The opinion of the court was delivered by: FOGEL
Before us is defendants' motion in the alternative either for dismissal of plaintiffs' complaint or for summary judgment. Plaintiffs, two federal prison inmates, sued defendants, the Chairman and the Regional Director of the United States Board of Parole, after it was discovered that the tape recordings of the plaintiffs' respective parole hearings were defective and inaudible. Suit was brought under the Freedom of Information Act, 5 U.S.C. § 552, and the fifth amendment to the Constitution; each plaintiff seeks damages in the amount of one hundred dollars per day, trebled as a punitive measure, from the dates the original records were recorded until "such time as the records are amended to be in accordance with the law, or until the records, in any form, cease to be or have any further harmful or injurious effects upon the plaintiffs."
Defendants admit that the records were defective, but they allege that they have provided a satisfactory alternative, the Hearing Summary Form.
Further, they argue that plaintiffs have no right to the recordings, either under the Freedom of Information Act, or under any Constitutional claim. Accordingly, they move that the action be dismissed, or that summary judgment be granted in their favor. We agree, for the reasons hereinafter set forth, that summary judgment be granted in favor of defendants. The basis for this decision is as follows:
I. THE FREEDOM OF INFORMATION ACT
Section 552 of Title 5, United States Code, popularly known as the Freedom of Information Act (FOIA), is a legislative directive to federal agencies to make certain information available to the public. An "agency" is defined in 5 U.S.C. § 551(1), for purposes of § 552 to be:
. . . each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include --
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia . . . .
The United States Board of Parole is a creature of statute (chapter 311 of Title 18, United States Code (18 U.S.C. § 4201 et seq.)). As part of the Department of Justice, it is an agency within the reach of the provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. See Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107 (1974).
Each government unit subject to the FOIA is directed to do the following: