Last revised (Transmittal 08-045) September 23, 2019

Guide to Judiciary Policy

Vol. 8: Probation and Pretrial Services 

Pt. A: Pretrial Services Investigation and Report

Ch. 2: Legal Framework and Principles

§ 240 Confidentiality

§ 240.10 Purpose

(a) The confidentiality of pretrial services information is preserved primarily to 

promote a candid and truthful relationship between a defendant being 

interviewed and the interviewing officer in an effort to obtain the most 

complete and accurate information, and to encourage the defendant’s 

participation in the investigation and report process. See: H. Conf. Rep. 

97-792, 97th Cong., 2d Sess. 8.

(b) The disclosure of pretrial services information for purposes other than 

determining pretrial release, particularly for prosecution purposes, would 

deter a person from cooperating with an officer and deprive the court of 

necessary information.

§ 240.20 Confidentiality Regulations

§ 240.20.10 Statutory Provisions

(a) Authority of the AO Director

Under 18 U.S.C. § 3153(c)(2), the AO Director is authorized to issue 

regulations governing the release of information made confidential by 

18 U.S.C. § 3153(c)(1).

(b) Confidentiality of Pretrial Services Information

(1) As stated in 18 U.S.C. § 3153(c)(1):

“Except as provided in [§ 3153(c)(2)], information obtained in the 

course of performing pretrial services functions in relation to a 

particular accused shall be used only for the purposes of bail 

determination and shall otherwise be confidential. Each pretrial 
Guide to Judiciary Policy, Vol. 8A, Ch. 2 Page 2

services report shall be made available to the attorney for the 

accused and the attorney for the Government.”

See: AO Office of the General Counsel Opinion, Sept. 23, 1997, 

Post-Release Verification.

(2) Under § 3153(c)(2), exceptions to the confidentiality of such 

information must be made to permit access:

(A) by qualified persons for purposes of research related to the 

administration of criminal justice;

(B) by persons under contract under 18 U.S.C. § 3154(4);

(C) by United States probation officers for the purpose of 

compiling presentence reports;

(D) to the attorney for the accused and the attorney for the 

government, to the extent that such information is a pretrial 

diversion report; and

(E) in certain limited cases, to law enforcement agencies for law 

enforcement purposes.

Note: As the regulations are mandated by Congress, they are 

entitled to the full force and effect of the law.

§ 240.20.20 Disclosure of Pretrial Services Information

(a) Unless authorized by confidentiality regulations or directed by a judge for 

good cause shown, officers are not authorized to disclose or release 

pretrial services information, including the file and report. The prohibition 

on unauthorized disclosure applies regardless of whether such disclosure 

is sought through an officer’s direct testimony or by means of subpoena, 

subpoena duces tecum, or other form of judicial process. 

(b) Confidentiality regulations do not apply to pretrial services information that 

normally appears in the court public records, such as demographic or 

biographical information.

§ 240.20.30 Authorized Disclosures

Any disclosure of pretrial services information permitted under the provisions of the 

confidentiality regulations or ordered by the judge must be limited to the minimum 

information necessary to carry out the purpose of the disclosure.

(a) Resolving Disputed Facts
Guide to Judiciary Policy, Vol. 8A, Ch. 2 Page 3

Disclosure prohibition does not apply when an officer’s testimony is 

necessary to resolve a disputed factual issue that is relevant to a release 

or detention determination when there is no practical way to resolve that 

issue, other than by reference to the information, file, or record. 

See: Guide, Vol. 20, Ch. 8 (Testimony and Production of Records). 

(b) Exceptions in 18 U.S.C. § 3153(c)(2)

Other than for the purpose of bail determination, pretrial services 

information should not be disclosed, except in the limited circumstances 

provided in 18 U.S.C. § 3153(c)(2).

(1) Research, Reviews, and Audits

(A) Pretrial services information, including national electronic 

pretrial services information, must be available to AO staff 

for technical assistance, assessments, or other reviews of a 

pretrial services office or a probation office that performs 

pretrial services or for other research related to the 

administration of justice.

(B) Upon written application to the chief pretrial services officer 

or the chief probation officer who supervises pretrial 

services, and with written notice to the chief of the AO’s 

Probation and Pretrial Services Office (PPSO), the district’s 

pretrial services information must be available to qualified 

persons for research related to the administration of justice.

(C) Upon written application to the PPSO chief, national 

electronic pretrial services information must be available to 

qualified persons for research related to the administration of 

justice.

(i) Under 28 U.S.C. § 602(d), the Director may “delegate 

any of [his or her] functions, powers, duties, and 

authority . . . to such officers and employees of the 

judicial branch of Government as the Director may 

designate[.]”

(ii) The Director authorizes the PPSO chief to implement 

and enforce these regulations.

(iii) In response to a request for data covered by these 

regulations, the PPSO chief must consider the 

following factors:
Guide to Judiciary Policy, Vol. 8A, Ch. 2 Page 4

(a) Whether the disclosure is in the best interests 

of the federal judiciary;

(b) Whether the disclosure would promote efficient 

operation of the federal pretrial services 

system and the enforcement of pretrial 

services laws in all United States courts;

(c) Whether the requested data can be obtained 

from other sources more efficiently and 

effectively;

(d) Whether honoring the request will be 

excessively costly or unduly onerous to AO 

staff;

(e) Whether the request meets the requirements of 

these regulations;

(f) Whether the disclosure of data would violate a 

statute, regulation, or ethical rule;

(g) Whether the disclosure of data would disclose 

information regarding the exercise of judicial or 

quasi-judicial responsibilities by federal judicial 

personnel in the decisional or deliberative 

process or disclose judge-identifying 

information;

(h) The sensitivity of the information requested; 

and

(i) Any other consideration the PPSO chief may 

consider germane to the decision.

(iv) The PPSO chief may consult with the Chiefs Advisory 

Group or convene a panel of subject-matter experts to 

assist in the determination of whether to grant a data 

request under these regulations.

(D) “Qualified Persons” 

(i) “Qualified persons” are persons or organizations:
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(a) whose training and experience are appropriate 

to the nature of the research in which they 

propose to engage; and 

(b) who perform such research with adequate 

administrative safeguards against the 

unauthorized disclosure of confidential 

information. 

(ii) Any person or organization to whom pretrial services 

information is disclosed under this subsection must, 

before the disclosure of any pretrial services 

information, execute a nondisclosure agreement—

affirming the continued confidentiality of information 

received. Such agreement must require that any 

such person or organization protect pretrial services 

information against unauthorized disclosure and 

maintain the anonymity of persons to whom 

information disclosed under this section pertains.

(2) Contract Agencies

(A) Pretrial services information is available to individuals or 

organizations that have contracted with pretrial services to 

provide supportive services for the custody or care of 

persons who are released under 18 U.S.C. § 3154(4).

(B) Contracts with such persons or organizations must include a 

nondisclosure agreement that recites the obligation of the 

persons or organizations to adhere to the confidentiality 

provisions of 18 U.S.C. § 3153(c) and these confidentiality 

regulations.

(C) Family Members and Third-Party Custodians

If defendants have been released to the custody of the 

family, family member, or third-party custodian under 

18 U.S.C. § 3142(c)(1)(B)(i), the chief pretrial services officer 

or chief probation officer who supervises pretrial services 

may authorize the disclosure of pretrial services information 

to defendants’ family members or a third-party custodian. In 

any other case, such officer must authorize disclosure of 

pretrial services information to family members or third-party 

custodians if:
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(i) in the officer’s opinion, such information would be 

beneficial to the ongoing supervision or treatment of 

the defendant; and 

(ii) the defendant authorizes the disclosure in writing. 

Such officer must not authorize any disclosure to 

family members or third-party custodians under this 

section if, in the officer’s opinion, the disclosure of 

such information:

(a) would violate a promise of confidentiality to the 

source of the information;

(b) would result in harm to any person; or

(c) would compromise the objective of 

confidentiality as set out in the confidentiality 

regulations.

(3) United States Probation Officers

Pretrial services information must be made available to United 

States probation officers for preparing a presentence report on the 

defendant or a codefendant, including any amendments or 

supplements to such report. The probation officer must not 

disclose pretrial services information, except when:

(A) such information is used in the presentence report; or 

(B) the probation officer determines that the information is 

relevant in connection with a proceeding under F.R.Crim.P. 

32.1.

(4) Attorney for the Defendant and Attorney for the Government

Pretrial services information may be disclosed to the attorney for 

the defendant and the attorney for the government to the degree 

that such information is a pretrial diversion report.

(5) Law Enforcement

After giving due consideration to any promises of confidentiality to 

sources of pretrial services information and any harm to any person 

that might result from disclosure of pretrial services information, the 
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judge may order disclosure of such information to law enforcement 

agencies for the following purposes:

(A) Investigation of a crime committed in the course of obtaining 

or maintaining pretrial release;

(B) Investigation of a failure to appear for the criminal judicial 

proceeding with respect to which pretrial services were 

provided;

(C) Investigation of a violation of a condition of pretrial release;

(D) Investigation of an instance of child abuse or neglect; or

(E) Protection of the accused, law enforcement personnel, 

prison officials, or other care providers when: 

(i) an arrest is contemplated;

(ii) the defendant is to be confined;

(iii) the defendant has escaped; or 

(iv) there are other circumstances in which information 

must be disclosed to: 

(a) protect such persons or the public against any 

risk of harm the defendant presents; or 

(b) protect or provide necessary care to the 

defendant. 

(c) Violations of Conditions of Release

Under 18 U.S.C. § 3154(5), officers must inform the judge and the U.S. 

attorney’s office of all apparent violations of pretrial release conditions and 

arrests of persons who are released under supervision.

(d) Risk of Harm

(1) Under 18 U.S.C. § 3154(5), officers must inform the judge and the 

U.S. attorney of any danger that any such person may come to 

pose to any other person or the community. In compliance with this 

section, pretrial services officers:
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(A) must provide such pretrial services information as is 

necessary to fully advise the judge and the U.S. attorney of 

the nature and source of the danger; and 

(B) may request authorization to provide a warning to a party at 

risk or recommend any appropriate modification of release 

conditions. 

Note: With the judge’s approval, pretrial services officers may 

disclose such pretrial services information as is necessary to permit 

a party at risk to take appropriate protective action.

(2) If a juvenile or a defendant poses an imminent danger to another 

person or the community and delaying disclosure pending the 

judge’s approval would place another person or persons in danger 

of physical harm, the chief pretrial services officer or the chief 

probation officer, or his or her or designee(s) supervising pretrial 

services may authorize the officer to disclose such pretrial services 

information as is necessary to permit a party at risk to take 

appropriate protective action before informing the judge and the 

U.S. attorney and before obtaining the judge’s approval. As soon 

as possible after such disclosure, the officer must provide the judge

and the U.S. attorney with: 

(A) notice of the danger;

(B) a description of the reasons for making immediate 

disclosure; and 

(C) the information disclosed.

(e) Exculpatory Information

(1) The judge may order the disclosure of pretrial services information 

if he or she finds that there is a substantial likelihood that the 

information is: 

(A) material;

(B) exonerating on the issue of guilt; or 

(C) germane to the issue of truth in an administrative, legislative, 

or judicial proceeding involving the individual charged or a 

third party; and 

(D) would not otherwise be available in such a proceeding.
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(2) An officer may disclose any pretrial services information to the 

judge in camera when:

(A) the officer believes that pretrial services information contains 

material that might be disclosed under subparagraph (1) of 

this section; or 

(B) when the person charged or a third party alleges that pretrial 

services information contains such material. 

(f) Diagnostic or Treatment Information

The chief pretrial services officer or the chief probation officer who 

supervises pretrial services may authorize the disclosure of pretrial 

services information to a physician, psychologist, psychiatrist, or other 

health care professional or treatment provider: 

(1) to assist that person in providing diagnostic information in 

connection with the pretrial services report or pretrial supervision; 

or 

(2) to provide drug or mental health treatment to the defendant.

(g) Information of Benefit to the Individual Charged with an Offense

(1) Upon the defendant’s written request, the chief pretrial services 

officer or chief probation officer who supervises pretrial services 

may authorize the disclosure of pretrial services information about

the person charged with an offense to aid the defendant in: 

• obtaining a social services benefit;

• securing employment; or 

• providing information to a treatment center or health care 

provider. 

(2) Disclosure in these circumstances may be authorized if, in such 

officer’s opinion:

(A) the disclosure of such information would not violate a 

promise of confidentiality to the source of the information;

(B) the disclosure would not result in harm to any person;

(C) the disclosure would not compromise the objective of 

confidentiality, as stated in the confidentiality regulations; 

and
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(D) the defendant is informed that the information disclosed may 

not be favorable.

(h) Status Information

The chief pretrial services officer or chief probation officer who supervises 

pretrial services may authorize the disclosure of pretrial services 

information consisting of “status” information regarding the defendant, 

such as current residence, telephone number, and current employer if, in 

the officer’s opinion, the disclosure of such information:

(1) would not violate a promise of confidentiality to the source of the 

information;

(2) would not result in harm to any person; and

(3) would not compromise the objective of confidentiality as stated in 

the confidentiality regulations.

(i) Good Cause

The judge may order the disclosure of pretrial services information if such 

officer finds that there is good cause for such disclosure after considering:

(1) any promise of confidentiality to the source of the information;

(2) any harm that such disclosure might cause to any person;

(3) the objective of confidentiality, as stated in the confidentiality 

regulations; and

(4) the purpose of the disclosure.

(j) Use of Pretrial Services Information in Prosecution

Under 18 U.S.C. § 3153(c)(3), pretrial services information is not 

admissible on the issue of guilt in a criminal judicial proceeding, unless the 

proceeding is: 

(1) a prosecution for a crime committed in the course of obtaining 

pretrial release; or 

(2) a prosecution for failure to appear for the criminal judicial 

proceeding with respect to which pretrial services were provided.

(k) Use of Pretrial Services Information in Cases Other Than Those for Which 

It Was Obtained
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An officer may use pretrial services information obtained in one case to: 

(1) prepare a pretrial services report in another case; or 

(2) supervise a defendant in another case.

§ 240.20.40 The Pretrial Services Report 

(a) Notation of Pretrial Services Information

In preparing the pretrial services report, the officer must note only 

information that is pertinent to the determination of release or detention 

and release supervision. The officer must not solicit, record, or indicate, in 

any form, information regarding the offense alleged, unless such 

information has been obtained from the public record. When such 

information is obtained from the public record, the source of information 

must be identified in the report. 

(b) Deletion of Information from the Pretrial Services Report

Officers may ask the judge for whom the pretrial services report is 

prepared to delete information from the report before the report is made 

available to the attorney for the defendant and the attorney for the 

government. Information may be deleted when, after an in camera review,

the judge determines that it:

(1) would violate the promise of confidentiality by which it was obtained 

from the defendant or a third party; or

(2) might result in harm to the defendant or a third party.

(c) Limitation on Making Pretrial Services Information Part of the Record

Pretrial services information must be made available to the judge 

consistent with 18 U.S.C. § 3154. But pretrial services information must 

not be made part of the public record. Only information that the judge

specifically relies upon in making a release or detention decision and that 

is otherwise unavailable should appear in the public record. Consistent 

with this limitation, officers should not be called to testify regarding pretrial 

services information, unless such testimony is necessary to resolve a 

material fact.

(d) Disclosure of the Pretrial Services Report

(1) The pretrial services report must be made available to the 

defendant, the defendant’s attorney, and the attorney for the 
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government under the district court’s practice and procedure in 

connection with:

(A) a pretrial release or detention hearing;

(B) a pretrial release revocation proceeding; or 

(C) any judicial proceeding to modify the conditions of release. 

Note: Any copies of the pretrial services report disclosed under 

this provision must be returned to the officer at the hearing’s 

conclusion.

(2) The chief pretrial services officer or the chief probation officer 

supervising pretrial services may make the pretrial services report 

available to new or additional counsel for the defendant if such 

counsel:

(A) commenced representation of the defendant after the initial 

disclosure of the pretrial services report; and 

(B) requests review of the report in writing. 

Note: The request must stipulate that the purpose of the review is 

to prepare for a scheduled or contemplated pretrial release or 

detention proceeding. Any copies of the pretrial services report 

disclosed under this provision must be returned to the officer after 

inspection by counsel.

(3) The pretrial services report should not be re-disclosed to other 

parties by defense counsel or the attorney for the government.