author:
Chief Justice Rehnquist
      Justice Scalia,

text:
    UNITED STATES DEPARTMENT OF JUSTICE et al. v. JULIAN et al.
    No. 86-1357.
    Argued January 19, 1988
    Decided May 16, 1988

      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. 15. Kennedy, J., took no part in the consideration or decision of the case.

      Edwin S. Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, Leonard Schaitman, and Sandra Wien Simon.

      Eric R. Glitzenstein argued the cause for respondents. With him on the briefs were Katherine A. Meyer and Alan B. Morrison.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Respondents in this case are prison inmates who sued under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, for disclosure of their presentence investigation reports. These reports are prepared by a probation officer for use by the district court at sentencing; they contain background information about a defendant and the circumstances of his offense. After sentencing, the reports are typically transmitted to the Bureau of Prisons and then to the Parole Commission for eventual use in determining whether a prisoner should be released on parole. The courts below ordered petitioners — the Department of Justice and the Parole Commission — to disclose the reports. The question we are now called on to decide is whether the FOIA requires that these presentence investigation reports be disclosed by petitioners or whether the reports fall under one of the FOIA’s statutory exemptions.

Rule 32(c) of the Federal Rules of Criminal Procedure outlines the requirements for preparation and disclosure of a presentence report for a criminal defendant who has been adjudged guilty. Rule 32(c)(1) provides that before imposition of sentence the probation service of the district court shall make an investigation into the defendant’s background and the circumstances of the offense. The results of the investigation are compiled into a report, which under Rule 32(c)(2) must contain the defendant’s prior criminal record, a description of the circumstances of the offense and the defendant’s behavior, a discussion of the loss or harm suffered by any victims of the offense, and any other information that might aid the court in sentencing, including the restitution needs of the victim.

The Rule also specifies the procedure by which the court is to disclose the report and its contents to a defendant. Rule 32(c)(3)(A) states that “[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report . . . exclusive of any recommendation as to sentence.” The court may not disclose, however, portions of the report that contain “diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm,” physical or otherwise, to the defendant or other persons.” Ibid. If the report does contain this type of information, the court is required to give orally or in writing a summary of the factual information that has been withheld and that is to be relied on in determining an appropriate sentence. Once the report has been disclosed, the defendant and his counsel are to be given an opportunity to comment on the report and to introduce evidence showing that the report contains factual inaccuracies. Rule 32(c)(3)(E) also provides that “[a]ny copies of the pre-sentence 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.”

After the defendant is sentenced, a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant’s classification as an inmate, see 28 CFR §§524.10, 524.12(e) (1987), choosing an appropriate treatment program, or deciding eligibility for various privileges. See Brief for Petitioners 7 (citing Fennell & Hall, Due Process at Sentencing, 93 Harv. L. Rev. 1615, 1679 (1980)). A copy of the presentence report is also transmitted to the United States Parole Commission pursuant to § 2(e) of the Parole Commission and Reorganization Act of 1976 (Parole Act), 18 U. S. C. § 4205(e), which makes it the “duty of the . . . probation officers” to furnish “information available to such officer . . . concerning any eligible prisoner or parolee” to the Commission upon request. The Parole Commission is then required by statute to consider the report, among other documents, in making a parole decision. § 4207(3).

The Parole Act also requires that, at least 30 days before a scheduled parole hearing, the prisoner be provided with “reasonable access to [the] report or other document to be used by the Commission in making” its parole determination. § 4208(b). As in Rule 32(c)(3)(A), however, the Act exempts from this disclosure requirement the same three categories of information — diagnostic opinions, confidential information, and potentially harmful information — that were protected from disclosure by the district court. The Act also requires that if any such information is excluded from disclosure, it is the duty of the Commission (or any other agency) “to summarize the basic contents of the material withheld . . . and furnish such summary to the inmate.” §4208(c)(3); see also 28 CFR § 2.55(c) (1987). The Parole Act does not contain, however, any express requirement that the inmate return all or any copies of the documents to which he is given “reasonable access.”

The present case stems from two separate requests by individual inmates for copies of their presentence reports. In 1984, respondent Kenneth Michael Julian, an inmate in federal prison in Arizona, asked the Parole Commission to furnish him with a copy of his presentence report. When his request was denied, Julian brought this FOIA suit against the Department of Justice in the United States District Court for the District of Arizona. In a brief order, the District Court granted Julian’s motion for summary judgment and ordered the Government to comply with his request. In 1984, respondent Margaret J. Wallace, then an inmate in federal prison in California, filed a FOIA request with the Parole Commission for all of the Commission’s records pertaining to her. The Commission honored her request in large part, but refused to turn over a copy of her presentence report. Wallace then filed suit against the Parole Commission in the United States District Court for the Northern District of California. This court, too, ordered that the pre-sentence report be released.

The two cases were consolidated on appeal before the United States Court of Appeals for the Ninth Circuit, which affirmed the judgment in each. 806 F. 2d 1411 (1986). After first stating that the presentence reports are “agency records” for purposes of the FOIA, the court rejected the Government’s contentions that presentence reports are exempt from disclosure under both 5 U. S. C. § 552(b)(3) (Exemption 3) and § 552(b)(5) (Exemption .5). While certain parts of the presentence reports may be withheld pursuant to Rule 32(c)(3) and the Parole Act, 18 U. S. C. § 4208(c), the court found that “neither Exemption 3 nor Exemption 5 provides a blanket exemption for presentence investigation reports” when the FOIA request is made by the subject of the presentence report. 806 F. 2d, at 1416. The court also rejected the Government’s argument that the FOIA’s disclosure requirements were superseded by the special statutory procedures for obtaining presentence reports set out in Rule 32(c) and the Parole Act. Because this decision of the Court of Appeals conflicts with an earlier decision of the United States Court of Appeals for the District of Columbia Circuit, see Durns v. Bureau of Prisons, 256 U. S. App. D. C. 156, 804 F. 2d 701, rehearing en banc denied, 257 U. S. App. D. C. 30, 806 F. 2d 1122 (1986), cert. pending, No. 86-6550, and because it raises several important statutory issues, we granted certiorari, 482 U. S. 926 (1987), and we now affirm.

The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b). See United States v. Weber Aircraft Corp., 465 U. S. 792, 793-794 (1984). Congress created these exemptions because it “realized that legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U. S. 615, 621 (1982); see also CIA v. Sims, 471 U. S. 159, 167 (1985). Nonetheless, “[t]he mandate of the FOIA calls for broad disclosure of Government records,” id., at 166, and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed, see Abramson, supra, at 630; Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). With this principle in mind, we turn to consider whether, as the Government contends, presen-tence investigation reports are exempted from disclosure under either FOIA Exemption 3 or Exemption 5.

Exemption 3 of the FOIA permits agencies to withhold matters that are

“specifically exempted from disclosure by statute . . . , 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.” § 552(b)(3).

The Government argues that this Exemption applies to pre-sentence reports because Rule 32(c) and the Parole Act are statutes that specifically exempt the reports from disclosure and that “refer to particular types of matters to be withheld.” To some extent this is clearly true: both the Rule and the Parole Act specifically exempt from disclosure any information in the report that relates to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties. See Rule 32(c)(3)(A); 18 U. S. C. § 4208(c). This information is thus exempt from disclosure under the FOIA.

Beyond this, however, neither the Rule nor the Act satisfies the requirements of Exemption 3. Both provisions have been recently changed, 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. For example, in 1966, Rule 32(c) was amended to give sentencing courts the discretion to disclose the reports to defense attorneys and prosecutors. The Advisory Committee Notes indicate that the purpose of this amendment was:

“[T]o make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” 18 U. S. C. App., p. 625, 39 F. R. D. 69, 194 (1966).

Congress amended the Rule again in 1974, this time changing it to state that “[bjefore imposing sentence the court shall upon request permit the defendant, or his counsel... , to read the report of the presentence investigation,” Pub. L. 94-64, 89 Stat. 376 (emphasis added). In 1983, after an empirical study revealed that “the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information,"Advisory Committee Notes, 18 U. S. C. App., p. 996 (1982 ed., Supp. IV), 97 F. R. D. 245, 307 (1983), Congress made additional changes in the Rule. It made disclosure of the report mandatory by eliminating the request requirement; it authorized disclosure to both the defendant and defense counsel; and it required that disclosure be made at a reasonable time before sentencing.

All of this makes clear that the Rule serves two purposes: it prevents disclosure of the three categories of information described above, but it facilitates disclosure of the balance of the report to the defendant. Similarly, the provision of the Parole Act dealing with presentence reports is also designed to ensure that much of the information on which a parole decision is to be based, including the presentence report, be disclosed to the potential parolee. In line with this intent, Congress expressly required that all prisoners be furnished with “reasonable access” to the pertinent documents at least 30 days before a parole hearing. § 4208(b).

The Government argues that while Congress did intend that defendants be given some access to their presentence reports, it also sought to limit that access by requiring that all copies of reports that are furnished pursuant to Rule 32(c) be returned to the court, unless the court directs otherwise. Fed. Rule Crim. Proc. 32(c)(3)(E). As stated in the Advisory Committee Notes, the purpose of this provision was “to insure that [the reports] do not become available to unauthorized persons.” 18 U. S. C. App., p. 627, 62 F. R. D. 271, 325 (1974). Admittedly this provision does qualify somewhat the defendant’s access to his or her presentence report when that report is furnished by the district court in the context of sentencing, but in our opinion 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 of the FOIA. And, the Parole Act, which governs the Parole Commission’s duties in regard to disclosure of presentence reports, does not itself contain a similar provision. The Act only requires that “reasonable access” to the report be given; there is no express limitation on an inmate’s power to retain a copy of the report. Even if we assume, as the Government suggests, that the Parole Act implicitly adopts the restriction contained in Rule 32(c)(3)(E), this would still not convert § 4208 into an Exemption 3 statute. Exemption 3 permits an agency to withhold only those parts of a presentence report that are expressly protected by Rule 32(c)(3)(A) or 18 U. S. C. § 4208(c); the remaining parts of the reports are not covered by this exemption, and thus must be disclosed unless there is some other exemption which applies to them.

The Government also relies on Exemption 5 of the FOIA to support withholding of the requested documents. This Exemption 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.” 5 U. S. C. § 552(b)(5). In the past, we have interpreted this somewhat Delphic provision as “incorporating] 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); see also FTC v. Grolier Inc., 462 U. S. 19, 26-27 (1983); Weber Aircraft Corp., 465 U. S., at 799. As we stated in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 149 (1975), Exemption 5 “exempt[s] those documents, and only those documents, normally privileged in the civil discovery context.” See also H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (the purpose of Exemption 5 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”). Accordingly, “[t]he test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Grolier, supra, at 26.

Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. See, e. g., United States v. McKnight, 771 F. 2d 388, 390 (CA8 1985); United States v. Anderson, 724 F. 2d 596, 598 (CA7 1984); United States v. Charmer Industries, Inc., 711 F. 2d 1164, 1173-1176 (CA2 1983); Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229 (ND Cal. 1968). As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. See, e. g., United States v. Martinello, 556 F. 2d 1215, 1216 (CA5 1977). A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. See, e. g., Charmer, supra, at 1174-1176 (following Hancock Brothers, Inc. v. Jones, supra, in concluding that a report may not be disclosed “in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice”).

There is no indication, however, that similar restrictions on discovery of presentence investigation reports have been recognized by the courts when the individual requesting discovery is the subject of the report. Indeed, there seem to be no reported judicial decisions on the subject. By itself, of course, the fact that there are no cases directly on point with respect to this particular category of requests for information is not conclusive evidence that no discovery privilege should be recognized in this situation. From our perspective, however, it appears that the reasoning of the cases denying disclosure to third-party requesters would have little applicability to a request by a defendant to examine his own report, particularly in light of Rule 32(c)’s specific mandate that the report be disclosed to the defendant during sentencing. We note in addition that most privileges of the sort described in Exemption 5 arise as a result of judicial decision. See, e. g., United States v. Reynolds, 345 U. S. 1, 7-8 (1953). But unless the privilege is constitutionally rooted, Congress may determine for itself which privileges the Government may avail itself of and which it may not. Here, the thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks so strongly against the existence of a privilege on the part of the Government when the request is from the subject of the report that we think it accurate to say that Congress has strongly intimated, if it has not actually provided, that no such privilege should exist.

The Government contends nonetheless that because Exemption 5 applies to documents that “would not be available by law to a party ... in litigation with the agency” (emphasis added), we cannot construe Exemption 5 in such a way as to make an agency’s duty to disclose a presentence report turn on the nature or identity of the requester. The Government points to our reasoning in Grolier, where we held that documents that were privileged under the work-product doctrine were not “routinely” available for Exemption 5 purposes even though it was possible for some parties seeking discovery to obtain access to the document by showing “substantial need.” 462 U. S., at 27. As we stated, “[wjhether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to ‘routine’ disclosure.” Ibid. Such a result, “by establishing a discrete category of exempt information, implements the congressional intent to provide ‘workable’ rules.” Ibid.; see also EPA v. Mink, 410 U. S. 73, 79 (1973) (the exemptions are “plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed”).

Contrary to the Government’s contention, however, nothing in Grolier, or in the language of Exemption 5, requires that, even though Congress has spoken in the manner that it has, a privilege against disclosure must nonetheless be extended to all requests for these reports, or to none at all. Grolier held that the fact that a claim of privilege might be overridden in a particular case by special circumstances did not mean that discovery was “routinely available” within the meaning of Exemption 5. We reaffirm that holding, but we decline the Government’s invitation to extend i1>to circumstances in which there is no basis for a claim of privilege from disclosure against one class of requesters, although there is a perfectly sound basis for resisting disclosure at the behest of another class of requesters. The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating a claim of privilege under Exemption 5 differently as to one class of those who make requests than as to another class. In this case, it seems clear that there is good reason to differentiate between á 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. As we noted above, there simply is no privilege preventing disclosure in the latter situation. Even under our ruling in Grolier, therefore, discovery of the reports by the defendants themselves can be said to be “routine.”

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

Justice Scalia,

with whom Justice White and Justice O’Connor join, dissenting.

I dissent from today’s decision because in my view it fails to perform the fundamental judicial function of reading the body of enacted laws in such fashion as to cause none of them to be pointless; and because in order to achieve that failure it makes a departure, sure to engender confusion and litigation, from the general principle of the Freedom of Information Act that individuating characteristics of requesters are not to be considered. I address each of these points in turn.

In 1975, Congress approved Rule 32(c)(3)(E) of the Federal Rules of Criminal Procedure, providing that a defendant cannot retain copies of the presentence report unless the sentencing judge (presumably familiar with the dangerousness of the defendant and his associates) specifically directs. Act of July 31, 1975, Pub. L. 94-64, § 2, 89 Stat. 370. In the 1976 Parole Act, Congress adopted a clause completely consistent with this provision, requiring the Parole Commission, at least 30 days before a scheduled parole hearing, to provide the inmate only “reasonable access” to the report — a term that assuredly does not require, and indeed is ordinarily used specifically to make clear that there is not required, retention of the document. Today the Court holds that all this really does not matter, because the defendant can obtain a copy of the report under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, as soon as it is transferred to the Bureau of Prisons and the Parole Commission after his sentencing.

If the FOIA had been adopted after the protective provisions in question, one could at least argue that there had been a change of heart by Congress, and if not repeal by implication at least frustration by implication. But the fact is that the relevant provision of the FOIA was enacted in its current form in 1967, before the Federal Rule of Criminal Procedure and Parole Act provisions at issue here, Pub. L. 90-23, 81 Stat. 54. Nonetheless, today’s decision converts the Rule 32 requirement that retention be explicitly approved by the sentencing judge into no more than a temporary inconvenience, since the defendant can obtain the document without such approval shortly after his sentencing; and it reduces the Parole Act time and manner limitations (which provide that the duty arises only when a parole hearing has been scheduled, and that the content of the duty is to provide only “reasonable access”) to utter meaninglessness.

I am frank to admit that I cannot readily conceive why allowing a defendant or an inmate to keep a copy of the report is significantly more threatening than allowing him to read and make notes about it. Penal and probationary authorities believed otherwise, however — and apparently continue to believe so, as is evident from the 1985 statement of the Chief of the Division of Probation of the Administrative Office of the United States Courts, opposing a proposal that the Parole Commission provide by rule for routine release of copies of presentence reports:

“[I]t 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.
“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.” Letter from Probation Chief Chamlee to Chairman of Parole Comm’n Baer, June 17, 1985, App. to Pet. for Cert. 25a-26a.

I have no idea whether this is sound, and neither does the Court. But the issue was obviously addressed by Congress, and resolved in favor of restricted access. We should not frustrate that disposition unless the FOIA unavoidably so requires. As I now proceed to discuss, just the opposite is true: A genuine revolution in accepted FOIA principles is required to produce today’s peculiar result.

H»I b-i

It is too well established to warrant extensive discussion— or at least until today has been — that the FOIA is not meant to provide documents to particular individuals who have special entitlement to them, but rather “to inform the public about agency action.” NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 143, n. 10 (1975) (emphasis added). In his foreword to an official Justice Department Memorandum for agency guidance describing the then newly enacted FOIA, Attorney General Clark correctly identified as one of the five key concerns of the Act the goal “that all individuals have equal rights of access.” Attorney General’s Memorandum on Public Information Section of Administrative Procedure Act, United States Department of Justice iv (June 1967) (emphasis added) (hereinafter AG Memorandum). The scholarly commentators agreed:

“The Act’s sole concern is with what must be made public or not made public. The Act never provides for disclosure to some private parties and withholding from others. The main provision of section 3 says that information is to be made available ‘to the public’ and the central provision of subsection (c) requires availability of records to ‘any person.’” Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 765 (1967).

What has been true of the FOIA in general has also been true of Exemption 5 in particular, which exempts from mandatory production “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). As Attorney General Clark’s Memorandum went on to explain, “[t]he effect of exemption (5) is to make available to the general public those internal documents from agency files which are routinely available to litigants, unless some other document bars disclosure.” AG Memorandum 38 (emphasis added). It has long been established that in applying Exemption 5 the individuating characteristics of the particular requester are not to be considered. As the District of Columbia Circuit put it in the leading case, which we have cited with approval, see NLRB v. Sears, Roebuck & Co., supra, at 149, n. 16: “The question for decision is . . . whether ‘“a private party” — not necessarily the applicant — would routinely be entitled to [the agency record] through discovery.’” Sterling Drug Inc. v. FTC, 146 U. S. App. D. C. 237, 244, 450 F. 2d 698, 705 (1971), quoting from Davis, supra, at 796.

We approved this principle in EPA v. Mink, 410 U. S. 73 (1973), a FOIA suit brought by 33 Members of the House of Representatives, saying in regard to Exemption 5 that “the Act [does not], by its terms, permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant.” Id., at 86. It is significant that although one of the most controversial features of the 1974 amendments to the FOIA was the revision of § 552(b)(1) to overturn the holding of Mink regarding Exemption 1, see President’s Message to the House of Representatives Returning H. R. 12471 Without His Approval, 10 Weekly Comp. of Pres. Doc. 1318 (1974), Exemption 5 was left unchanged. We strongly reaffirmed our Mink approach in NLRB v. Sears, Roebuck & Co.:

“Sears’ rights under the Act are neither increased nor decreased by reason of the fact that it claims an interest in the Advice and Appeals Memoranda greater than that shared'by the average member of the public. The Act is fundamentally designed to inform the public about agency action and not to benefit private litigants.” 421 U. S., at 143, n. 10.
“[I]t is not sensible to construe the Act to require disclosure of any document which would be disclosed in the hypothetical litigation in which the private party’s claim is the most compelling. Indeed, the House Report says that Exemption 5 was intended to permit disclosure of those intra-agency memoranda which would ‘routinely be disclosed’ in private litigation, H. R. Rep. No. 1497, p. 10, and we accept this as the law. [Citing Sterling Drug, supra.]” Id., at 149, n. 16.

Again in 1983, we confirmed the basic principle underlying all this, that if an Exemption 5 privilege cannot be asserted against one particular requester, it cannot be asserted against the world:

“The logical result of respondent’s position is that whenever work-product documents would be discoverable in any particular litigation, they must be disclosed to anyone under the FOIA. We have previously rejected that line of analysis.” FTC v. Grolier Inc., 462 U. S. 19, 28.

Most recently, in 1984, we again disregarded the identity and circumstances of the FOIA requester for purposes of making the Exemption 5 determination, expressing the basis for our decision quite simply: “[SJince the Machín privilege [protecting confidential statements made to government air crash safety investigators] is well recognized in the case law as precluding routine disclosure of the statements, the statements are covered by Exemption 5.” United States v. Weber Aircraft Corp., 465 U. S. 792, 799.

In sum, the clear state of the law before today’s decision has been 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 Air Force, 518 F. 2d 1184, 1192, n. 7 (CA8 1975). Or as one of the current FOIA looseleaf services categorically states: “[N]o requester is entitled to greater rights of access under Exemption 5 by virtue of whatever special interests might influence the outcome of actual civil discovery to which he is a party.” J. Franklin & R. Bouchard, Guidebook to the Freedom of Information and Privacy Acts, §1.08[2], p. 1-72 (2d ed., 1987). Thus, it is simply inaccurate for the Court to say that “the reasoning of the cases denying disclosure to third-party requesters would have little applicability to a request by a defendant to examine his own report. . . .” Ante, at 13. The reasoning of the cases, like the reasoning of the scholars and the language of the statute, recognizes no such thing as a “third-party requester,” since it affirms that all FOIA requesters have equivalent status, and equivalent right to the public documents that the FOIA identifies. Nor is the Court’s error corrected by the qualifier that it adds, “particularly in light of Rule 32(c)’s specific mandate that the report be disclosed to the defendant during sentencing.” Ibid. That “mandate” (which in any event, as I have discussed, does not require provision of a retention-copy of the document) cannot be applied without impermissibly adverting to the individuating characteristics of the requester.

The Court’s error is further demonstrated by the provisions of the Privacy Act of 1974, 5 U. S. C. § 552a — which, unlike the FOIA, is intended to provide to a particular individual documents that would not be available to the public at large, namely, documents containing “information about [that] individual.” §552a(a)(4). Why, one might wonder, did not the present respondents seek the requested report under the provisions of that legislation? The answer is § 552a(j)(2)(C), which specifically permits agencies, by regulation, to exclude from available records “reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.” This provision, when combined with the limitations contained in Rule 32 and the 1976 Parole Act, makes it entirely clear that Congress did not mean the FOIA to give these respondents any greater right than the general public to copies of their presentence investigation reports.

Since, as I have confessed earlier, it is not clear to me why providing a copy of the report is so much worse than providing inspection, it may perhaps be that the dire consequences predicted by those who persuaded Congress to adopt the limitations that we today repeal will not ensue. I have no doubt, however, that today’s decision will be a bombshell in the area of FOIA law. Contrary to settled precedent, the Court has adopted the principle that the individuating characteristics of the requester may be taken into account for purposes of one of the most important and frequently invoked exemptions, Exemption 5. To be sure, only a particular individuating characteristic, which the Court takes pains to narrow, is the subject of the present suit. But once we have adopted the principle, we have condemned the lower courts (and, I suppose, ourselves) to an appreciable increase in the volume of FOIA litigation, as one requester after another tests whether some statute, some principle of law, some court rule, justifies taking Ms particular characteristics into account. I respectfully dissent from this unfortunate holding.

       No presentence investigation is required if, with the permission of the court, the defendant waives the report, or if the court finds that there is already sufficient information in the record to enable a meaningful exercise of the court’s sentencing discretion. If the court finds that no report is necessary, it must explain this finding on the record. Fed. Rule Crim. Proc. 32(c)(1).

       This use of the presentenee report by the Bureau of Prisons is not required by statute, although it has apparently been the practice for some time. See Fennell & Hall, 93 Harv. L. Rev., at 1679. Indeed, the Advisory Committee Notes to the 1983 Amendments to Rule 32(e) expressly note the practice of transmitting the report to the Bureau of Prisons. See 18 U. S. C. App., p. 995 (1982 ed., Supp. IV), 97 F. R. D. 245, 306, 308 (1983).

       The Comprehensive Crime Control Act of 1984, Pub. L. 98-473, Tit. II, ch. 2, 98 Stat. 1987, has significantly revised the federal system of sentencing that was in place at the time the Parole Act was adopted in 1976. Most importantly, the Crime Control Act mandates that all sentences of imprisonment shall be for fixed terms, see 18 U. S. C. §§3581, 3582(a) (1982 ed., Supp. IV), and eliminates the possibility of release on parole prior to the end of a sentence, §§ 3621(a), 3624(a). Accordingly, the Crime Control Act also provided that the Parole Act was to be repealed on November 1, 1987, when the new sentencing provisions went into effect. The Parole Commission will continue to operate for five years, however, in order to make parole decisions for individuals sentenced before November 1, 1987. During this 5-year period, the Parole Act will remain in effect as to those individuals. Pub. L. 98-473, § 235(b)(1)(A), 98 Stat. 2032. Thus, although the Parole Commission is to be phased out, it will still be handling presentence reports for individual defendants for some time. The Government also points out that even after the Parole Commission is dissolved, the Bureau of Prisons will continue to receive copies of presentence reports from the district courts.

       According to the Government, the usual practice is for the probation officer to identify any information that was excluded by the district court and to provide the Commission with copies of the summaries that were used by the court. Brief for Petitioners 9 (citing Probation Division, Administrative Office of the United States Courts, The Presentenee Investigation Report 2 (1984)).

       She also named as a defendant in her action Charles Turnbo, the warden of the prison in which she was incarcerated. The apparent reason for this is that Wallace brought her action as a petition for habeas corpus pursuant to 28 U. S. C. § 2241. The District Court, however, treated her claim as a suit against an agency under the FOIA. See 5 U. S. C. § 552(a)(4)(B).

       The Government does not dispute this conclusion on this appeal.

       The amendments became effective on December 1, 1975.

       Under § 552(b)(9), an agency must supply to a FOIA applicant “[a]ny reasonably segregable portion of a record. . . after deletion of the portions which are exempt.”

       Respondents argue that presentence memorandums are not “inter-agency” records for purposes of Exemption 5. The Court of Appeals did not address this issue, however, and we do not find it necessary to do so in light of our disposition today.

       Respondents contend that presentence reports are not “inter-agency or intra-agency memorandums” within the meaning of Exemption 5, since they are prepared by probation officers, who are appointed by and serve under the direction of the courts, see 18 U. S. C. §§ 3602(a) and 3603(8) (1982 ed., Supp. IV), and since courts are not “agencies” for purposes of the FOIA, see 5 U. S. C. §§ 551(1)(B) and 552(f) (1982 ed. and Supp. IV). Although the Court does not reach this issue, see ante, at 11, n. 9,1 must. Apart from its present context, the most natural meaning of the phrase “intra-agency memorandum” is a memorandum that is addressed both to and from employees of a single agency — as opposed to an “inter-agency memorandum,” which would be a memorandum between employees of two different agencies. The problem with this interpretation is that it excludes many situations where Exemption 5’s purpose of protecting the Government’s deliberative process is plainly applicable. Consequently, the Courts of Appeals have uniformly rejected it, holding the “intra-agency memorandum” exemption applicable to such matters as information furnished by Senators to the Attorney General concerning judicial nominations, see Ryan v. Department of Justice, 199 U. S. App. D. C. 199, 207-209, 617 F. 2d 781, 789-791 (1980), and reports prepared by outside consultants, see Government Land Bank v. GSA, 671 F. 2d 663, 665 (CA1 1982). It seems to me that these decisions are supported by a permissible and desirable reading of the statute. It is textually possible and much more in accord with the purpose of the provision, to regard as an intra-agency memorandum one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a govern-mentally conferred capacity other than on behalf of another agency — e. g., in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) thát is authorized or required to provide advice to the agency. Here we haye a memorandum that fits readily within this definition. See Fed. Rule Crim. Proc. 32(c)(3)(D) (referring to “any copy of the presentence investigation report . . . made available to the Bureau of Prisons or the Parole Commission”); 18 U. S. C. § 4205(e) (making it “the duty of the various probation officers” to provide the reports of prisoners eligible for parole to the Parole Commission upon request).

       The privilege protecting presentence reports is unquestionably “well recognized in the case law as precluding routine disclosure.” See, e. g., United States v. Charmer Industries, Inc., 711 F. 2d 1164, 1175-1176 (CA2 1983); United States v. Martinello, 556 F. 2d 1215, 1216 (CA5 1977); United States v. Figurski, 545 F. 2d 389, 391 (CA4 1976); United States v. Greathouse, 484 F. 2d 805, 807 (CA7 1973); United States v. Evans, 454 F. 2d 813, 819-820 (CA8), cert. denied, 406 U. S. 969 (1972).

       The Parole Commission has invoked this available exemption. See 28 CFR § 16.85(a)(2) (1987). With respect to presentence reports in particular, the regulations provide that requests “must be directed to the appropriate court.” § 2.56(b). It is this regulation, rather than the Court’s holding today, which genuinely implements the intent of Rule 32(c) — that copies of the report can be retained only with the permission of the sentencing court.


source: Caselaw Access Project

author: Chief Justice Rehnquist

license: Public Domain

text:
    D. H. HOLMES CO., LTD. v. McNAMARA, SECRETARY OF REVENUE AND TAXATION OF LOUISIANA
    No. 87-267.
    Argued March 22, 1988
    Decided May 16, 1988

      Rehnquist, C. J., delivered the opinion for a unanimous Court.

      Andrew Rinker, Jr., argued the cause for appellant. With him on the briefs were William F. Grace, Jr., and Kenneth J. Servay.

      Robert G. Pugh argued the cause for appellee. With him on the brief was Robert G. Pugh, Jr.

      Briefs of amici curiae urging reversal were filed for the American Retail Federation by Maryann B. Gall; for the Committee on State Taxation of the Council of State Chambers of Commerce by Jean A. Walker and Paul H. Frankel; for the National Association of Catalog Showroom Merchandisers by Richard B. Kelly and Thomas P. Mohen; and for R. R. Don-nelley & Sons Co. et al. by Rex E. Lee, Michael A. Nemeroff Carter G. Phillips, and Mark D. Hopson.

      Briefs of amici curiae urging affirmance were filed for the Multistate Tax Commission by Alan H. Friedman; and for the National Governors’ Association et al. by Benna Ruth Solomon and Gregory Evers May.

        George S. Isaacson, Martin I. Eiseristein, and Robert J. Levering filed a brief for the Direct Marketing Association as amicus curiae.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Appellant, a Louisiana corporation, challenges the State’s imposition of a use tax on catalogs printed at appellant’s direction outside Louisiana and shipped to prospective customers within the State. The Louisiana Court of Appeal found that this application of the use tax did not violate the Commerce Clause of the Federal Constitution. We affirm.

HH

Appellant D. H. Holmes Company, Ltd., is a Louisiana corporation with its principal place of business and registered office in New Orleans. Holmes owns and operates 13 department stores in various locations throughout Louisiana that employ about 5,000 workers. It has approximately 500,000 credit card customers and an estimated 1,000,000 other customers within the State.

In 1979-1981, Holmes contracted with several New York companies for the design and printing of merchandise catalogs. The catalogs were designed in New York, but were actually printed in Atlanta, Boston, and Oklahoma City. From these locations, 82% of the catalogs were directly mailed to residents of Louisiana; the remainder of the catalogs were mailed to customers in Alabama, Mississippi, and Florida, or were sent to Holmes for distribution at its flagship store on Canal Street in New Orleans. The catalogs were shipped free of charge to the addressee, and their entire cost (about $2 million for the 3-year period), including mailing, was borne by Holmes. Holmes did not, however, pay any sales tax where the catalogs were designed or printed.

Although the merchandise catalogs were mailed to selected customers, they contained instructions to the postal carrier to leave them with the current resident if the addressee had moved, and to return undeliverable catalogs to Holmes’ Canal Street store. Holmes freely concedes that the purpose of the catalogs was to promote sales at its stores and to instill name recognition in future buyers. The catalogs included inserts which could be used to order Holmes’ products by mail.

The Louisiana Department of Revenue and Taxation, of which appellee is the current Secretary, conducted an audit of Holmes’ tax returns for 1979-1981 and determined that it was liable for delinquent use taxes on the value of the catalogs. The Department of Revenue and Taxation assessed the use tax pursuant to La. Rev. Stat. Ann. §§47:302 and 47:321 (West 1970 and Supp. 1988), which are set forth in the margin. Together, §§47:302(A)(2) and 47:321(A)(2) impose a use tax of 3% on all tangible personal property used in Louisiana. “Use,” as defined elsewhere in the statute, is the exercise of any right or power over tangible personal property incident to ownership, and includes consumption, distribution, and storage. See La. Rev. Stat. Ann. §§ 47:301(18) and (19) (West 1970 and Supp. 1988). The use tax is designed to compensate the State for sales tax that is lost when goods are purchased out-of-state and brought for use into Louisiana, and is calculated on the retail price the property would have brought when imported.

When Holmes refused to pay the use tax assessed against it, the State filed suit in Louisiana Civil District Court to collect the tax. In response to the State’s complaint, Holmes answered that it owed no tax under §§47:302 and 47:321 as properly applied, a position Holmes claimed was reinforced by La. Rev. Stat. Ann. §47:305(5) (West 1970). Holmes also contended that the use tax violated the Commerce Clause of the Federal Constitution.

After a 2-day bench trial, the District Court determined that the distribution of the catalogs in Louisiana was “intended for the use of D. H. Holmes in increasing its sales to potential customers who are residents of Louisiana.” No. 83-15523 (La. Civ. Dist. Ct., July 19, 1985), App. to Juris. Statement 12A, 21A. The court also found that “[o]nce the catalogs reach the residences of the prospective customers to whom they are addressed, Louisiana taxing authority reaches the resting place of the catalogs,” id., at 22A, and concluded that the application of the use tax statutes did not unconstitutionally burden interstate commerce. The court then ordered Holmes to pay the State $49,937.03, plus interest and attorney’s fees, which was the amount the parties stipulated as due on the use tax.

The Louisiana Court of Appeal, Fourth Circuit, affirmed the judgment of the trial court. 505 So. 2d 102 (1987). After reviewing the Louisiana use tax statute, the Court of Appeal found that the catalog distribution was properly subjected to the tax, since once the catalogs landed in Louisiana mailboxes they left the stream of interstate commerce and became part of the property mass of the State. Furthermore, “[distribution of the catalogs certainly constitutes ‘use’ by Holmes under the statute and is subject to the tax.” Id., at 105. Turning to the federal question in the case, the Court of Appeal analyzed the use tax under the test we articulated in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and found that it did not Violate the Commerce Clause.

The Louisiana Supreme Court denied discretionary review. 506 So. 2d 1224 (1987). We noted probable jurisdiction, pursuant to 28 U. S. C. § 1257(2). 484 U. S. 923 (1987).

HH b-H

The Commerce Clause of the Constitution, Art. I, § 8, cl. 3, provides that Congress shall have the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Even where Congress has not acted affirmatively to protect interstate commerce, the Clause prevents States from discriminating against that commerce. The “distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law.” H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 533 (1949).

One frequent source of conflict of this kind occurs when a State seeks to tax the sale or use of goods within its borders. See, e. g., Colonial Pipeline Co. v. Traigle, 421 U. S. 100 (1975); Memphis Natural Gas Co. v. Stone, 335 U. S. 80 (1948). This recurring dilemma is exemplified in what has come to be the leading case in the area, Complete Auto Transit, Inc. v. Brady, supra. In Complete Auto, Mississippi imposed a tax on appellant’s business of in-state transportation of motor vehicles manufactured outside the State. We found that the State’s tax did not violate the Commerce Clause, because appellant’s activity had a substantial nexus with Mississippi, and the tax was fairly apportioned, did not discriminate against interstate commerce, and .was fairly related to benefits provided by the State. Id., at 287.

This four-part formulation has since been used to evaluate the validity of state taxes vis-a-vis the Commerce Clause in a number of contexts. Two Terms ago, for instance, we upheld a Florida tax on aviation fuel purchased within the State, finding that all four of the Complete Auto criteria were satisfied. Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1 (1986). The Complete Auto test has also been employed to test the constitutionality of business and occupation taxes, Department of Revenue of Washington v. Association of Washington Stevedoring Cos., 435 U. S. 734 (1978); mineral severance taxes, Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981); and the taxation of income received by an out-of-state corporation from its in-state subsidiaries, Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U. S. 425 (1980).

Complete Auto abandoned the abstract notion that interstate commerce “itself” cannot be taxed by the States. We recognized that, with certain restrictions, interstate commerce may be required to pay its fair share of state taxes. Accordingly, in the present case, it really makes little difference for Commerce Clause purposes whether Holmes’ catalogs “came to rest” in the mailboxes of its Louisiana customers or whether they were still considered in the stream of interstate commerce. This distinction may be of some importance for other purposes (in determining, for instance, whether a “taxable moment” has occurred, see 505 So. 2d, at 105), but for Commerce Clause analysis it is largely irrelevant.

Holmes argues that Louisiana’s assessment against its merchandise catalogs is, in essence, a tax on the mere presence of goods within the State. This contention was expressly rejected by the Louisiana Court of Appeal’s finding that the distribution of the catalogs constituted use under §§47:802 and 47:321. We accept this construction of state law, and thus see no merit in the argument that Louisiana has attempted to tax only the existence of goods within the State.

In the case before us, then, the application of Louisiana’s use tax to Holmes’ catalogs does not violate the Commerce Clause if the tax complies with the four prongs of Complete Auto. We have no doubt that the second and third elements of the test are satisfied. The Louisiana taxing scheme is fairly apportioned, for it provides a credit against its use tax for sales taxes that have been paid in other States. See La. Rev. Stat. Ann. §47:303(A) (West 1970) (“A credit against the use tax imposed by this Chapter shall be granted to taxpayers who have paid a similar tax upon the sale or use of the same tangible personal property in another state”); §47:302(A)(2) (instructing that “there shall be no duplication of the tax”); §47:321(A)(2) (West Supp. 1988) (same). Holmes paid no sales tax for the catalogs where they were designed or printed; if it had, it would have been eligible for a credit against the use tax exacted. Similarly, Louisiana imposed its use tax only on the 82% of the catalogs distributed in-state; it did not attempt to tax that portion of the catalogs that went to out-of-state customers.

The Louisiana tax structure likewise does not discriminate against interstate commerce. The use tax is designed to compensate the State for revenue lost when residents purchase out-of-state goods for use within the State. It is equal to the sales tax applicable to the same tangible personal property purchased in-state; in fact, both taxes are set forth in the same sections of the Louisiana statutes. See La. Rev. Stat. Ann. §§47:302 and 47:321 (West 1970 and Supp. 1988).

Complete Auto requires that the tax be fairly related to benefits provided by the State, but that condition is also met here. Louisiana provides a number of services that facilitate Holmes’ sale of merchandise within the State: It provides fire and police protection for Holmes’ stores, runs mass transit and maintains public roads which benefit Holmes’ customers, and supplies a number of other civic services from which Holmes profits. To be sure, many others in the State benefit from the same services; but that does not alter the fact that the use tax paid by Holmes, on catalogs designed to increase sales, is related to the advantages provided by the State which aid Holmes’ business.

Finally, we believe that Holmes’ distribution of its catalogs reflects a substantial nexus with Louisiana. To begin with, Holmes’ contention that it lacked sufficient control over the catalogs’ distribution in Louisiana to be subject to the use tax verges on the nonsensical. Holmes ordered and paid for the catalogs and supplied the list of customers to whom the catalogs were sent; any catalogs that could not be delivered were returned to it. Holmes admits that it initiated the distribution to improve its sales and name recognition among Louisiana residents. Holmes also has a significant presence in Louisiana, with 13 stores and over $100 million in annual sales in the State. See App. 68-69, 98. The distribution of catalogs to approximately 400,000 Louisiana customers was directly aimed at expanding and enhancing its Louisiana business. There is “nexus” aplenty here.

Holmes and several amici argue that Holmes’ posture here closely resembles the predicament of the mail-order business we confronted in National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U. S. 753 (1967). In National Bellas Hess, we held that the State of Illinois could not, consistently with the Commerce Clause, compel an out-of-state mail-order company to collect a use tax on purchases of goods by Illinois residents when the seller’s only connection with its Illinois customers was by mail or common carrier. Holmes apparently views its catalog distribution as analogous to the mail-order solicitation in National Bellas Hess. This argument ignores, however, Holmes’ significant economic presence in Louisiana, its many connections with the State, and the direct benefits it receives from Louisiana in conducting its business. We thus see little similarity between the mail-order shipments in National Bellas Hess and Holmes’ activities in this case.

We find Holmes’ activities much closer to those considered in National Geographic Society v. California Board of Equalization, 430 U. S. 551 (1977). National Geographic involved the operation of two California offices by a national magazine devoted solely to soliciting advertising for the magazine. California nonetheless applied its use tax, which required every retailer engaged in business in the State to collect a tax from its purchasers, on the magazine’s mail-order activities. We determined that the imposition of the tax did not violate the Commerce Clause, since the magazine’s “maintenance of the two offices in California and activities there adequately established] a relationship or ‘nexus’ between the [magazine] and the State” sufficient to support the tax. Id., at 556. This conclusion applies a fortiori here, since Holmes’ connection with Louisiana far exceeds that of the magazine with California in National Geographic.

Because Louisiana’s imposition of its use tax on Holmes does not violate the Commerce Clause, the judgment of the Louisiana Court of Appeal is

Affirmed.

       “§47:302. Imposition of tax
      “A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
      “(2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.”
      “§ 47:321. Imposition of tax
      “A. In addition to the tax levied by R. S. 47:302(A) and collected under the provisions of Chapter 2 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950, there is hereby levied an additional tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property . . . the levy of said tax to be as follows:
      “(2) At the rate of one percent of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state, provided that there shall be no duplication of the tax.”

       As originally filed in Louisiana Civil District Court, the State’s complaint included a claim for delinquent sales taxes on candy sold by Holmes. The State apparently reached an acceptable compromise with Holmes, and the Civil District Court granted a joint motion by the parties to dismiss without prejudice the candy sales tax issue. That issue is thus no longer a part of this case.

       As then codified this section provided:
      “§ 47:305. Exclusions and exemptions from the tax
      “(5) It is not the intention of this Chapter to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of this Chapter to levy a tax on bona fide interstate commerce. It is, however, the intention of this Chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state.”