US SUPREME COURT DECISIONS

The two respondents are federal prison inmates whose requests for copies of their presentence investigation reports were denied by the Parole Commission. Pursuant to Federal Rule of Criminal Procedure 32(c), a probation officer prepares the presentence report, which contains background information about the defendant and the circumstances of his offense, for use by the district court at sentencing. Under the Rule, the court, before imposing sentence, must permit the defendant and his counsel to read the report, except portions, inter alia, containing diagnostic opinions, confidential sources of information, or information that, if disclosed, might cause harm to the defendant or others. After sentencing, the reports are typically transmitted to the Bureau of Prisons for its use, and then -- pursuant to the Parole Commission and Reorganization Act of 1976 (Parole Act) -- are sent to the Parole Commission for eventual use in determining whether a prisoner should be paroled. The Parole Act provides that, before a scheduled parole hearing is held, the prisoner must be given reasonable access to the report, but exempts the same three categories of information as Rule 32(c). After the Parole Commission denied their disclosure requests, respondents filed separate suits under the Freedom of Information Act (FOIA), and the District Courts ordered disclosure. Consolidating petitioners' appeals, the Court of Appeals affirmed. It rejected petitioners' contentions that presentence reports are exempt from disclosure under both chanrobles.com-red

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Exemption 3 and Exemption 5 of the FOIA. Exemption 3 pertains to matters that are "specifically exempt[ed] from disclosure" by another statute that "refers to particular types of matters to be withheld." Exemption 5 makes the FOIA inapplicable to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

Held: The FOIA requires that the presentence reports be disclosed by petitioners, except as to matters relating to confidential sources, diagnostic opinions, and possibly harmful information. Pp. 8-14. Pp. 486 U. S. 8-14.

(a) Beyond protecting from disclosure the matters noted above, neither Rule 32(c) nor the Parole Act satisfies Exemption 3's requirements. Recent changes, leading to their present provisions, have been made in both the Rule and the Parole Act, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. Although Rule 32's provision requiring that all copies of reports furnished under the Rule be returned to the court, unless it directs otherwise, qualifies somewhat the defendant's access to the presentence report when it is furnished by the district court in the context of sentencing, it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that "specifically exempt[s] from disclosure" for purposes of Exemption 3. Moreover, the Parole Act does not contain a similar provision. Pp. 486 U. S. 8-11.

(b) Exemption 5 of the FOIA does not support withholding of the presentence reports. The Exemption incorporates the privileges which the Government enjoys under relevant statutory and case law in the pretrial discovery context. The test under the Exemption is whether the documents would be "routinely" or "normally" disclosed upon a showing of relevance. Although, in both civil and criminal cases, the courts have been reluctant to give a third party access to the presentence report prepared for some other individual in the absence of a showing of special need, a similar restriction on discovery is not applicable when the individual requesting discovery is the subject of the report. The thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks strongly against the existence of a Government privilege when the disclosure request is from the subject of the report. In this context, nothing in the case law or Exemption 5 prevents the conclusion that disclosure of presentence reports to the individual who is the subject of the report is "routine." FTC v. Grolier Inc., 462 U. S. 19, distinguished. Pp. 486 U. S. 11-14.

806 F.2d 1411, affirmed. chanrobles.com-red

Page 486 U. S. 3

REHNQUIST, C.J.,delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 486 U. S. 15. KENNEDY, J., took no part in the consideration or decision of the case.