Bureau of Prisons uses a sledgehammer where FOIA demands a finer instrument

By Marka Peterson
August 5, 2003

Fifteen years ago the Supreme Court decided in Department of Justice v. Julian that prison inmates are entitled to obtain copies of their presentence investigation reports under the Freedom of Information Act.  The Federal Bureau of Prisons, an arm of the Department of Justice, recently decided to ignore that decision by adopting a blanket policy that prisoners are prohibited from obtaining copies of their presentence reports.  On the basis of this new policy, the bureau has uniformly denied prisoners' FOIA requests for their presentence reports.

The bureau's actions flatly contradict Julian and also the important principles it stands for:  that under FOIA, Congress, not government agencies, gets to make the rules about which government records are exempt from disclosure, and it is the agencies' job to apply those rules, not make new ones themselves.

Presentence reports are background reports that must be prepared about each convicted defendant to assist the court in sentencing.  Inmates want - and are entitled to - copies of their presentence reports not only to use for any appeals and post-conviction proceedings (in which inmates are, moreover, often representing themselves), but also because information in the presentence report is used to determine the inmate's conditions of incarceration, rehabilitation program, and the timing and conditions of release.

The Julian decision is one of the few FOIA cases in which the court sided with FOIA requesters rather than the government.  In concluding prisoners are entitled to copies of their presentence reports, Chief Justice William Rehnquist, writing for the majority, emphasized the straightforward mandates of FOIA.  The upshot of FOIA and Julian is that the role of agencies is to apply FOIA, and its exemptions, to information requested under FOIA.  Thus for any information an agency seeks to withhold, the agency must show that that information meets the requirements of a specific FOIA exemption.

With its sweeping policy of withholding all presentence reports, the Bureau of Prisons has thrown these principles to the winds.  It claims, first, that its policy is justified because it has the statutory authority to regulate prison conditions.  But this is an end-run around FOIA that the Supreme Court declared impermissible in Julian.  The self-contained nature of FOIA means information must be disclosed unless the agency has shown why the information is exempt under FOIA itself, regardless of authority an agency may have under other statutes.

To be sure, the bureau also claims that its entire policy meets the requirements of FOIA  Exemption 7(F), which permits an agency to withhold information whose release may create a risk of harm to an individual.  The justification the bureau asserts is that some presentence reports contain information that might place some inmates at risk:  information that the inmate who is the subject of the report is a gang member, has significant financial resources, or has acted as a government informant.  However, on this basis the bureau claims it may withhold all presentence reports, not just those reports that in fact contain this information, and also to withhold even the parts of the reports that have nothing to do with this kind of information.

In just one example, the bureau denied the request of an inmate, now represented by the Public Citizen Litigation Group, without determining - or even claiming - that his presentence report actually contains any of the information it says might be exempt.  And it is doubtful the bureau could show this inmate's report contains the suspect information, because the prisoner is 44 years old, has been incarcerated for most of the last 18 years, and has been convicted only for non-violent, white-collar crimes such as wire fraud and credit-card fraud.

Thus the bureau's policy justification does not apply to this inmate's report nor, undoubtedly, to many others - hardly the information-specific justification that FOIA requires.

The undifferentiated approach that the bureau has taken raises another problem that indicates just how out of step it is with normal law-making procedures.  The bureau is, in effect, attempting to override FOIA with its asserted power to regulate prison conditions.  But even if the bureau were only trying to regulate prisons directly, for example by putting in place a rule about when and where prisoners may possess and use certain legal documents, the sweeping policy here would still be invalid.

Rules - prospective, generally applicable directives - must undergo the notice-and-comment procedures of the Administrative Procedure Act, and also must not be arbitrary.  This policy fails on both counts.  It makes a substantial change in prison conditions for inmates, but did not undergo notice and comment rulemaking.  Even if it had, it also fails as arbitrary, for the same reason the policy fails to meet the requirements of FOIA:  It is unsupportable to declare all presentence reports off-limits to inmates when only some of those reports contain information that might cause risk to prisoners, instead of using a rational system that would permit the agency to withhold or excise only those reports that actually present the risks the prison is seeking to prevent.

Of course it is a burden for an agency to ensure its actions are rationally justified, whether for reasons of FOIA or the APA, rather than to act on the basis of sweeping, unreviewed and uncommented-on rules.  But it is against the backdrop of this type of institutional interest in using a sledgehammer that Congress enacted FOIA in its current form, requiring agencies to use something much more akin to a scalpel.

While there is no doubt the Bureau of Prisons has vast authority to regulate prison life, that authority must be exercised in a rational and law-abiding manner.  Here that means releasing presentence reports to which the bureau's safety concerns do not actually apply, as FOIA requires.

ABOUT THE WRITER

Marka Peterson is a fellow with Public Citizen Litigation Group, 1600 20th Street NW, Washington, D.C. 20009;
e-mail: mpeterson@citizen.org; Web site: www.citizen.org/litigation.