hands of the second agency. Nothing in Exemption 3 limits its protection to copies in the hands of the originating agency, or the agency named in the exempting statute. Compare FBI v. Abramson, 456 U.S. 615, 628-629 (1982) (records compiled for law enforcement purposes retain their exempt status when transmitted to another agency). And such a limitation would make no sense: it would require Congress, after clearly indicating its intention that a document be withheld from disclosure, to restate that intention in connection with any required or permitted use of the document by another agency, even where there is no reason whatever to believe that Congress had any different intention. Cf. id. at 624-625, 628-629; Department of State v. Washington Post Co., 456 U.S. 595, 601 (1982). Here, the express provision of Rule 32(c)(3)(E) that copies of a presentence report be returned to the court immediately after sentencing clearly indicates Congress's intention that presentence reports not be disseminated. That clear congressional direction brings copies of such reports within Exemption 3, and nothing in Congress's separate instructions to the Parole Commission indicates any change in that intention or removes copies of such reports from that protection. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General LEONARD SCHAITMAN SANDRA WIEN SIMON Attorneys AUGUST 1987 /*/ Petitioner Turnbo apparently was named because respondent Wallace styled her action as a petition for a writ of habeas corpus under 28 U.S.C. 2241 (E.R. 11), although the district court thereafter treated it as a suit under the FOIA (Pet. App. 17a). The proper defendant in a suit under the FOIA is the agency that withheld the document. See 5 U.S.C. 552(a)(4)(B). Respondent Turnbo therefore was not a proper defendant insofar as this case was permitted to proceed under the FOIA. /1/ See note 4, infra. /2/ The probation officer performs this and other functions under the direction of the district court. 18 U.S.C. 3654. /3/ A presentence report need not be prepared if the defendant (with the consent of the court) waives that requirement or if the court finds that the record already contains sufficient information to permit a meaningful exercise of its sentencing discretion. Fed. R. Crim. P. 32(c)(1). If the probation officer prepares the report before the defendant has pleaded guilty or nolo contendere or has been found guilty, the report shall not be submitted to the court "or its contents disclosed to anyone," although the court may "inspect" the report at any time if the defendant consents (ibid.). /4/ The Parole Commission will be phased out under the sentencing provisions of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Tit. II, ch. 2, 98 Stat. 1987. Those provisions prescribe standards for the imposition of sentences by the district courts (18 U.S.C. (Supp. III) 3551 et seq.) and establish a United States Sentencing Commission, which is responsible for promulgating guidelines and general policy statements concerning, inter alia, whether to impose a sentence of imprisonment and what the length of the term should be (28 U.S.C. (Supp. III) 991 et seq.). In general, the 1984 Act requires a fixed term of imprisonment in those cases in which a sentence of imprisonment is imposed (18 U.S.C. (Supp. II) 3581, 3582(a) and (c)); there is no provision for release on parole prior to the end of that term (18 U.S.C. (Supp. III) 3621(a), 3624(a)). Because parole has been eliminated, the 1984 Act, as amended, provides that the Parole Act shall be repealed (on a prospective basis) effective November 1, 1987, when the new sentencing provisions go into effect. Pub. L. No. 98-473, Sections 218(a)(5), 235(a)(1), 98 Stat. 2027, 2031; Pub. L. No. 99-217, Section 4, 99 Stat. 1728. The Parole Commission will, however, remain in existence for five years after November 1, 1987, in order to render parole decisions with respect to prisoners who were sentenced prior to that date, and the Parole Act therefore will remain in effect for five years with respect to those individuals. Pub. L. No. 98-473, Section 235(b)(1)(A) and (3), 98 Stat. 2032. The Commission will continue to have custody of presentence reports for as long as it remains in existence. Moreover, even after that time, the Bureau of Prisons will continue to receive copies of presentence reports from the district courts. For these reasons, despite the phasing out of the parole system, the question whether copies of presentence reports are subject to mandatory release under the FOIA is of substantial practical importance to both the Parole Commission and the Bureau of Prisons. /5/ The Privacy Act regulations explain that this system of records has been exempted in order, inter alia, to prevent disclosures that "would jeopardize legitimate correctional interests of security, custody, supervision, or rehabilitation"; "to permit receipt of relevant information from * * * law enforcement agencies() and federal and state probation and judicial offices"; "to allow private citizens to express freely their opinions for or against parole"; and "to allow a candid process of fact selection, opinion formulation, evaluation and recommendation" (28 C.F.R. 16.85(b)(3)). /6/ Respondent Wallace was released on parole on April 17, 1985, and completed serving her sentence on August 17, 1986. /7/ The court indicated that if the requester were a third party, rather than the subject of the report, additional portions of the presentence report might be withheld under FOIA Exemption 6, which applies to matters the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6). See Pet. App. 8a n.4. /8/ A number of the presentence report cases cited in the text involve efforts by the defendant in a criminal prosecution to obtain the presentence report of a co-defendant or witness, often in order to use it for impeachment purposes. If presentence reports are privileged from routine release even in that setting, it should follow a fortiori that they are not routinely available in civil discovery. And in fact presentence reports also have been found to be privileged in civil proceedings, subject to release only for "the most compelling reasons." United States v. Charmer Industries, Inc., 711 F.2d at 1174. See also United States v. Krause, supra; Hancock Bros. v. Jones, supra. Compare United States v. Sells Engineering, Inc., 463 U.S. at 442-445; Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 221-224. /9/ In light of this self-evident proposition that presentence reports must be protected from mandatory disclosure by the Parole Commission to the same extent as they are from mandatory disclosure by the sentencing court, the Department of Justice at one time took the position that copies of presentence reports in the possession of the Parole Commission and Bureau of Prisons are not "agency records" for purposes of the FOIA, but instead are court documents that are altogether excluded from the coverage of the FOIA. See 5 U.S.C. 551(1)(B) (the term "agency" does not include "the courts of the United States"). That position was accepted by three courts of appeals. See Lindsey v. Bureau of Prisons, 736 F.2d 1462 (11th Cir. 1984); Crooker v. Parole Comm'n, 730 F.2d 1 (1st Cir. 1984); Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968). Two other courts of appeals reached a contrary conclusion. See Berry v. Department of Justice, 733 F.2d 1343 (9th Cir. 1984); Lykins v. Department of Justice, 725 F.2d 1455 (D.C. Cir. 1984); Carson v. Department of Justice, 631 F.2d 1008 (D.C. Cir. 1980). Thereafter, in the brief in opposition to the certiorari petition filed by the requester in Crooker, the Solicitor General represented that the Parole Commission would no longer withhold presentence reports on the ground that they are not "agency records" for purposes of the FOIA. That new position was taken in view of the importance of the presentence report in the parole determination, the Commission's control over the copy of the report in its possession, and the 1983 Amendments to Fed. R. Crim. P. 32(c) that recognized the Commission's use and control of the report. See Br. in Opp. at 8-18, Crooker v. Parole Comm'n, 469 U.S. 926 (1984). The Solicitor General further argued (id. at 18-20), however, that presentence reports are exempt from mandatory disclosure by Exemptions 3 and 5 of the FOIA. The Court granted the petition in Crooker, vacated the judgment below, and remanded for further consideration in light of the Solicitor General's new position. 469 U.S. 926 (1984). The Solicitor General thereafter took the same position in Lindsey with respect to presentence reports in the possession of the Bureau of Prisons, and the Court likewise remanded that case for further consideration. 469 U.S. 1082 (1984). On remand in Crooker, the First Circuit proceeded on the premise that presentence reports are "agency records," rejected the Parole Commission's Exemption 3 claim, declined to consider the Commission's Exemption 5 claim because it had not been raised below, and ordered release of the report. Crooker v. Parole Commission, 760 F.2d 1 (1985). The Eleventh Circuit has not yet rendered a decision on remand in Lindsey. /10/ The District of Columbia Circuit observed in Carson v. Department of Justice, supra, that although this legislative history did not have a bearing on the question whether the Parole Commission's copy of a presentence report is an "agency record," it "is probably relevant to the question of the applicability of the FOIA's exemptions" (631 F.2d at 1015). /11/ "(T)he use of the indefinite article in Exemption 5 (i.e., 'would not be available by law to a party * * * ') indicates that the scope of Exemption 5 is to be determined without regard to the particular circumstances or needs of any specific actual or hypothetical party." Brockway v. Department of the Air Force, 518 F.2d 1184, 1192 n.7 (8th Cir. 1975) (emphasis in original). /12/ When Congress wished to confer a special right of access on the subject of a document, it did so not through the public disclosure provisions of the FOIA, but through the private disclosure provisions of the Privacy Act, 5 U.S.C. 552a(d), which is of course unavailable to respondents here. See page 9, supra. /13/ The proposed provision read: "After determination of the question of guilt the report shall be made available, upon such conditions as the court may impose, to the attorneys for the parties and to such other persons or agencies having a legitimate interest therein as the court may designate." Orfield, The Federal Rules of Criminal Procedure, 21 N.Y.L.Q. Rev. 167, 196 (1946). /14/ Judge Alexander Holtzoff stated with respect to this arrangement: I don't believe of course that presentence reports should be public documents in the sense of being filed in the clerk's office and every busy body and curiosity seeker could pull them out and look at them. I have a strong feeling however that no judicial action ought to be taken on information not available to the parties. I think a defense lawyer should know why his client for example is being sent to jail, or why he is being given a long term in the penitentiary, instead of a short term. I think the rule is perfectly all right. It leaves the matter of discretion to the district judge. Whenever any counsel wants to know what is in the report I have always handed him the report. Transcript of New York University Institute on the Federal Rules of Criminal Procedure 183-184 (Feb. 15, 1946) (emphasis added) (quoted in Orfield, supra note 13, 21 N.Y.L.Q. Rev. at 193 n.118). /15/ Shortly after the Criminal Rules were adopted in 1946, this Court held in Williams v. New York, 337 U.S. 241 (1949), that the Due Process Clause does not bar a court from relying at sentencing on information contained in a presentence report that was not disclosed to the defendant. The Court observed that most of the information upon which courts rely at sentencing "would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination" (id. at 250). But see Gardner v. Florida, 430 U.S. 349 (1977). /16/ Committee on Rules of Practice and Procedure, Judicial Conference of the United States, Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, 34 F.R.D. 411, 438 (1964). A prior preliminary draft, published in 1962, would have required the court, upon request, to disclose a summary of material in the report (except sources of confidential information) to the defendant or his counsel. Committee on Rules of Practice and Procedure, Judicial Conference of the United States, First Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, 31 F.R.D. 669, 671, 686 (1962). /17/ This opposition led the Judicial Conference's Committee on the Administration of the Probation System to vote unanimously against compulsory disclosure of the contents of the report. Hoffman, What Next in Federal Criminal Rules?, 21 Wash. & Lee. L. Rev. 1, 19 & n.40 (1964). See also Wright, Procedural Reform: Its Limitations and Its Future, 1 Ga. L. Rev. 563, 575 (1967). /18/ Justice Douglas dissented from the Court's adoption of this permissive version of Rule 32(c)(2) and expressed the view that the Court should refer it back to the Advisory Committee "for further consideration and reflection" (383 U.S. at 1092-1093 (Douglas, J., dissenting in part)). /19/ In the 1983 Amendments, Rule 32(c)(3)(A) was amended to provide that "the court shall permit the defendant and his counsel to read the report of the presentence investigation" and to do so even in the absence of a request by the defendant (emphasis added). The 1975 version required that either the defendant or his counsel be permitted to read the report upon request. These amendments reflect another incremental step in the direction of assuring that every defendant takes advantage of the opportunity to read the report. Advisory Committee note, 97 F.R.D. 245, 307 (1983). But, as noted in the text, the Court did not change the requirement that those defendants who do take advantage of that opportunity must nevertheless return the presentence report to the probation officer immediately after sentencing. /20/ See Pub. L. No. 98-473, Tit. II, Section 215(a), 98 Stat. 2014-2015; S. Rep. 98-225, 98th Cong., 2d Sess. 156-158 (1984). These amendments to Rule 32 take affect on November 1, 1987. Pub. L. No. 98-473, Tit. II, Section 235(a)(1), 98 Stat. 2031, as amended, Pub. L. No. 99-217, Section 4, 99 Stat. 1728. /21/ The nexus between the Parole Act and Rule 32(c) is further illustrated by the Senate Committee's consideration of an earlier version of the bill. See Parole Legislation: Hearings Before the Subcomm. on National Penitentiaries of the Senate Comm. on the Judiciary, 93d & 94th Congs., 1st & 2d Sess. (1973-1975) (hereinafter Hearings). The version of the bill before the Committee in 1974 would have exempted from inspection under the "reasonable access" provision not only the three categories of information that parallel those in Rule 32(c)(3)(A), but also "any part of any presentence report, except upon agreement of the court having jurisdiction to impose sentence." Hearings 47; see also id. at 54. Chairman Sigler of the Parole Board expressed the view that "the judge has the right to say what material he has submitted to (the Parole Board) can be used" (id. at 66), and he was concerned that the consent provision might create delay while the Commission sought to determine whether the sentencing court would agree to permitting the defendant to review the presentence report (id. at 64). The Committee staff director then observed that "(t)he Judicial Conference has before it a proposal to change the rules of criminal procedure to provide that all presentence reports are made available to the defendant at the time of sentencing, which of course would take care of this problem if the Judicial Conference makes that change" (ibid.). 4 The Judicial Conference, this Court, and Congress of course thereafter did make the change to which the Committee's staff director referred. The provision in the 1974 bill that required the Commission to obtain the sentencing court's consent before allowing a prisoner to read his presentence report was then omitted from the version of the bill that the Committee reported during the next Congress. S. Rep. 94-369, 94th Cong., 1st Sess. 24 (1975). The Senate Committee apparently concluded that if the defendant will have been allowed to read the presentence report prior to sentencing under the newly amended Rule 32(c), the Parole Commission should have the authority to allow him to do so again prior to his parole hearing. Cf. Carson v. Department of Justice, 631 F.2d at 1014 n.27. This chain of events corroborates the conclusion that the "access" provisions of the Parole Act were considered by Congress with the parallel to Rule 32(c) specifically in mind. /22/ For the same reason, the court of appeals erred in holding (Pet. App. 12a n.7) that Rule 32(c) and 18 U.S.C. 4208(b) constitute a "waiver" of the recognized privilege against disclosure of presentence reports. Those provisions furnish only a limited right of access on specific occasions that Congress and this Csourt determined give the subject of the report a particularized need to read it. Those provisions do not compel the disclosure of the contents of the report even to the defendant or prisoner in other circumstances. They do not constitute a "waiver" of the Commission's right to withhold a copy of the report from release to the subject of the report, much less to the public, under the FOIA. In addition, and contrary to the court of appeals' suggestion (Pet. App. 13a-14a), it is clear that factual material is protected by Exemption 5 where, as here, that material would be privileged in civil discovery. See United States v. Weber Aircraft Corp., 465 U.S. at 800 n.17. In fact, in EPA v. Mink, supra, upon which the court below principally relied (Pet. App. 13a-14a), the Court discussed certain aspects of the legislative history leading up to the enactment of the FOIA in 1966 that demonstrated that Congress had rejected proposals to exclude all factual material from the coverage of Exemption 5 (410 U.S. at 91). See Martin v. Office of Special Counsel, No. 86-5385 (D.C. Cir. June 5, 1987), slip op. 6-10. /23/ As is apparent from the language of Exemption 3, its "requirements * * * are phrased in the disjunctive." Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979), cert. denied, 444 U.S. 1075 (1980); Lee Pharmaceuticals v. Kreps, 577 F.2d 610, 616-617 & n.8 (9th Cir. 1978), cert. denied, 439 U.S. 1073 (1979); De Laurentiis v. Haig, 686 F.2d 192, 194 (3d Cir. 1982). Accordingly, a statute may satisfy Exemption 3 by satisfying any one of its three distinct criteria (Long v. IRS, 742 F.2d 1173, 1178-1179 (9th Cir. 1984)), including, as in CIA v. Sims, supra, the second portion of Clause (B) of Exemption 3. /24/ Pub. L. No. 94-64, Section 3(34), 89 Stat. 376. As enacted, the provision was designated Rule 32(c)(3)(D).