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FOIA Update: Supreme Court Decides Julian

FOIA Update
Vol. IX, No. 2

Supreme Court Decides Julian

On May 16, the United States Supreme Court decisively resolved the status of presentence reports under the Freedom of Information Act, putting to rest a FOIA controversy that had existed for many years.

By a 5-3 vote, the Court ruled in United States Department of Justice v. Julian, 108 S. Ct. 1606 (1988), that the "presentence report privilege" cannot be employed under Exemption 5 of the FOIA to withhold presentence reports from the subjects of the reports themselves, nor can such records be withheld in their entireties pursuant to Exemption 3 of the FOIA.

The Julian case involved FOIA requests filed by two federal prisoners who sought complete access to the presentence reports prepared on them prior to their incarceration. Such reports are typically prepared by probation officers, who are court employees, as part of the criminal sentencing process in accordance with Rule 32 of the Federal Rules of Criminal Procedure.

Under Rule 32, criminal defendants and their counsel are permitted to read their presentence reports prior to sentencing, but they are specifically prohibited from retaining copies. After sentencing, the reports routinely are transmitted from the court system to the Justice Department's Bureau of Prisons and, under the Parole Commission and Reorganization Act of 1976, to the Department's Parole Commission for eventual use in parole proceedings.

Lengthy Litigation History

In light of this, federal prisoners have for many years attempted to get complete access to their presentence reports through the FOIA. The Bureau of Prisons and the Parole Commission, upon receiving such FOIA requests, have attempted to effectuate their understanding of the intent of both Rule 32 and the Parole Reorganization Act by denying the requests on various FOIA grounds.

Initially, the Government took the position that these reports were not "agency records" under the FOIA because of their origination by, and transfer from, the courts. Alternatively, it was argued that they were not "improperly withheld" under the FOIA where the local rules of many federal district courts specifically reserved control over them. The latter position was rejected by the D.C. Circuit Court of Appeals in Lykins v. United States Department of Justice, 725 F.2d 1455, 1460-62 & n.7 (D.C. Cir. 1984). Although the "non-agency record" position was accepted in one appellate decision, the Solicitor General later decided not to defend that position before the Supreme Court. See Crooker v. United States Parole Comm'n, 730 F.2d 1, 3-11 (1st Cir.), cert. granted, vacated & remanded, 469 U.S. 926 (1984).

Most recently, the Government argued that the entire reports were prohibited from disclosure by Rule 32 and the Parole Reorganization Act, as Exemption 3 statutes, and additionally that the "presentence report privilege," which protects those reports from third-party access in both civil and criminal discovery, can operate to exempt them under Exemption 5 of the FOIA even in the context of a first-party FOIA request.

Both of these positions were rejected by the Ninth Circuit Court of Appeals in the Julian case, but the novel privilege defense was accepted by the D.C. Circuit in Durns v. Bureau of Prisons, 804 F.2d 701, 703-06 (D.C. Cir.), reh'g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986), cert. granted, vacated & remanded, 108 S. Ct. 2010 (1988), which created the appellate court conflict that prompted the Supreme Court's review of the issue.

The Julian Decision

The Supreme Court resolved this conflict by determining, first, that neither Rule 32 nor the Parole Reorganization Act is sufficiently explicit in its disclosure limitations to qualify as an Exemption 3 statute protecting the entirety of a presentence report. (Both authorities do contain specific prohibitions covering certain particularly sensitive portions of the reports, which were not at all in dispute.)

Most significantly, in a majority opinion written by Chief Justice William H. Rehnquist, the Court rejected the Exemption 5 position, finding "no basis" for applying the "presentence report privilege" -- which is designed largely to protect the interests of the report's subject -- against the subject of the report himself when he proceeds as a first-party requester under the FOIA.

In resolving this particular privilege issue in this way, Chief Justice Rehnquist recognized that it necessarily results in differing treatment of FOIA requesters according to who they are. He stated, however, that "it seems clear that there is good reason to differentiate between a 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." 108 S. Ct. at 1614.

Writing in dissent, Associate Justice Antonin Scalia stated that he could not agree with any resolution of this privilege issue under the FOIA that produced, as he saw it, such a "peculiar result." 108 S. Ct. at 1616. Significantly, because he would have applied the privilege under Exemption 5, Justice Scalia also expressly addressed the Exemption 5 threshold issue (which the majority did not reach) and analyzed it pragmatically in the Government's favor, i.e., concluding that presentence reports can qualify as "inter-agency memoranda" even though they originate outside the Executive Branch. Id. at 1616 n.1. This bolsters the "functional" Exemption 5 approach likewise taken by the D.C. Circuit in its Durns decision (see FOIA Update, Fall 1987, at 1), which should stand unimpaired in this respect by the Supreme Court's action. See 108 S. Ct. 2010 (1988) (vacating Durns decision on other grounds).

Prospective Supreme Court Review

The Supreme Court's resolution of the presentence report issue in the Julian case leaves several other FOIA issues that might possibly command the Court's attention during its upcoming 1988-1989 Term.

One major issue that is certain to benefit from the Court's careful attention is the question of the proper method of balancing public and personal privacy interests under Exemptions 6 and 7(C). This difficult question is squarely presented in the case of Department of Justice v. Reporters Committee for Freedom of the Press (see pp. 3-5 of this issue of FOIA Update) that already has been accepted for review by the Court and is expected to be argued before it this coming fall.

Other possible candidates for Supreme Court review are presently working their way through the appellate court system. One such FOIA case that is of great concern to the Government is Washington Post Co. v. United States Department of State, 840 F.2d 26 (D.C. Cir. 1988), which, like Reporters Committee, presently stands as a very troubling privacy decision issued by a divided panel of the D.C. Circuit Court of Appeals.

The Washington Post case, which already has reached the Supreme Court on the Exemption 6 threshold issue, see FOIA Update, June 1982, at 9, involves the State Department's longstanding efforts to protect under Exemption 6 the sensitive fact of whether a former high-ranking Iranian official still living in Iran ever sought U.S. citizenship. In February, over a vigorous dissent, Chief Judge Spottswood W. Robinson, III of the D.C. Circuit ruled that the resolution of the question of possible harm in this case requires the extraordinary adjudicatory step (for FOIA cases) of holding a trial. See FOIA Update, Winter 1988, at 3.

The implications of this procedural ruling are particularly troubling, because the decision suggests that such questions of threatened harm under the FOIA cannot be resolved through the usual, highly efficient summary judgment mechanism. Accordingly, the Government has petitioned for en banc rehearing of the issue by the full D.C. Circuit, raising the impracticability of the court's decision among other substantive arguments. That rehearing petition has been pending with the D.C. Circuit for an extraordinary length of time (since March 21), which suggests that perhaps it is being informally held in abeyance pending the Supreme Court's decision on the related privacy issues presented in Reporters Committee. If the petition is denied, then Washington Post quite likely will follow Reporters Committee to the Supreme Court for its consideration once again.

Another possible candidate for Supreme Court review is the case of Tax Analysts v. United States Department of Justice, 845 F.2d 1060 (D.C. Cir. 1988), in which the D.C. Circuit has ruled that the Tax Division of the Department of Justice can be required under the FOIA to provide a commercial tax reporting service with access to slip opinions compiled from tax cases nationwide (see p. 7 of this issue of FOIA Update). The Solicitor General will have to decide whether to seek Supreme Court review of this adverse decision by early fall.

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Updated August 13, 2014