BOP Program Statement 1351.05 § 10

§ 513.35. Accounting/nonaccounting of disclosures to third

parties shall be made in accordance with Department of Justice

regulations contained in 28 CFR 16.52.]

Except for disclosures of information to other DOJ employees, and

all components thereof, and except for disclosures required under

the FOIA (e.g., public information, as listed on Attachment B),

an accounting of disclosures to third parties of any information

concerning an individual contained in a Bureau system of records

will be made in accordance with the following guidelines:

a. Oral Disclosure

(1) Staff may orally release only public information. When

public information is thus disclosed, no accounting is necessary.

! Only in an emergency shall staff orally release non-public information to parties other than DOJ employees.

! Before such an emergency oral disclosure is made, staff

shall contact Regional Counsel or the FOIA/PA

Administrator. If this is not possible, staff shall

inform the Regional Counsel, or the FOIA/PA

Administrator at the Central Office as soon as

practicable after the disclosure.

(2) Upon oral disclosure of non-public information, a

memorandum shall be prepared and retained in the file from which

the record is disclosed, or an appropriate notation shall be

maintained in the file, attached to the record disclosed.

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This memorandum or notation shall include the following

information:

! the date of the disclosure,

! the name and address of the person to whom the record

was disclosed and the name of the agency that person

represents, if any,

! the purpose of the request for disclosure; and

! identification of the specific record disclosed.

For a form designed to assist staff receiving an oral

request for information, see the Record Of Information Release

form (BP-S171.013).

b. Written Disclosures. Accounting for a written disclosure

may be made by:

(1) Retaining a copy of the correspondence requesting the

information and a copy of the response in the file from which the

records are disclosed;

(2) Following the procedure for an accounting of an oral

disclosure, as described in Section 10.a., above; or

(3) Developing another method if the method provides, at a

minimum, the following information:

! the date of the disclosure;

! the name and address of the person to whom the record

was disclosed and the agency that person represents, if

any;

! the purpose of the request for disclosure; and

! a general description of the specific record disclosed.

c. Disclosure Record Maintenance. It is the responsibility of

the staff member making a disclosure of non-public information to

provide an accurate accounting of that disclosure.

! Accounting records of the disclosure of non-public

information shall be maintained for five years or until

the record is destroyed, whichever is longer, and will

be placed in the privacy folder.

! When records are transferred to the NARA for storage,

the disclosure accounting pertaining to those records,

other than correspondence, shall be transferred with

the records themselves.

! An exemption under 5 U.S.C. § 552a(j) does not relieve

the Bureau from the responsibility to account for all

disclosures other than those within the DOJ or under

the FOIA.

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11. [GOVERNMENT CONTRACTORS § 513.36

a. No Bureau component may contract for the operation of a

record system by or on behalf of the Bureau without the express

written approval of the Director or the Director's designee.

b. Any contract which is approved shall contain the standard

contract requirements promulgated by the General Services

Administration (GSA) to ensure compliance with the requirements

imposed by the Privacy Act. The contracting component shall have

the responsibility to ensure that the contractor complies with

the contract requirements relating to privacy.

PART TWO: [INMATE REQUESTS TO INSTITUTION FOR INFORMATION]

12. [INMATE ACCESS TO INMATE CENTRAL FILE § 513.40. Inmates are

encouraged to use the simple access procedures described in this

section to review disclosable records maintained in his or her

Inmate Central File, rather than the FOIA procedures described in

§§ 513.60 through 513.68 of this subpart. Disclosable records in

the Inmate Central File include, but are not limited to,

documents relating to the inmate’s sentence, detainer,

participation in Bureau programs such as the Inmate Financial

Responsibility Program, classification data, parole information,

mail, visits, property, conduct, work, release processing, and

general correspondence. This information is available without

filing a FOIA request. If any information] (in the disclosable

section) [is withheld from the inmate, staff will provide the

inmate with a general description of that information and also

will notify the inmate that he or she may file a FOIA request.

a. Inmate Review of His or Her Inmate Central File. An inmate

may at any time request to review all disclosable portions of his

or her Inmate Central File by submitting a request to a staff

member designated by the Warden. Staff are to acknowledge the

request and schedule the inmate, as promptly as is practical, for

a review of the file at a time which will not disrupt institution

operations.]

Further guidance is contained in the Program Statement on

Central File, Privacy Folder, and Parole Mini-Files.

When an inmate makes a request to institution staff to review

his or her Inmate Central File, he or she shall be advised to

make arrangements pursuant to local procedures.

! Because local processing reduces unnecessary FOIA

requests, staff shall advise an inmate to make a

request for Inmate Central File records to the FOIA/PA

Section of the Office of General Counsel only when the

inmate wishes to review exempt information.

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! Staff shall not discuss with the inmate the types or

nature of nondisclosable documents maintained in his or

her Privacy Folder.

Before any document in the Inmate Central File is disclosed to

the inmate to whom the documents pertain, or to a third party

with the prior written consent of the inmate, the following

review shall take place:

(1) Bureau Documents. If the document is a Bureau document

(generated by Bureau staff) and is not a court-ordered study,

staff are to determine whether the document should be withheld

from disclosure under Section 7 of this Program Statement and

further guidance set forth below.

! Staff shall place in the inmate’s Privacy Folder any

document that is to be withheld from disclosure.

! Staff shall place all other documents in the

disclosable portion of the Inmate Central File, which

is all of the Inmate Central File except for the

Privacy Folder.

Guidelines for some specific Bureau documents are provided

below:

(a) Progress Reports. All Progress Reports prepared:

! After October 15, 1974, are subject to release and

are to be placed in the disclosable section of the

Inmate Central File.

! Between February 15 and October 15, 1974, are

subject to release except for the recommendation

section, which shall be reviewed for disclosure in

accord with Section 7 of this Program Statement.

! Before February 15, 1974, shall be reviewed for

disclosure in accord with Section 7 of this

Program Statement.

(b) Psychiatric Reports

! A psychiatric report written at the request of the

U.S. Parole Commission is subject to release and

shall be placed in the disclosable section of the

Inmate Central File. This report should be

written in non-technical language so that it can

be understood by non-professionals.

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! Other psychiatric, psychological, or evaluative

reports Bureau staff prepared may also be made

available to the U.S. Parole Commission and shall

be inserted in the Privacy Folder. A summary of

the document must be placed in the Inmate Central

File. The summary may be placed in the Progress

Report prepared in connection with the inmate's

parole hearing. The summary shall be sufficiently

detailed to permit the inmate to respond, at the

Parole Hearing, to the substance of the withheld

information.

(c) Medical Records. See Section 14 of this Program

Statement.

(d) Discipline Records. Discipline records, such as Unit

Discipline Committee (UDC) and Discipline Hearing Officer (DHO)

packets (including the UDC/DHO report, incident report, notice of

hearing, list of inmate rights at UDC/DHO hearing, notice of

placement in Administrative Detention, and investigative

memoranda), shall be maintained together in the Privacy Folder

only if a portion of an investigation or other discipline record

contains non-disclosable materials. Copies of all releasable

documents shall be placed together in the disclosable section of

the Inmate Central File.

(2) Non-Bureau Documents

(a) FBI/National Crime Information Center (NCIC)

Information. The NCIC prohibits the Bureau from disclosing NCIC

identification records to an inmate.

Procedures for an inmate to request a copy of his or her

FBI/NCIC identification record directly from the FBI are

contained in 28 CFR 513.10 through 513.12.

(b) Documents from Other Federal Agencies. If a document

originates in another Federal agency (including other components

of the Department of Justice), it shall be placed in the Privacy

Folder, except as provided in section 12, first paragraph

(28 CFR 513.40).

When a request for records includes a document from

another Federal agency, the document shall be referred to the

originating Federal agency for a determination of its

releasability (see Attachment D for a suggested format to request

disclosure instructions from the originating agency). For

documents originating from Federal courts or probation offices,

see subsection (d) below.

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(c) Documents from Non-Federal Agencies. If a document

has been received from a source outside the Federal government

(e.g., a state agency), it shall be placed in the Privacy Folder,

except as provided in section 12, first paragraph

(28 CFR 513.40).

When a request for records includes a document from a non-Federal agency, Bureau staff must make a determination of its

releasability in consultation with the non-Federal organization

(see Attachment D). If the originating non-Federal agency

recommends non-disclosure, and Bureau staff determine that non-disclosure is appropriate under 28 CFR 513.32, staff shall

document the rationale for non-disclosure and place the document

in the Privacy Folder.

(d) Documents from Federal Courts and Probation Offices

(1) Federal Presentence Reports (PSR) and Statements

of Reasons (SOR) from Judgments in Criminal Cases. For safety

and security reasons, inmates are prohibited from obtaining or

possessing photocopies of their PSRs, SORs, or other equivalent

non-U.S. Code sentencing documents (e.g., D.C., state, foreign,

military, etc.). Inmates violating this provision are subject to

disciplinary action.

This prohibition applies only to the SOR portion of an

inmate’s Judgment in a Criminal Case. The rest of the Judgment

document remains releasable unless circumstances or policy

dictate otherwise. PSRs and SORs received by mail will be

treated as contraband, and handled according to the Mail

Management Manual.

This prohibition does not apply to inmates in Bureau of

Prisons custody with a need to review their PSRs prior to

sentencing. For example, a pretrial inmate scheduled for

sentencing may possess and review the PSR in preparation for

sentencing. After sentencing, however, the inmate is prohibited

from retaining a copy of the PSR.

The Bureau implemented this policy for the following

reasons.

# Many PSRs and SORs contain information

regarding the inmates’ government assistance,

financial resources, community affiliations,

etc.

# The Bureau has documented an emerging problem

where inmates pressure other inmates for a

copy of their PSRs and SORs to learn if they

are informants, gang members, have financial

resources, etc.

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# Inmates who refuse to provide the documents

are threatened, assaulted, and/or seek

protective custody. Likewise, inmates

providing PSRs and SORs containing harmful

information are faced with the same risks of

harm.

Inmates needing a copy of their PSRs or SORs for filing

as an attachment in a court case may obtain, complete, and submit

to the court an Inmate Request For Certification or Judicial

Notice of Pre-sentence Report and/or Statement of Reasons form

(BP-S757.013). The form, which includes instructions for

completion, must be available to inmates in the housing units and

law libraries.

Although prohibited from obtaining or possessing

photocopies, federal inmates are entitled under the FOIA to

access their own PSRs (see United States Department of Justice v.

Julian, 486 U.S. 1 (1988)) and SORs. Inmates must be provided

reasonable opportunities to access and review their PSRs, SORs,

or other equivalent non-U.S. Code sentencing documents (e.g.,

D.C., state, foreign, military, etc.). Inmates are responsible

for requesting an opportunity to access and review these records

with unit staff in accordance with the Program Statement on

Inmate Central File, Privacy Folder, and Parole Mini-Files. To

facilitate inmate access and review, PSRs and SORs should

ordinarily be maintained in the disclosable portion of the

central file unless significant safety and security concerns

dictate otherwise.

In addition to the above procedures, other provisions

of the FOIA may require limiting inmate access to PSRs and SORs.

Third party requests for inmate PSRs and SORs should be handled

according to Section 29 of this Program Statement.

Staff must maintain PSRs as follows:

! A PSR prepared on or after December 1, 1975,

is to be placed in the disclosable portion of

the Inmate Central File.

! A PSR prepared before December 1, 1975, is to

be returned to the sentencing court with a

cover letter indicating that the PSR is being

returned based on the Supreme Court's

decision in Julian and the fact that the PSR

was not prepared with the expectation of

release. No copy of the returned PSR is to

be maintained at the institution, although

relevant material from the PSR may be

incorporated into other documents.

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! Documents which the sentencing court has

sealed or otherwise labeled as not

disclosable to the inmate must be placed in

the privacy folder. Questions regarding such

documents should be referred to the Regional

Counsel.

(2) Documents Other than Federal PSIs. Generally,

documents originating in a Federal court or probation office

shall be placed in the Privacy Folder if the documents are

clearly marked to indicate that disclosure to the inmate is

unadvisable. Other documents, such as a court-ordered study the

Bureau prepared, shall be referred to the requesting court for

that court's instructions as to disclosure. A copy of the

document shall be maintained in the Privacy Folder until a final

determination is made regarding its disclosure.

When Bureau staff reclassify a document from nondisclosable to disclosable, subsequent to any information request

encompassing that document, staff shall place the reclassified

document in the disclosable section of the Inmate Central File.

[b. Procedures for Inmate Review of His or Her Inmate Central

File.

(1) Prior to the inmate's review of the file, staff are to

remove the Privacy Folder which contains documents withheld from

disclosure pursuant to § 513.32.

(2) During the file review, the inmate is to be under

direct and constant supervision by staff. The staff member

monitoring the review shall enter the date of the inmate's file

review on the Inmate Activity Record and initial the entry.

Staff shall ask the inmate to initial the entry also, and if the

inmate refuses to do so, shall enter a notation to that effect.

(3) Staff shall advise the inmate if there are documents

withheld from disclosure and, if so, shall advise the inmate of

the inmate's right under the provisions of § 513.61 to make a

FOIA request for the withheld documents.]

28 CFR 513.32 refers to Section 7 of this Program Statement.

28 CFR 513.61 refers to Section 27 of this Program Statement.

The Inmate Activity Record refers to form BP-381.

13. [INMATE ACCESS TO INMATE CENTRAL FILE IN CONNECTION WITH

PAROLE HEARINGS § 513.41. A parole-eligible inmate (an inmate

who is currently serving a sentence for an offense committed

prior to November 1, 1987) may review disclosable portions of the

Inmate Central File prior to the inmate's parole hearing, under

the general procedures set forth in § 513.40. In addition, the

following guidelines apply:]

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28 CFR 513.40 refers to Section 12 of this Program Statement.

[a. A parole-eligible inmate may request to review his or her

Inmate Central File by submitting the appropriate Parole

Commission form. This form ordinarily shall be available to each

eligible inmate within five work days after a list of eligible

inmates is prepared.

b. Bureau staff ordinarily shall schedule an eligible inmate

for a requested Inmate Central File review within seven work days

of the request after the inmate has been scheduled for a parole

hearing. A reasonable extension of time is permitted for

documents which have been provided (prior to the inmate's

request) to originating agencies for clearance, or which are

otherwise not available at the institution.

c. A report received from another agency which is determined

to be nondisclosable (see § 513.40 (b)) will be summarized by

that agency, in accordance with Parole Commission regulations.

Bureau staff shall place the summary in the appropriate

disclosable section of the Inmate Central File. The original

report (or portion which is summarized in another document) will

be placed in the portion of the Privacy File for Joint Use by the

Bureau and the Parole Commission.

d. Bureau documents which are determined to be nondisclosable

to the inmate will be summarized for the inmate's review. A copy

of the summary will be placed in the disclosable section of the

Inmate Central File. The document from which the summary is

taken will be placed in the Joint Use Section of the Privacy

Folder. Nondisclosable documents not summarized for the inmate's

review are not available to the Parole Commission and are placed

in a nondisclosable section of the Inmate Central File.

e. When no response regarding disclosure has been received

from an originating agency in time for inmate review prior to the

parole hearing, Bureau staff are to inform the Parole Commission

Hearing Examiner.]