Summary
The D.C. Circuit held that applications for nondisclosure orders concerning a grand jury subpoena are ancillary grand jury records subject to Federal Rule of Criminal Procedure 6(e)(6). The court rejected common-law and First Amendment access claims and upheld the district court’s limited unsealing determination, but remanded for consideration of whether the appellant could amend its motion and supplement the record with a later Department of Justice Office of Inspector General report.
Topics
Practice areas
Questions Presented
- Whether applications for nondisclosure orders relating to a grand jury subpoena are ancillary grand jury records subject to sealing under Federal Rule of Criminal Procedure 6(e)(6).
- Whether the applications are subject to a common-law or First Amendment right of public access despite Rule 6(e)(6).
- Whether public disclosures, including media reports, Google's disclosure of documents to Foster, Department of Justice press releases, and an Office of Inspector General report, waived grand jury secrecy.
- Whether the court of appeals could consider the December 2024 Office of Inspector General report in the first instance and use it to reverse the district court's unsealing decision.
Holdings
- Applications for nondisclosure orders concerning a grand jury subpoena are records relating to grand jury proceedings and are ancillary grand jury materials subject to Federal Rule of Criminal Procedure 6(e)(6) when disclosure would reveal matters occurring before the grand jury.
- The common-law right of access to judicial records does not apply to the applications because Rule 6(e)(6) governs and displaces that right for ancillary grand jury materials.
- The First Amendment does not provide a right of access to applications for nondisclosure orders relating to a grand jury subpoena or to ancillary materials dealing with grand jury matters.
- The identified disclosures did not waive grand jury secrecy because they did not disclose the applications' protected contents sufficiently to make the information widely known or put the cat out of the bag.
- The court of appeals would not consider the December 2024 OIG report in the first instance because appellate courts ordinarily do not find facts or receive new evidence, and the record-intensive unsealing issue did not present a recognized exception.
Key quotations
“Materials related to grand jury proceedings are covered by Rule 6(e)(6) when they would “tend to reveal some secret aspect of the grand jury’s investigation,” such as information about grand jury witnesses, testimony, or investigative strategy.” (8)
“Although this court has acknowledged that “public access plays an important role in other aspects of the judicial process,” it has held that “there is no First Amendment right of access to grand jury proceedings, nor do First Amendment protections extend to ancillary materials dealing with grand jury matters.”” (10)
““Information widely known is not secret,” and grand jury secrecy is lost when a disclosure is sufficiently significant so that “the cat is out of the bag.”” (13)
“an appellate court ordinarily has no factfinding function. It cannot receive new evidence from the parties, determine where the truth actually lies, and base its decision on that determination.” (15)
Factual background
In 2017, a grand jury subpoena sought non-content subscriber information associated with Google accounts and telephone numbers connected to Jason Foster, then Chief Investigative Counsel of the Senate Judiciary Committee. The Department of Justice obtained nondisclosure orders under 18 U.S.C. § 2705(b), which Google was prohibited from disclosing to Foster until the orders expired in 2023. In 2024, Empower, founded by Foster, sought unsealing of the applications, asserting that they involved possible efforts to identify congressional whistleblowers and that public disclosures had eliminated any continuing secrecy interest.
Procedural history
Empower moved to intervene in a closed grand jury proceeding and to unseal applications submitted under 18 U.S.C. § 2705(b). The district court allowed permissive intervention and ordered limited unsealing, but held that the applications were ancillary grand jury records protected by Rule 6(e)(6), that neither the common-law nor First Amendment right of access applied, and that prior disclosures had not waived secrecy. On appeal, Empower relied in part on a December 2024 Department of Justice Office of Inspector General report that was issued after the district court's order. The D.C. Circuit affirmed, subject to a limited remand permitting the district court to consider whether to allow amendment of the unsealing motion and supplementation of the record with the report.
Remand instructions
The district court may consider whether to allow Empower to amend its motion for unsealing and supplement the district court record with the December 2024 Office of Inspector General report. The court of appeals did not direct the district court to unseal the applications.