Not all grand jury-related information is confidential under FOI Act

• The Justice Department must release the dates of interviews with preliminary witnesses in a grand jury investigation because they are not inherently confidential, a federal appellate court has ruled.

Feb. 4, 2005 — Partial calendar information relating to the Justice Department’s participation in a grand jury investigation that does not reveal juror or witness names must be released under the Freedom of Information Act, the U.S. Appeals Court in Washington, D.C., has ruled.

A convicted drug dealer representing himself in court won the right to see the dates on which federal prosecutors interviewed potential witnesses in a grand jury investigation of alleged money laundering by his lawyer.

U.S. District Judge David B. Sentelle, writing for a unanimous three-judge panel, ruled that grand jury confidentiality was not meant to draw an impenetrable “veil of secrecy” around all grand jury-related information, only such information as would “tend to reveal some secret aspect of the grand jury’s investigation.”

In 1991, Ramon Lopez was convicted in federal court of cocaine possession with intent to distribute and conspiracy to possess cocaine. Years later, Lopez learned that the same grand jury that issued his indictment had also investigated his lawyer, A. Scott Miller, for money laundering. Miller pleaded guilty to that charge in 1994.

Lopez used the FOI Act in 1997 to ask the Justice Department for records relating to the grand jury’s investigation of Miller. He requested copies of all grand jury subpoenas for documents and testimony transcripts, as well as information relating to “preliminary witness interviews” and “subsequent witness debriefings.”

When the government failed to give him the records in 1999, Lopez, representing himself, sued.

Acknowledging the well-accepted notion, codified in a federal criminal procedure rule and incorporated into the FOI Act by Exemption 3, that government attorneys cannot “disclose a matter occurring before a grand jury,” Lopez told the court that he was not seeking such information as juror or witness names that the rules were meant to protect. Instead, he stressed that his request was limited to the dates corresponding to grand jury-related subpoenas, interviews and debriefings.

The trial court ruled in favor of the Justice Department’s broad assertion that Exemption 3 protected all the requested information. Lopez appealed.

The U.S. Court of Appeals in Washington, D.C., reversed one part of the trial court’s ruling and found that the Justice Department must give Lopez the preliminary witness interview dates but could withhold the dates of documentary and testimonial subpoenas which “tend to reveal the direction of the investigation,” as do the dates of “subsequent witness debriefings,” informational sessions held for grand jury witnesses post-testimony.

Post-testimony witness debriefing dates inherently indicate “that the witness did, in fact, testify before the grand jury,” the court wrote. That produced “a nexus between disclosure of the information and revelation of the grand jury’s strategy,” exactly what the federal criminal procedure rule and the FOI Act’s Exemption 3 sought to avoid.

In stopping short of extending Exemption 3 protection to the preliminary witness interview dates, Sentelle wrote that prosecutors can interview witnesses in advance of grand jury testimony for two distinct reasons: for grand jury screening purposes and for the prosecutor’s own investigatory goals. Because the interviews could serve either purpose, the court refused to say that their dates were always a meaningful window into grand jury investigations.

Although the court rejected the Justice Department’s blanket withholding of preliminary witness interview dates, it did not discount the possibility that the dates could be deemed confidential in certain circumstances. Sentelle instructed the government that it could always make case-specific arguments for Exemption 3’s applicability if it ever felt that the dates’ disclosure would clearly correspond to grand jury concerns.

(Lopez v. Dep’t of Justice; Counsel: Sidney A. Rosenweig and Robert S. Litt; Washington, D.C.) — RL

© 2005 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page