dissenting:
Under a vastly expanded’ Exemption 5 rubric, the majority in this case overturns the decisions of four District Court judges in this circuit and creates a per se rule against disclosure of presentence reports under the Freedom of Information Act (FOIA). See Durns v. Bureau of Prisons, 605 F.Supp. 1213 (D.D.C.1985); Izzi v. U.S. Parole Comm’n, No. 84-3030 (D.D.C. April 22, 1985); Mineo v. U.S. Dep’t of Justice, No. 84-3899 (D.D.C. April 29, 1985); Cox v. U.S. Dep’t of Justice, No. 85-0892 (D.D.C. July 31, 1985); see also White v. U.S. Dep’t of Justice, 606 F.Supp. 880 (D.D.C.1985). That rule not only mischaracterizes Exemption 5, but effectively nullifies two earlier decisions of this court. See Carson v. U.S. Dep’t of Justice, 631 F.2d 1008 (D.C.Cir. 1980); Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455 (D.C.Cir.1984). Despite the majority’s holding, it is clear that prisoners’ own presentence reports are “routinely” and “normally” available to them in civil litigation, and thus do not fall under Exemption 5. As a consequence, I respectfully dissent.
FOIA’s Exemption 5, 5 U.S.C. § 552(b)(5) (1982), protects from disclosure “inter-*162agency 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.” The Supreme Court has interpreted this language to cover only documents “normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975); see also Grolier v. FTC, 462 U.S. 19, 26, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983) (Exemption 5 applies to documents “normally” and “routinely” privileged). The question before this court, then, is whether presentence reports would “normally” be privileged from disclosure to the appellees in civil discovery. If presentence reports are privileged in civil discovery, they fall under FOIA Exemption 5’s protection as well.
The majority finds that a “qualified privilege” exists for presentence reports in civil discovery by citing a plethora of cases that have barred third parties from receiving copies of presentence reports from the sentencing court itself.1 See majority opinion (maj. op.) at 702-03. Without any case support, the majority argues that the privilege protects presentence reports from discovery requests by the subjects of those reports as well. Maj. op. at 705. The source of this “privilege” is somewhat unclear, but seems to lie in the powers given sentencing courts by Rule 32(c) of the Federal Rules of Criminal Procedure and to the Parole Commission by the Parole Commission and Reorganization Act, 18 U.S.C. § 4208(b)(2) (1982). See, e.g., United States v. Anderson, 724 F.2d 596, 598-99 (7th Cir.1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1171 (2d Cir.1983); White v. U.S. Dep’t of Justice, 606 F.Supp. 880, 886 (D.D.C.1985). The scope of the privilege for presentence reports in civil discovery turns, therefore, on the language of these two provisions.
Even brief examination reveals that Rule 32(c) and the Parole Commission and Reorganization Act do not create a civil discovery privilege against disclosure of a presentence report to its subject. On the contrary, Rule 32(c) specifically makes presentence reports available to prisoners before sentencing, with only limited exceptions, Fed.R.Crim.P. 32(c)(3)(A), and the Parole Commission and Reorganization Act actually requires the Parole Commission to give prisoners “reasonable access” to presentence reports used in parole deliberations.2 18 U.S.C. § 4208(b)(2) (1982). In light of these provisions, it is clear that the fact that existing presentence report access cases involve requests only from third parties is not mere fortuity, despite the majority’s suggestion. Maj. op. at 705. No cases have arisen establishing any “qualified privilege” for presentence reports against disclosure requests from the subjects of those reports precisely because the only possible source for such a privilege, far from limiting prisoner access to the documents, actually gives prisoners a statutory entitlement to access. The only restrictions on that entitlement are the narrow exceptions to disclosure set out by the two sections. See Fed.R.Crim.P. 32(c)(3)(A); 18 U.S.C. § 4208(b)(2). It seems clear, then, that prisoners in civil litigation with the agencies are not barred *163from discovering their own presentence reports.3
The majority sidesteps this obvious conclusion by finding that even if presentence reports would be available to these particular appellees in civil discovery, presentence reports in general are not “routinely” or “normally” available, and therefore fall within the scope of FOIA Exemption 5. Maj. op. at 705; Grolier v. FTC, 462 U.S. 19, 26, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983). But to say the reports are not “routinely” available because some other party would have to show a “particularized need” to gain access to them in civil discovery is effectively to argue that the reports must be “routinely” available to anyone at any time in order to avoid Exemption 5 status. This significantly exaggerates the scope of the Supreme Court’s “routinely available” standard.
In Grolier the Court found Exemption 5 applied to materials prepared in the course of a Federal Trade Commission investigation. Those materials were protected by the attorney work-product privilege in every case, absent a party’s special showing of “substantial need” for the documents. 462 U.S. at 25, 103 S.Ct. at 2213. The blanket privilege against disclosure in the case was “qualified” by a special showing of need. The availability of such a qualification did not, by itself, make the documents “routinely” available, and Exemption 5 applied. In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984), the Court was similarly cautious: Exemption 5 covered statements made by air safety experts to Air Force officials, because those statements were normally privileged from discovery by anyone under the well-established rule of Machin v. Zuckert, 316 F.2d 336 (D.C.Cir.1963). Once again, only a special showing of need by a party could overcome the prohibition on disclosure to any party, and once again, the availability of that special showing did not make disclosure “routine.” Exemption 5 applied.
Neither of these cases remotely resembles the present situation. Here, no blanket privilege against disclosure exists. Instead, Rule 32(c) and the Parole Commission and Reorganization Act at most support a privilege against disclosure of the reports to third parties. No privilege runs against requests by prisoners for their own reports. The prisoner need not show any “particularized need” to overcome some hypothetical privilege protecting his own report; the prisoner need only show that he is the subject of the report requested to avoid any privilege whatever. In fact, the agency effectively must show a “particularized need” in order to withhold the report from the subject. Fed.R.Crim.P. 32(c)(3)(A); 18 U.S.C. § 4208(b)(2). The prisoner’s right to the document does not “qualify” some overall privilege. It limits the scope of the privilege to requests by third parties. The reports in dispute here would be “routinely available” to their subjects in civil discovery, and therefore they are not covered by Exemption 5.
The majority points out that “Congress granted the scholar and the scoundrel equal rights of access to agency records” under FOIA. Maj. op. at 706. By making the success of the FOIA request for these documents ride on the identity of the requestor, my approach might seem at first blush to belittle this principle. But while it is certainly true that FOIA generally gives members of the public equal access to agency records, see Sears, Roebuck, 421 U.S. at 149, 95 S.Ct. at 1515, it is also true that Congress specifically made the government’s ability to withhold documents under Exemption 5 turn on civil discovery questions that vary depending on the status of classes of document requestors. See Grolier, 462 U.S. at 26, 103 S.Ct. at 2213. Here, no privilege bars access of members of this class to their own reports. The Supreme Court’s limitation of *164Exemption 5’s incorporation of discovery rules to “routinely” available documents helps avoid full-blown mini-trials on civil discovery matters in FOIA cases. See id.; Weber Aircraft, 465 U.S. at 799, 104 S.Ct. at 1492. It does not exempt all documents arguably protected by privilege from someone, somewhere.
The majority attempts to bolster its reasoning by asserting that the purpose behind the “qualified privilege” is merely to ensure government access to confidential information. As this purpose is not furthered by distinguishing between the right of access of the subject of the report and the right of third parties, the majority argues, the court should not create such a distinction. Maj. op. at 705. This argument suffers from several fundamental flaws. The source of the majority’s privilege, after all, is Rule 32(c) and the Parole Commission and Reorganization Act, both of which embrace two competing policies. Each provision explicitly weighs the importance of ensuring government access to confidential information against the legitimate need of the prisoner to verify the accuracy of the report by which his punishment is. determined, as the majority itself acknowledges. Maj. op. at 702. If government access were the only policy considered important by Congress in the two provisions, Congress would not have given the prisoners here the right to review their own presentence reports. Congress did not just “qualify” the privilege for the subject of the report; Congress eliminated that privilege by giving the subject a right to the document.
Moreover, the policy of ensuring government access to information does not require per se Exemption 5 treatment of presentence reports. On the contrary, Congress specifically tailored other FOIA exemptions to ensure that informants will be guaranteed confidentiality in providing important information. Exemption 7 protects the identity of confidential sources and confidential information, and exempts from release records that would “constitute an unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(7). As the appellants have specific authority under FOIA to delete those portions of a document that are exempt, 5 U.S.C. § 552(b), it seems to me that they can avoid any chilling effect disclosure might have by judicious trimming of confidential information and the names of confidential sources from the presentence reports. Exemption 7, in fact, approximates the access limitations available to the sentencing court under Rule 32(c). It makes little sense to deprive federal prisoners of access to information they could have seen, or in fact did see, at the time of their sentencing. Given the availability of an effective redaction procedure, appellants have failed to show any prejudice or need for per se exemption of presentence reports. Certainly the denial of this status for presentence reports has not been shown to harm legitimate government interests.
For all these reasons, I must dissent from the majority’s determination that Exemption 5 covers presentence reports in general. But in addition to these arguments directly on the merits, it is important to note the effect of the majority’s opinion on prior precedent in this circuit. Although the majority’s opinion does not formally overturn any decisions of this court, the effect of the opinion is to make two cases dead letter. In Carson v. U.S. Dep’t of Justice, 631 F.2d 1008 (D.C.Cir.1980), this court found that presentence reports are “agency records” for FOIA purposes. Id. at 1009. Although that opinion explicitly left open the possibility that specific FOIA exemptions might limit the availability of the reports, id., it is clear that the Carson court felt that FOIA required disclosure of presentence reports under some circumstances. Id. at 1015. In Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1458-59 (D.C.Cir.1984), the court cited Carson with approval and specifically reaffirmed that FOIA reaches presentence reports.
By finding that presentence reports fall within Exemption 5 even when requested by the subject of the report, the majority has effectively annulled both Carson and Lykins. The fact that presentence reports *165are “agency records” subject to FOIA is utterly without significance if Exemption 5 automatically and universally protects those reports. Perhaps the majority opinion does not, strictly speaking, overturn the narrowly constructed holding of Carson and Lykins. Nevertheless, the majority’s willingness to eviscerate circuit precedent without discussion strengthens my conviction that the court has seriously misconstrued the law in this case.
Because presentence reports are normally and routinely available to the subjects of those reports under Fed.R.Crim.P. 32(c) and the Parole Commission and Reorganization Act, and thus normally and routinely available to the subjects in the civil discovery context, they are not protected from disclosure to these appellees by Exemption 5 of FOIA. Therefore, I would order the appellants in each of these cases to deliver copies of the presentence reports to appellees. As the majority has not so directed the appellants,
I respectfully dissent.
. The majority assumes that the power of the sentencing court to deny third-party access to the reports in the criminal context translates into a privilege against disclosure in the civil discovery context as well. Maj. op. at 705. Although the court has not definitively demonstrated that such a leap is warranted, the present case does not require resolution of the issue. Even if we assume that a third-party privilege exists, it does not apply to the subjects of the reports, as discussed below. Exemption 5 therefore does not apply here.
. Granted, the Parole Commission has promulgated regulations under the Act barring prisoners from keeping a copy of their report unless the sentencing court agrees. 28 C.F.R. § 2.56(b) (1985). But a restriction on the form of prisoner access is not, in itself, sufficient to create a presumption of privileged status. The majority cites no cases that indicate otherwise. As the Parole Commission and Reorganization Act in every other pertinent aspect indicates that no privilege extends to requests for presentence reports by subjects, I see no justification for finding such a privilege on the basis of this regulation. See 18 U.S.C. § 4208(b)(2) (1982).
. Presumably the court presiding in such a case would grant the government the power to redact names of confidential informants, etc., along the lines set out by Rule 32(c) and the Parole Commission and Reorganization Act. 18 U.S.C. § 4208(b)(2).