this evidence, ostensibly, to assist the court in assessing where in the controlling guideline range Preate should be sentenced. In order to determine whether the government possessed evidence material to Preate's sentencing which was not adequately covered in the report, the court directed the government to file an in camera proffer of the evidence which it proposed to introduce. The government filed the proffer on November 6, 1995, and the court concluded that the allegations addressed in it were satisfactorily included in the presentence report and therefore the government's proposed evidence could have no bearing upon Preate's sentence.
On November 13, 1995, PG Publishing filed the instant motion to unseal the conference transcript and the United States' in camera proffer. PG Publishing concurrently moved, without explanation, for a highly expedited briefing schedule under which the opposition brief was to be filed on November 15, 1995. The court denied the motion to expedite the briefing schedule.
On November 17, 1995, four days after PG Publishing filed its motion to unseal, it filed an emergency petition for a writ of mandamus before the Third Circuit seeking an order unsealing the conference transcript and the United States' in camera proffer. The Third Circuit denied PG Publishing's mandamus petition on January 17, 1996. This court subsequently directed PG Publishing, Preate and the United States to brief PG Publishing's November 13, 1995 motion to unseal.
The court now turns, for the first time, to the merits of that motion.
On November 17, 1995, in response to PG Publishing's petition for a writ of mandamus, this court issued a memorandum which explained that the documents at issue are fundamentally interconnected with the presentence report, which is a confidential document, and as such they are also confidential. In support of disclosure, PG Publishing argues that: (1) the section of the presentence report pertinent to this case, which addresses offense conduct, is not entitled to a presumption of confidentiality; and (2) even if the entire report is confidential, that confidentiality should not be extend to the October 16 conference and the United States' November 6 proffer.
A. Confidentiality Of Presentence Reports
It is established beyond reasonable argument that presentence reports, in their entirety, are confidential documents and that there is a strong presumption against disclosing such reports to third-parties. See United States Dept. of Justice v. Julian, 486 U.S. 1, 12, 100 L. Ed. 2d 1, 108 S. Ct. 1606 (1987) ("Courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals.") (emphasis in original) (citing United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985); United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1173-76 (2d Cir. 1983)); United States v. Cianscewski, 894 F.2d 74, 79 n.17 (3d Cir. 1990) ("The presentence report has always been considered a confidential document."); United States v. Huckaby, 43 F.3d 135, 137-38 (5th Cir. 1995); United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989); United States v. Schlette, 842 F.2d 1574, 1578-79 (9th Cir. 1988); United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976). The court's research has disclosed no cases holding otherwise. In view of the breadth and unanimity of the forgoing authority, the court summarily rejects PG Publishing's contention that the offense conduct section of the presentence report is not confidential.
B. Confidentiality Of In-Chambers Conference And In Camera Proffer
The court must now decide whether the in-chambers conference and the United States' in camera proffer fall within the scope of the presentence report's confidentiality. PG Publishing argues that to answer this question in the affirmative "would improperly extend and apply the rule of confidentiality to information disclosed through non-confidential means merely because that information is similar to information contained in a separate document that is entitled to confidentiality." (Petitioner's Supplemental Petition for Writ of Mandamus at 4.) In support of this position PG Publishing relies upon an analogy to the attorney-client privilege, noting that "while a client may not be compelled to relate his communications to counsel, the facts related to counsel are not privileged but simply must be established outside of the attorney-client communication." (Id. (emphasis in original; citations omitted).)
PG Publishing's argument begs the question whether the documents at issue arose "outside of," or independently from, the presentence report. They did not. This court convened the October 16 conference for the very purpose of discussing the presentence report, not to discuss facts which coincidentally happened to be in the report. Similarly, the court directed the United States to file the November 6 in camera proffer, which elaborates on allegations in the report, so that the court could determine whether the government could offer material evidence which was not adequately covered in the report. Such proceedings -- that is, proceedings whose purpose is to examine the soundness and sufficiency of the presentence report prior to sentencing -- may be entitled to a presumption of confidentiality at the discretion of the court. See United States v. Santarelli, 729 F.2d 1388, 1390-91 (11th Cir. 1984) (distinguishing between presumptive openness of sentencing hearings and presumptive confidentiality of presentence reports and hearings at which report's contents are challenged); cf. Corbitt, 897 F.2d at 229 (press' right to attend hearing does not necessarily entail right of access to documents submitted for use in hearing). Otherwise, parties could simply circumvent the rule of a presentence report's confidentiality by paraphrasing its contents in a document filed on the open docket, thereby rendering the rule a nullity, and making a mockery of it. Because the in-chambers conference and the in camera proffer are fundamentally interconnected with the presentence report, the court concludes that they are covered by the report's presumption of confidentiality.
C. Compelling Need And The Ends Of Justice
This determination does not end the court's inquiry, however, for a presentence report's presumption of confidentiality is not absolute. A third-party seeking access to a presentence report may overcome the report's confidentiality by demonstrating that disclosure will "serve the ends of justice," Schlette, 842 F.2d at 1579; McKnight, 771 F.2d at 390, or by establishing a "compelling, particularized need for disclosure," Huckaby, 43 F.3d at 138; Corbitt, 879 F.2d at 239.
Applying this standard requires a fact specific inquiry in which the need for confidentiality is balanced against the desirability of releasing a presentence report. Huckaby, 43 F.3d at 139; Schlette, 842 F.2d at 1579, 1583; Charmer, 711 F.2d at 1173. The showing required of the party seeking disclosure will vary with the degree to which the need for confidentiality is present in a particular case. Schlette, 842 F.2d at 1583 (citing United States Indus., Inc. v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.), cert. denied, 382 U.S. 814, 15 L. Ed. 2d 62, 86 S. Ct. 32 (1965)). This determination is committed to the sound discretion of the trial court and will be reviewed for abuse of discretion. Huckaby, 43 F.3d at 138; Schlette, 842 F.2d at 1577.
1. The Need For Confidentiality
Three interests have been recognized as underlying the need for a presentence report's confidentiality:
First, the defendant has a privacy interest in the presentence report because it reveals not only details of the offense but, in the broadest terms, "any other information that may aid the court in sentencing . . . ." A PSIR [presentence report] routinely describes the defendant's health, family ties, education, financial status, mental and emotional condition, prior criminal history and uncharged crimes. That the defendant has pled guilty or been convicted of a crime does not require the dissemination of his entire personal background in the public domain. And despite the care with which they are prepared, PSIR's do not conform to the rules of evidence and may contain errors.