Summary
The Ninth Circuit addressed whether the Freedom of Information Act requires disclosure of millions of documents that Volkswagen provided to federal prosecutors in response to a grand jury subpoena. The court held that Federal Rule of Criminal Procedure 6(e), incorporated through FOIA Exemption 3, protects nearly all of the requested documents because disclosure would reveal matters occurring before the grand jury. It reversed in part, vacated in part, and remanded for evaluation of four documents lacking a Rule 6(e) label.
Topics
Practice areas
Questions Presented
- Whether the district court's order granting disclosure under Federal Rule of Criminal Procedure 6(e) was a final decision reviewable under 28 U.S.C. § 1291.
- Whether documents that the government possesses only because they were produced in response to a grand jury subpoena constitute a matter occurring before the grand jury protected by Rule 6(e).
- Whether FOIA Exemption 3 incorporates Rule 6(e) and therefore permits the Department of Justice to withhold nearly all of the subpoenaed documents.
- Whether the four documents lacking a Rule 6(e) label should be evaluated separately for possible disclosure.
Holdings
- An order granting disclosure under Rule 6(e) is a final decision reviewable under 28 U.S.C. § 1291, and consolidation with the FOIA action did not eliminate the appellants' right to appeal.
- Documents that the government possesses only because they were produced in response to a grand jury subpoena are a matter occurring before the grand jury when disclosure would reveal the subpoena, the grand jury's investigation, or its deliberative process.
- The preexisting-documents or independent-source exception does not apply when the government possesses the requested documents only through the grand jury subpoena and not through an independent source.
- Rule 6(e), incorporated through FOIA Exemption 3, bars disclosure of nearly all six million documents because the Department obtained them only through a grand jury subpoena, the documents were marked as produced pursuant to Rule 6(e), and disclosure would reveal matters before the grand jury.
Key quotations
“Thus, a rule that prohibits disclosing “matter[s] occurring before the grand jury” bars revealing any “subject” under the grand jury’s consideration.” (11-12)
“Thus, the government may defeat a request to reveal documents subpoenaed by a grand jury by disproving any of the following: (1) that the documents are in governmental possession from an independent source; (2) that the documents were sought for a reason independent of the grand jury investigation; or (3) that disclosure of the documents would not otherwise compromise the integrity of the grand jury process.” (21)
“If the grand jury investigated Volkswagen’s internal emails or technical documents, the Rule protects the fact of that investigation from disclosure.” (26)
Factual background
The Department of Justice investigated Volkswagen's use of defeat-device software and obtained approximately 5.9 to 6 million documents from Volkswagen's counsel, Jones Day, in response to a federal grand jury subpoena. Nearly all of the documents were marked as produced pursuant to Rule 6(e), while four documents lacked that label. Kalbers submitted a FOIA request seeking the factual evidence Jones Day presented to the Department, and the district court ordered disclosure of the responsive documents.
Procedural history
Kalbers sought under FOIA documents Volkswagen provided to the Department of Justice during its criminal investigation and plea negotiations. The district court consolidated the FOIA action with the Department's Rule 6(e) petitions, referred the matters to a special master, overruled objections to the special master's recommendation, and denied the Department's petitions in a minute order. The Department and Volkswagen appealed.
Remand instructions
The district court's order requiring disclosure of the nearly six million documents was reversed. The order was vacated as to the four documents lacking a Rule 6(e) label, and the district court was directed to evaluate whether the government must disclose those four documents.