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September 21, 1978

Calvin F. SMITH, Plaintiff,
Peter FLAHERTY, Deputy Attorney General, U. S. Department of Justice, Gerald M. Farkas, Regional Director, U. S. Bureau of Prisons, Clarence M. Kelley, Director, F.B.I., Department of Justice, Defendants

The opinion of the court was delivered by: HERMAN



 Plaintiff, Calvin F. Smith, previously incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania and presently at the United States Penitentiary at Atlanta, Georgia filed this action on January 4, 1978. *fn1" In his complaint, Plaintiff requests the Court to order the disclosure of certain documents held by the Federal Bureau of Prisons and the Federal Bureau of Investigation under the Freedom of Information Act *fn2" and the Privacy Act. *fn3" In addition to seeking the withheld records and files, the Plaintiff requests the Court to make an award for costs under 5 U.S.C. § 552(a)(4)(E). The complaint names three persons as individual party Defendants: Peter F. Flaherty, Former Deputy Attorney General; Clarence M. Kelley, Former Director of the Federal Bureau of Investigation; and Gerald M. Farkas, Regional Director of the Federal Bureau of Prisons for the Northeast Region at Philadelphia, Pennsylvania. *fn4"

 The Plaintiff filed for leave to proceed in forma pauperis in this action and on June 12, 1978 leave was granted and the Clerk of the Court was directed to provide for service of process. In response, the Defendants on July 14, 1978 filed a motion to dismiss or in the alternative for summary judgment. In support of the motions the Defendants have filed affidavits of Gerald M. Farkas, Regional Director of the Federal Bureau of Prisons and James Edward King, Special Agent of the Federal Bureau of Investigation. An order will be entered partially granting the motion for summary judgment under Rule 56 as there exist no genuine issues of material fact concerning the materials covered and as a matter of law the Defendants are entitled to the partial judgment. *fn5" For two sets of documents withheld, however, the Court has not been provided with a sufficient description of the contents and therefore the Defendants will be directed to provide a more detailed explanation of the documents and their basis for withholding them from the Plaintiff. *fn6"


 As noted, the action arises from Plaintiff's request for documents from two federal agencies, the Federal Bureau of Prisons and the Federal Bureau of Investigations. On March 24, 1977 the Plaintiff made a request to the Bureau of Prisons for access to all documents in his Bureau of Prisons central file that had not been made available for his review at his then place of confinement, the United States Penitentiary at Lewisburg. The Regional Director, Gerald M. Farkas, responded to his request on May 13, 1977 by releasing copies of most of the materials in the file. Plaintiff then appealed the decision of Regional Director Farkas to the then Deputy Attorney General, Defendant Flaherty. Before final action was taken on the appeal, discussions between the Bureau of Prisons personnel and those of the Office of Privacy and Information Appeals resulted in an additional release of records to the Plaintiff. Otherwise, the decision of the Regional Director was affirmed and the Plaintiff was so notified on August 2, 1977. *fn7"

 The material that the Federal Bureau of Prisons is withholding consists of the following: (a) Plaintiff Smith's Presentence Report, (b) Probation Officer's memorandum to a United States District Court Judge, (c) Three pages of memoranda to prison officials concerning the Plaintiff, (d) Four pages of records loaned to the Bureau of Prisons by the government of the District of Columbia containing reports by a staff psychiatrist and a staff psychologist, (e) A one-page psychiatrist report and a statement about the Plaintiff's attitude, and (f) Two pages of intra-agency memorandum. Documents released with deletions were (g) Four pages of staff reports with the exclusion of the names of other inmates, (h) Teletype messages with the deletion of coding information, and (i) Six pages of "visitor's flyers" without the responses by prospective visitors to questions pertaining to arrest records and family relationships to other inmates. Plaintiff asserts that all of the above described documents are being improperly withheld and that all of the deletions were improperly made.

 By letter dated February 12, 1976 to former Director of the Federal Bureau of Investigation, Clarence M. Kelley, Plaintiff requested production or duplicated copies of information under the FOIA. *fn8" He was furnished with documents consisting of 221 pages from the F.B.I. records on March 23, 1977 and an explanation was given for the materials withheld. Next Plaintiff filed an appeal with former Deputy Attorney General Flaherty who advised Plaintiff that a supplemental release would be made by the F.B.I. *fn9" by letter dated October 7, 1977 and in which this modified action by the F.B.I. was affirmed. *fn10" On August 9, 1978 the F.B.I. again made a supplemental release of six documents that were not in the file at the time the request was processed.

 The following is a summary of the action taken by the Bureau in processing the Plaintiff's request. One main investigatory file consisting of thirty pages and involving a civil rights investigation was released with exclusions of the names of third parties and Bureau personnel. A second main file involving a National Firearms Act investigation, consisting of twenty-seven documents and 261 pages, was largely released in that 215 pages of the material was furnished to the Plaintiff with excisions. *fn11" Of those withheld, twelve pages were referred to the Department of Justice for a response to the Plaintiff. Third, one cross reference file consisting of two pages was released with exclusions. Last, one other file which mentioned the Plaintiff was withheld as the contents of the file primarily concerned a third party. As with the action by the Bureau of Prisons, the Plaintiff argues that all of the withholding and deleting by the F.B.I. was improper.

 Generally, under the FOIA all agency documents are broadly to be interpreted as available unless specifically exempt by the Act. N.L.R.B. v. Sears, Roebuck and Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975). The Act creates nine specific exemptions from compelled disclosure in section 552(b) which are made explicitly exclusive by § 552(c). For an agency to prevail in its action of nondisclosure of documents, it carries the burden of showing that information requested and not released indeed falls within one of the specific exemptions. The overall design of the Act was to balance the interests of public access with the necessity of retaining confidential matters of agencies from public view. See, Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). It is therefore in this context that the positions asserted in this case must be viewed.


 Because different exemptions of the Act are argued by the Defendants as being applicable to the materials withheld, each undisclosed item with the pertinent exemption will be briefly and separately discussed.


 The first item involves the right of Plaintiff to secure access to the nonconfidential portions of his presentence report contained in the Bureau of Prison files. Defendants assert that two different provisions are controlling in exempting the report from mandatory disclosure, sections 551(1)(B) and 552(b)(5). Under either of these provisions the Defendants' arguments are persuasive. *fn12"

 Section 551(1)(B) excludes "The courts of the United States" from the reach of the provisions of the Act. Only agency reports are made available and a presentence report prepared for and submitted to a sentencing court is not an agency report but rather a court record. It is thus not disclosable as it should be interpreted as thereafter remaining in the exclusive control of the court despite any joint utility it may eventually serve. Cook v. Willingham, 400 F.2d 885, 885 (10th Cir. 1968). Plaintiff argues that the Bureau of Prisons has adopted the report and that it thereby has lost its prior exempt status. However, the decisions applying the adoptive concept are quite dissimilar and concern primarily the exemption applicable to "inter-agency or intra-agency memorandums" of 5 U.S.C. § ...

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