Can I get copies of federal grand jury subpoenas sent to a Delaware county government through a public records request?

Official title

03-IB02 RE: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

A News Journal reporter asked New Castle County for copies of any subpoenas the U.S. Attorney's Office had issued to the county government or its employees since September 2002. The County refused, arguing federal law exempted the subpoenas from disclosure.

The AG agreed. Delaware's FOIA excludes records that another statute specifically exempts from disclosure, and the AG found that federal grand jury secrecy rules, which broadly bar revealing anything that would expose witness identities, testimony, or the direction of an investigation, function as exactly that kind of statute. Because a grand jury subpoena would tend to reveal who is being investigated and what the investigation is chasing, the AG concluded the County did not violate FOIA by keeping the subpoenas confidential.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware public body be forced to disclose federal grand jury subpoenas it received under a state public records request?

No, according to this opinion. The AG found that federal grand jury secrecy rules operate as a statute that specifically exempts these records from disclosure, so Delaware's FOIA does not require a public body to hand them over.

Why would a subpoena itself be kept secret if the underlying case might become public eventually?

According to this opinion, federal grand jury secrecy protections cover more than just transcripts. They also shield anything that would reveal witness identities, the substance of testimony, or the direction and strategy of an investigation, and a subpoena can reveal exactly that kind of information about who and what is under scrutiny.

Background and statutory framework

Delaware's FOIA opens public records to citizen inspection, 29 Del. C. § 10002(a), but excludes records "specifically exempted from public disclosure by statute or common law," id. § 10002(d)(6). The AG looked to the federal FOIA's parallel exemption for records "specifically exempt from disclosure by statute," 5 U.S.C. § 552(b)(3), and to Rule 6(e) of the Federal Rules of Criminal Procedure, which bars disclosure of matters occurring before a grand jury. Applying the D.C. Circuit's Fund for Constitutional Government v. National Archives & Records Service, which described Rule 6(e)'s disclosure ban as "absolute" and covering anything that would reveal witness identities, testimony, or investigative strategy, along with Durham v. United States Department of Justice on subpoenas specifically revealing the direction of an investigation, the AG concluded Rule 6(e) qualifies as a statute specifically exempting grand jury subpoenas from disclosure under Delaware's FOIA.

Citations

• 29 Del. C. § 10002(a) (public records open to citizen inspection)
• Id. § 10002(d)(6) (records exempted by statute or common law)
• 5 U.S.C. § 552(b)(3) (federal FOIA exemption for records specifically exempted by statute)
• Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 868 (D.C. Cir. 1981) (federal appeals court; grand jury secrecy under Rule 6(e) is absolute for FOIA purposes)
• Durham v. United States Department of Justice, 829 F. Supp. 428, 432 (D.D.C. 1993) (federal district court; grand jury subpoenas reveal witness identities and investigative direction)

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/01/17/03-ib02-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 03-IB02 (Del.A.G.), 2003 WL 397755

Office of the Attorney General

State of Delaware

Opinion No. 03 – IB02

January 17, 2003

RE: Freedom of Information Act Complaint Against New Castle County

*1 Kent County – Civil Division

Ms. Charlotte Hale

Staff Reporter

The News Journal

P.O. Box 15505

Dear Ms. Hale:

On December 16, 2002, we received your complaint alleging that New Castle County ("the County") violated the public records requirements of the Freedom of Information Act, 29 Del . C . Chapter 100 ("FOIA") by denying you access to "subpoenas issued to either New Castle County government or individual county employees by the U.S. Attorney's Office since September 1, 2002."

By letter dated December 18, 2003, we asked the County to respond to your complaint. Because of the holidays, we granted the County's request for an extension of time to respond. We received the County's response on January 10, 2003. The County claims that the subpoenas you requested are not subject to FOIA because they are exempted from disclosure by federal statute.

Relevant Statutes

FOIA requires that "[a]ll public records shall be open for inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body" 29 Del. C. § 10002(a).

FOIA exempts from disclosure "any records specifically exempted from public disclosure by statute or common law." Id. § 10002(d)(6).

Legal Analysis

Like Delaware's FOIA, the federal FOIA has an exemption for "matters that are specifically exempt from disclosure by statute." 5 U.S.C. § 552(b)(3). One such statute is Rule 6(e) of the Federal Rules of Criminal Procedure (codified in 18 U.S.C.), which generally prohibits the disclosure of "matters occurring before the grand jury, except as otherwise provided for in these rules."

In Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 868 (D.C. Cir. 1981), the federal appeals court held that Rule 6(e)'s "ban on disclosure is for FOIA purposes absolute." The exemption under FOIA "encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like." 656 F.2d at 869. "Witness names are clearly covered, as are documents subpoenaed as exhibits. Potential witnesses and potential documentary exhibits, while less clearly within the rule, are exempt if disclosure would reveal the direction and strategy of the investigation." 656 F.2d at 869. See also Durham v. United States Department of Justice, 829 F. Supp. 428, 432 (D.D.C. 1993) (disclosure of grand jury subpoenas "would enable the identification of witnesses" and show "the direction of the investigation").

We follow these federal authorities, and conclude that Rule 6(e) of the Federal Rules of Criminal Procedure is a statute that specifically exempts the disclosure of grant jury subpoenas under Delaware's FOIA.

Conclusion

*2 For the foregoing reasons, we determine that the County did not violate FOIA by denying you access to the grand jury subpoenas you requested.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 03-IB02 (Del.A.G.), 2003 WL 397755