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, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   The Solicitor General, on behalf of the Department of Justice, the
United States Parole Commission, and the Warden of the Federal
Correctional Institution at Pleasanton, California, /1/ petitions for
a writ of certiorari to review the judgment of the United States Court
of Appeals for the Ninth Circuit in this case.

                      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) 522.  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
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-15a) is
reported at 806 F.2d 1411.  The orders of the district courts (App.,
infra, 16a, 17a-22a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 30,
1986.  /2/ 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. 4203(a)(1), 4205(e), 4207 and
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 App., infra, 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

   This case presents the question whether a presentence report that
was prepared by the probation service for use by the district court at
sentencing, and was then transmitted to the United States Parole
Commission for its use in making parole determinations about the
prisoner, is subject to mandatory disclosure by the Parole Commission
under the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. III)
552.

         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 when the defendant in a federal criminal prosecution has been
found guilty, the probation officer must make a presentence
investigation and submit a report to the court before the imposition
of sentence, unless the defendant waives that requirement or the court
finds that the record already contains sufficient information to
permit a meaningful exercise of its sentencing discretion.  /3/ 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).

   Rule 32(c)(3)(A) provides that, 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 a
written or oral summary and afford the defendant and his counsel an
opportunity to comment upon the summary.  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 evidence 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.  A written record of any such
finding or determination must accompany the copy of the report that is
subsequently transmitted to the Bureau of Prisons or the Parole
Commission.  Fed. R. Crim. P.32(C)(3)(D);  see page 5, infra.

   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 to read
his presentence report (except for portions that may be summarized)
prior to sentencing, the defendant has no right to retain a copy of
the report itself unless the court affirmatively authorizes him to do
so.  In addition, 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.  See pages 11-12, 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 imprisionment, 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. See 18 U.S.C. 4202.  In making a
parole decision, the Commission is required to consider the
presentence report (18 U.S.C. 4207(3)), as well as reports submitted
by the correctional institution, the prisoner's criminal record, any
recommendation by the sentencing court, and the results of various
examinations.  18 U.S.C. 4207.  Accordingly, it is "the duty of the
various probation officers and government bureaus and agencies" 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.

   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, 524.10, 524.12(e)), appropriate treatment programs, and his
eligibility for furloughs and other 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.
1613, 1679 (1980).  Although Congress has not by law required the
probation officers to furnish presentence reports to the Bureau of
Prisons, they have done so for many years and Fed. R. Crim.
P.32(c)(3)(D) now expressly endorses that practice.  See Fennell &
Hall, supra, 93 Harv. L. Rev. at 1679;  97 F.R.D. 245, 306, 308 (1983)
(advisory committee note on 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 closely coordinated with that of the Commission.
 For example, although 18 U.S.C. 4205(e) requires the probation
officer to furnish the 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 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 since the Commission's file consists mainly
of documents furnished to it by the Bureau of Prisons, access to
documents used by the Commission ordinarily can be accomplished by
disclosure of documents in the prisoner's institutional file.  28
C.F.R. 2.55(a)(1).  Under settled practices pursuant to 18 U.S.C.
4208(b), the prisoner may only read the copy of his presentence report
in the institutional file and may not receive a copy of it.  See also
28 C.F.R. 2.55(a)(3).  /4/ In addition, the Parole Commission's
regulations governing disclosure of documents from its own files
provide 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).  The Parole Commission thus
defers to the decision of the sentencing court, pursuant to Fed. R.
Crim. P. 32(c)(3)(E), as to whether the prisoner will be permitted to
obtain a copy of his presentence report after sentencing.

                  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 office 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 (App., infra, 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, /5/
Wallace filed a request with the Parole Commission for all 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 additional records that were already available 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 a copy of her presentence
report.  By order dated September 6, 1985, the district court ordered
the Parole Commission to release a copy of the presentence report to
her under the FOIA (App., infra, 17a-22a).

   2. The court of appeals consolidated the government's appeals in
the two cases and affirmed the judgment in each (App., infra, 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 procedures implementing the
"reasonable access" requirement of the Parole Act (18 U.S.C. 4208(b))
confer a right only to read the report, not to receive 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)).  App., infra, 9a-14a.  In so doing, the court
acknowledged (id. at 10a) that its holding conflicted with Durns v.
Bureau of Prisons, 804 F.2d 701 (D.C. Cir. 1986).

   The court of appeals recognized that Exemption 5 protects those
documents that are "'normally privileged in civil discovery'" (App.,
infra, 10a, quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975)) and that the courts have uniformly held that presentence
reports are privileged from disclosure to third parties "'unless
lifting confidentiality is required to meet the ends of justice'"
(App., infra, 11a-12a & n.6, quoting United States v. Figurski, 545
F.2d 389, 391 (4th Cir. 1976)).  But the court held that those
decisions do not justify withholding the report from the prisoner,
because he is permitted by Rule 32(c)(3)(A) and 18 U.S.C. 4208(b) to
inspect the report prior to his sentencing and parole hearing (App.,
infra, 12a).

   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 the prisoner's
right to obtain a copy of it.  On this view, the court reasoned that
Rule 32(c) and 18 U.S.C. 4208 do not exempt all information in a
presentence report from disclosure, 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 a 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.  App., infra, 7a-9a.  /6/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals clearly erred in holding that copies of
presentence reports in the possession of the Parole Commission are
subject to mandatory release under the FOIA.  A document is privileged
under Exemption 5 if, as is true of a presentence report, it would not
be routinely available in civil discovery.  Presentence reports have
always been treated as highly confidential documents, in order to
assure that sources will not be deterred from furnishing information.
Thus, under Fed. R. Crim. P. 32(c)(3)(E), even the defendant cannot
retain a copy of the report after sentencing unless the court, in its
discretion, permits him to do so.  It is also well settled that a
third party cannot obtain a copy of the presentence report absent a
showing of particularized need.  In view of this strict control over
dissemination of the report by the originating court, it is obvious
that Congress did not contemplate that the copy of the report that is
furnished to the Parole Commission would be subject to mandatory
release to members of the public at large under the FOIA.

   The result should be no different in this case merely because the
FOIA requesters are the subjects of the particular presentence reports
at issue.  Under the FOIA, the question is whether the document must
be released to any member of the public, not to a person who might
claim a special interest in its contents.  Respondents therefore have
no special standing under the FOIA to obtain copies of their
presentence reports.  In Fed. R. Crim. P. 32(c) and 18 U.S.C. 4208(b),
Congress gave the subject of a presentence report a special but
limited right of access to the report in those circumstances -- prior
to sentencing and prior to a parole hearing -- in which he might have
a particular need to read it.  A prisoner cannot circumvent the
limitations on that right of access by requesting a copy of the report
under the FOIA, when the FOIA grants no such right to the general
public.

   As the court of appeals recognized, the decision below squarely
conflicts with that of the District of Columbia Circuit in Durns v.
Bureau of Prisons, 804 F.2d 701 (1986), and the question of the
availability of presentence reports under the FOIA is a recurring one.
 The decision below also undermines the confidentiality of presentence
reports that is essential to the ability of probation officers to
gather necessary information about the defendant's background for use
by the sentencing court, Parole Commission, and Bureau of Prisons.
Review by this Court is therefore warranted.

   1. Presentence reports in the possession of the Parole Commission
and Bureau of Prisons are not subject to mandatory disclosure under
the FOIA.  A straightforward application of settled principles
establishes that presentence reports are protected by Exemption 5 of
the FOIA.  In addition, in view of the express provisions in Rule
32(c) and 18 U.S.C. 4208 for limited access to presentence reports,
they are protected by Exemption 3 as well.

   a. Exemption 5 of the FOIA 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).  It is well settled that "Exemption 5
incorporates the privileges which the government enjoys under the
relevant statutory and case law in the pre-trial discovery context."
Renegotiation Bd. 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 (1983).  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).  Indeed, 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, 1172-1176 (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, 820 (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).  /7/

   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. Burea 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. 241,
247-250 (1949);  Fennel & Hall, supra, 93 Harv. L. Rev. at 1684-1685).
 To date the decisions recognizing a privilege for presentence reports
have involved efforts to obtain a presentence report from the
sentencing court.  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 that probation officers furnish
presentence reports to the Parole Commission (18 U.S.C. 4205(e)), it
must have intended that the privilege attaching to the report while it
remains a court document would continue after the transmittal.  Durns
v. Bureau of Prisons, 804 F.2d at 705.  /8/

   Because the copy of a presentence report in the possesion of the
Bureau of Prisons or Parole Commission would be privileged from
disclosure in civil discovery in litigation with either agency, it is
protected by Exemption 5 from mandatory disclosure under the FOIA.
That protection is not undermined by the fact that some courts have
stated that a particular litigant might be able to overcome a claim of
privilege in civil discovery by showing that the ends of justice
require disclosure of the 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 test under
Exemption 5 is whether the documents would be 'rountinely' 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.  "This result, by establishing a discrete category of exempt
information, implements the congressional intent to provide 'workable'
rules." FTC v. Grolier, Inc., 462 U.S. at 27, quoting S. Rep. 813,
89th Cong., 1st Sess. 5 (1965);  H.R. Rep. 1497, 89th Cong., 1st Sess.
5 (1965);  H.R. Rep. 1497, 89th Cong., 2d Sess. 2 (1966).  Even if a
particular litigant might 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.  They
therefore may be withheld from the public under Exemption 5.  /9/

   b. The court of appeals in this case did not dispute that
presentence reports are ordinarily privileged from discovery under the
decisions discussed above.  See App., infra, 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 purposes of the FOIA and Exemption 5.

   It is true that the subject of a presentence report has a limited
right of access to the report in certain circumstances under Fed. R.
Crim. P. 32(c) and 18 U.S.C. 4208(b).  See pages 17-20, infra.  But
even if we assume arguendo that these special statutory provisions
indicate that the subject of the report also would have a special
right of access to the report outside of the sentencing or
parole-hearing context -- specifically, in discovery in litigation
with the Parole Commission or Bureau of Prisons (but see Harris v.
Nelson, 394 U.S. 286, 297-300 (1968)) -- it does not follow that he
has a right to obtain a copy of the report under the FOIA.  "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.  The court below therefore erred in
fashioning a special exception to the privilege for presentence
reports that is incorporated into Exemption 5.  /10/

   The principle that an asserted special interest or status of the
requester does not aford him a unique right of access to documents
under the FOIA is not confined to Exemption 5.  The provision of the
FOIA that prescribes the basic duty of disclosure provides that each
agency "shall make avaible to the public" the categories of
information to which it applies (5 U.S.C. 552(a) (emphasis added)).
See EPA v. Mink, 410 U.S. 73, 79, 92 (1973).  Similarly, 5 U.S.C.
552(a)(3), at issue here, requires that if the requested records have
not already been published 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"
(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).
Accordingly, the relevant question under the FOIA is whether the
document must be made available to any member of the public upon
request.  Correspondingly, if one of the nine exemptions applies, the
document may be withheld from any and all members of the public,
irrespective of any particular person's asserted special status or
interest.  Id. 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);  1 K.
Davis, Administrative Law Section 5.6 (2d ed. 1978).

   c. The decision of the court of appeals not only subverts the basic
thrust of the FOIA by recognizing a unique right of access for
particular members of the public;  it also allows and indeed
encourages circumvention of the limited access procedures that
Congress specifically fashioned for those individuals.  Prior to 1975,
there was no requirement in Fed. R. Crim. P. 32(c) that the defendant
be permitted to read his presentence report prior to sentencing, much
less to retain a copy of it after sentencing.  A proposal to grant the
defendant a right to review the report was included in Rule 32(c) as
originally proposed in 1944, but it was deleted from the final
version, in part because of concerns expressed by judges that sources
of information might be deterred from cooperating.  Fennell & Hall,
supra, 93 Harv. L. Rev. at 1632.  The disclosure of presentence
reports to the defendant was again the subject of "heated controversy"
prior to the 1966 Amendments to Rule 32(c).  See advisory committee
note to 1966 Amendments, 18 U.S.C. App. at 625.  Although Rule
32(c)(2) was amended in that year to provide that the court "may
disclose" some or all of the presentence report to the defendant or
his counsel prior to sentencing, disclosure was not made mandatory.
Fennell & Hall, supra, 93 Harv. L. Rev. at 1633;  United States v.
Woody, 567 F.2d 1353, 1358-1360 (5th Cir.), cert. denied, 436 U.S. 908
(1978).

   In 1975, Rule 32(c)(3)(A) was amended to require for the first time
that the presentence report be made available for inspection by the
defendant or his counsel upon request.  And in 1983, that rule was
further amended to provide that even in the absence of a specific
request, "the court shall permit the defendant and his counsel to read
the report of the presentence investigation" prior to the imposition
of sentence (emphasis added).  As originally proposed by this Court in
1974, Rule 32(c)(3)(D)(now Rule 32(c)(3)(E) expressly provided that
any copies of the presentence report 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" 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)).
However, the proposed rule was amended and enacted into law by
Congress so as to provide that copies of the presentence report 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." Pub. L. No.
94-64, Section 3(34), 89 Stat. 376 (redesignated in 1983 as Fed. R.
Crim. P. 32(c)(3)(E)).  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 parties 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).

   Thus, the text and legislative history of Rule 32(c)(3)(E)
unambiguously demonstrate that Congress -- like this Court in
proposing its version of the rule -- deliberately declined to confer
on the subject of a presentence report a right to obtain a copy of
that report.  The decision of the court of appeals that the subject of
a presentence report has a right to obtain a copy of the very same
report under the FOIA cannot be squared with that deliberate judgment
by Congress and this Court.  Indeed, the Court has repeatedly stressed
that the FOIA cannot be utilized to circumvent such limitations on
discovery.  See United States v. Weber Aircraft Corp., 465 U.S. at
801-802;  Baldridge 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 Bd. v.
Bannercraft Clothing Co., 415 U.S. 1, 24 (1974).

   Nothing in the Parole Act suggests that the prisoner should have a
right under the FOIA to receive a copy of the presentence report that
was denied to him by the court pursuant to the express authorization
in 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 to be relied upon by the Parole Commission that is directly
parallel to Fed. R. Crim. P. 32(c).  It would have been surprising if
Congress had chosen a different course, because Congress considered
the Parole Act and the 1975 amendments to Rule 32(c) at the same time
and the Parole Commission's decision regarding the portion of the
sentence that the prisoner must serve in prison is, in effect, a
continuation of the sentencing process.  C.f. United States v.
Addonizio, 442 U.S. 178, 188-190 (1979).

   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.  18 U.S.C. 4208(b).  Although this language
requires that the prisoner be permitted to read the presentence
report, as he would already have been permitted to do prior to
sentencing, 18 U.S.C. 4208(b) does not by its terms confer a right to
obtain a copy of the report.  Whether the prisoner may do so is
therefore a question committed to the discretion of the Commission,
just as Rule 32(c)(3)(E) commits that decision to the discretion of
the sentencing court.  Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S.
837, 843-844 (1984).  From the outset, the Parole 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 pages 5-6, 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 effect of
this policy has been for the Parole Commission to defer to the
judgment of the sentencing court as to whether the prisoner will
receive a copy of the report.

   The Commission has express authority under 18 U.S.C. 4203(a) to
promulgate regulations for the implementation of its statutory powers,
and those regulations must be sustained unless they are arbitrary and
capricious.  Chevron U.S.C. Inc. v. NRDC, In., 467 U.S. at 844;
Heckler v. Campbell, 461 U.S. 458, 466 (1983);  5 U.S.C. 706(2)(A) and
(C).  The Commission's decision to follow the approach adopted by
Congress and this Court for the very same documents clearly was not
arbitrary and capricious.  Indeed, that decision is affirmatively
supported by another feature of 18 U.S.C. 4208(b), 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).  The legislative history of the
Parole Act shows that this parallel to Rule 32(c) was deliberate.  See
H.R. Conf. Rep. 94-838, 94th Cong., 2d Sess. 29 (1976);  S. Rep.
94-648, 94th Cong., 2d Sess. 29 (1976);  121 Cong. Rec. 15705 (1975)
(remarks of Rep. Drinan).  It accordingly was entirely reasonable for
the Commission likewise to follow Rule 32(c) and its implementation by
the courts with respect to another aspect of disclosure -- the release
of a copy of the presentence report.  Just as the FOIA cannot be used
to circumvent the restrictions on release of a copy of a presentence
report under Rule 32(c)(3)(E), it cannot be used to circumvent the
identical limitations under the administrative access provisions in 18
U.S.C. 4208(b) and implementing regulations.  Renegotiation Bd. v.
Bannercraft Co., 415 U.S. at 24.  /11/

   d. The court of appeals also erred in failing to recognize that, in
view of Rule 32(c)(3)(E) and 18 U.S.C. 4208(b), presentence reports
may also be withheld under Exemption 3 of the FOIA.  Exemption 3
applies 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).  CIA v. Sims, 471 U.S.
159, 167-168 (1985).  Rule 32(c)(3)(E) expressly refers to presentence
reports and authorizes the withholding of a copy from the subject of
the report.  Similarly, 18 U.S.C. 4208(b) addresses disclosure of "a
report or other document" to be relied upon by the Commission.  The
term "report" obviously refers to the presentence report, which the
Commission is required by 18 U.S.C. 4207(3) to consider and which
ordinarily is the most important source of information available to
the Commission.  Against the background of the parallel provisions of
Rule 32(c), and as construed and applied by the Commission, 18 U.S.C.
4208(b) likewise grants the prisoner only a limited right of access to
his presentence report and authorizes the Commission to withhold a
copy of the report from him.  Rule 32(c) and 18 U.S.C. 4208(b) of
course must also embody the broader premise that the presentence
report may be withheld from the public at large.  But whatever may be
the application of Exemption 3 to a FOIA request by a third party,
Rule 32(c)(3)(E) and 18 U.S.C. 4208(b) qualify as Exemption 3 statutes
that permit the withholding of a copy of the presentence report from
the subject of the report.  For this reason, even if the court of
appeals were correct that the privilege against disclosure of
presentence reports does not permit a copy of the report to be
withheld from the subject under Exemption 5, the court of appeals
erred in holding (App., infra, 7a-9a) that the Commission was without
authority to withhold a copy of the report from the prisoner under
Exemption 3.  But see Crooker v. Parole Comm'n, 760 F.2d at 2-3.

   2.a. The ruling by the court of appeals in this case squarely
conflicts with that of the District of Columbia Circuit in Durns v.
Bureau of Prisons, which sustained the withholding of presentence
reports under Exemption 5.  /12/ The question of the availability of
presentence reports under the FOIA is also currently pending before
two other courts of appeals.  Morgan v. Miller, No. 86-5501(3d Cir.)
(to be argued Feb. 24, 1987);  Lindsey v. Bureau of Prisons, remanded,
469 U.S. 1082 (1984), on remand, No. 86-5612 (11th Cir.);  and Scott
v. Parole Comm'n, No. 83-8805 (11th Cir.).  We have been informed by
the Parole Commission and Bureau of Prisons that more than ten
additional cases are pending in the district courts, and that each
agency receives an average of ten FOIA requests daily for documents
that include the presentence report.  The Parole Commission, Bureau of
Prisons, district courts, probation officers, and federal prisoners
should be given a clear answer to this frequently recurring question.

   b. Review also is warranted because the decision below compromises
the confidentiality of presentence reports by requiring the release of
copies notwithstanding the determinations by the sentencing courts and
the Parole Commission to withhold them.  The Commission unanimously
reaffirmed its policy on August 9, 1985, by rejecting a petition for
rulemaking filed by the Public Citizen Litigation Group, which
proposed that the Commission order the release of copies of
presentence reports to prisoners and subjects of the reports.  App.,
infra, 23a-34a.

   By letter dated June 17, 1985 (App., infra, 24a-27a), the Chief of
the Division of Probation of the Administrative Office of the United
States Courts submitted comments opposing the Public Citizen proposal.
 The letter stated that "it is the position of the Probation Committee
of the Judicial Conference of the United States, as well as the
Probation Divison of the Adiministration 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 letter
explained that sources of information are informed that although a
presentence report will be made available to the defendant to read,
broader disclosure will not be made without the court's permission
(ibid.).  It then continued (id. at 25a, 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. * * *

                     * * * *

         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 court of appeals in this case completely disregarded this
considered judgment of the officials who are responsible for the
preparation of presentence reports and the courts that rely on them -
a judgment to which the Parole Commission recently and unanimously
deferred by declining to alter its longstanding policy barring the
furnishing of copies of presentence reports to prisoners and other
subjects of the reports.  Review by this Court is therefore clearly
warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   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

   FEBRUARY 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 (App., infra, 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).  Petitioner Turnbo therefore was
not a proper defendant as this case was permitted to proceed under the
FOIA.

   /1/ See page ii note *, supra.

   /2/ The practice of the Court of Appeals for the Ninth Circuit is
to issue a copy of its mandate as the judgment.  Because the court of
appeals has stayed the issuance of its mandate, no separate document
constituting the court's judgment has yet been issued.

   /3/ The probation officer performs this and other functions under
the direction of the district court.  18 U.S.C. 3654.

   /4/ Under 18 U.S.C. 4208(b), a prisoner may be denied access to a
document to the extent it contains information that falls within one
of three categories that parallel the three exceptions in Fed. R.
Crim. P. 32(c)(3)(A) for material that may be withheld from the
defendant prior to sentencing.  See page 3, supra.  In that event, the
Bureau of Prisons or the originating agency must furnish the prisoner
with a summary of the information withheld.  18 U.S.C. 4208(c);  28
C.F.R. 2.55 (c) and (d).

   /5/ Respondent Wallace was released on parole on April 17, 1985
(App., infra, 17a), and completed serving her sentence on August 17,
1986.

   /6/ 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 person privacy." 5 U.S.C. 552(b)(6).

   /7 For the most part, 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 the report 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, indeed, presentence reports have also 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 (citation omitted).  See also
United States v. Krause, supra;  Hancock Bros. v. Jones, supra.
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) (matters occurring before a grand jury may be
disclosed only on a showing of particularized need).

   /8/ At one time, the Department of Justice took the position that
copies of presentence reports in the possession of the Bureau of
Prisons and Parole Commission were court documents, not "agency
records" subject to 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. Dep't of Justice, 773 F.2d 1343 (9th Cir.
1984);  Lykins v. Dep't of Justice, 725 F.2d 1455 (D.C. Cir. 1984);
Carson v. Dep't 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, supra.  The Solicitor General further argued (id. at
18-20), however, that presentence reports are exempted 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 Comm'n, 760 F.2d 1 (1985).
The Eleventh Circuit has not yet rendered a decision on remand in
Lindsey.

   /9/ The legislative history of the Parole Act supports the
conclusion that Congress did not intend a presentence report to be
available to the public.  The House of Representatives deleted a
provision that would have exempted the Parole Commission from the
requirement (now embodied in 5 U.S.C. 552 (a)(5)) that each agency
having more than one member must make available for public inspection
a record of the final vote of each member.  121 Cong. Rec. 15715
(1975).  Respresentative 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." Ibid.  The
District of Columbia Circuit observed in Carson v. Dep't of Justice,
supra, that although this comment 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).  The court
of appeals in the instant case failed to discuss this legislative
history.

   /10/ "(T)he use of the indefinite article in Exemption 5 (i.e.,
'would not be availabe 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
(requester)." Brockway v. Dep't of the Air Force, 518 F.2d 1184, 1192
n.7 (8th Cir. 1975).

   /11/ For the same reason, the court of appeals erred in holding
(App., infra, 12a n.7) that Rule 32(c) and 18 U.S.C. 4208(b)
constitute a "waiver" of the privilege against release of presentence
reports.  Those provisions furnish only a limited right of disclosure
on those occasions that Congress determined gave rise to a special
need on the part of the subject of a presentence report to read it.
They do not compel the disclosure of the contents of the report even
to the defendant or prisoner in other circumstances.  A fortiori they
do not "waive" the Commission's right to withhold a copy of the
report, which is what respondents seek in these suits under the FOIA.

   In addition, and contrary to the court of appeals' suggestion
(App., infra, 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.

   /12/ The requesters' petition for rehearing en banc in Durns was
denied on December 23, 1986, by a 6-5 vote.  Durns v. Bureau of
Prisons, No. 85-5704.

   APPENDIX