The opinion of the court was delivered by: BRYANT
The Senate Committee on the Judiciary (Committee) has legislative and oversight responsibility for the Department of Justice (DOJ). The Committee is charged by Senate Rules with the responsibility for examining the application, administration and execution of those laws, or parts of laws within the Committee's legislative jurisdiction.
In addition, the Crime Control Act of 1976
requires that Congress provide legislative authorization for all DOJ appropriations. As part of its general oversight responsibilities the Committee has paid particular attention to the DOJ's Public Integrity Section. On July 23, 1980, the Committee charged the Senate Subcommittee on Improvements in Judicial Machinery (Subcommittee) with the task of examining the Public Integrity Section's investigation of Robert L. Vesco.
The DOJ balked at providing access to these Vesco records and on November 24, 1980 filed a motion with this court seeking guidance on the applicability of Federal Rule of Criminal Procedure 6(e) to the Subcommittee's request. On December 24, 1980 the Subcommittee filed an amicus curiae brief opposing the Department's interpretation of Rule 6(e).
Rule 6(e) provides in part that no one shall "disclose matters occurring before the grand jury, except ... when so directed by a court preliminarily to or in connection with a judicial proceeding." If a document at issue does not "disclose matters occurring before the grand jury" it does not fall under the protection of Rule 6(e). If the document does make such a disclosure the court is called upon to determine whether the party seeking the document does so "in connection with a judicial proceeding" and whether the party has demonstrated a particularized need for the document. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 217-23, 99 S. Ct. 1667, 1672-1675, 60 L. Ed. 2d 156 (1979).
Since the Subcommittee's general oversight proceedings do not constitute a "judicial proceeding," In re Grand Jury Investigation of Uranium Industry, 1979-2 Trade Cases (CCH) P 62,798 at pp. 78,639; 78,643-78,644 (D.D.C. August 16, 1979), if a category of documents fall under Rule 6(e) the court need not proceed to examine any particularized need for the documents and the Subcommittee's request for that category of documents must therefore fail.
Rule 6(e)"s prohibition against "disclosing matters occurring before the grand jury" is deceptive in its simplicity. The courts have generally agreed that transcripts or any account of what actually occurred before the grand jury falls under the protection of Rule 6(e).
The controversy stems from various attempts to block access to documents that were subpoenaed for and/or presented to the grand jury. In the seminal case in this area Chief Judge Lumbard held that
... when testimony or data is sought for its own sake for its intrinsic value in furtherance of a lawful investigation rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same documents had been, or were presently being, examined by a grand jury. ( United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2nd Cir. 1960).)
Thus, when the Committee sought Uranium investigation documents in 1979 this court held that the mere fact that these documents had also been revealed to the grand jury did not make them protected by Rule 6(e). In re Grand Jury Investigation of Uranium Industry, supra at 78,642.
To summarize, the courts have developed two basic rules of thumb in the 6(e) area: first, documents sought for their own sake are not protected by Rule 6(e) merely because they were subpoenaed by or shown to the grand jury; and, second, documents the disclosure of which would reveal what actually occurred before the grand jury and would thus frustrate the purpose of grand jury secrecy are governed by Rule 6(e).
Applying the above to the seven categories of documents requested by the Subcommittee,
the court concludes that only the inventory of all documents subpoenaed by the grand jury and those parts of the DOJ memoranda that reveal what actually occurred before the grand jury fall under the protection of Rule 6(e). The American Express and hotel records should not be shielded simply because some of those records were seen by the grand jury. The analyses of these records presents a closer question since the Department states that the analyses were prepared by the FBI for the grand jury's use and did not pre-exist the grand jury. Memorandum of DOJ at 12. Since the Subcommittee is looking into the Public Integrity Section's performance and not the grand jury itself, these record analyses would seem to fall into that category of unprotected documents that have a significance of their own here as part of the Public Integrity Section's investigation of Robert Vesco. The court therefore holds that the analyses of the American Express and hotel records are not protected by Rule 6(e). The court concurs in the DOJ's view that the Articles of Incorporation for Southern Ventures falls into that category of specifically designated documents that pre-exist the grand jury and are not protected by Rule 6(e) merely because they were shown to the grand jury.
Although the scope of Rule 6(e) is by no means self-evident, the court has concluded that the Subcommittee's request for an inventory of all documents subpoenaed by the grand jury falls within that scope. The Subcommittee is undoubtedly seeking this inventory "for its own sake" to learn more about the Public Integrity Section's conduct and not to discover what occurred before the grand jury. But the court shares the DOJ's concern that producing such an inventory will inevitably set a dangerous precedent by revealing a great deal about the scope and focus of the grand jury's investigation. Securities & Exchange Com'n v. Dresser Indus., 628 F.2d at 1382 (purpose of 6(e) is, inter alia, to protect the strategy or direction of the grand jury investigation); United States v. Stanford, 589 F.2d 285, 291 n.6 (7th Cir. 1978) (dictum), cert. denied, 440 U.S. 983, 99 S. Ct. 1794, 60 L. Ed. 2d 244 (1979); Davis v. Romney, 55 F.R.D. 337, 341-42 (E.D.Pa.1972) (dictum). The court therefore reluctantly concludes that an inventory of all documents subpoenaed by the grand jury "disclose(s) matters occurring before the grand jury" and is protected by Rule 6(e).
Finally, the matter of the DOJ's own Vesco memoranda and recommendations must be resolved. The Subcommittee acknowledged in its request that passages of these memoranda would reveal matters occurring before the grand jury and can therefore be deleted.
The Department responds that after making all the necessary deletions the memoranda would be unintelligible. Memorandum of the DOJ at 12. Having been immersed in Freedom of Information Act and national security cases, this court can indeed commiserate with litigants mired in heavily redacted documents. But it is for the Subcommittee and not the Department to determine what is and what is not of value to the Subcommittee oversight function. The Department should carefully redact the memoranda and recommendations, removing ...