Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
This appeal challenges several rulings made by the district court in a Freedom of Information Act (FOIA) case. The requesting party is the Senate of the Commonwealth of Puerto Rico; the agency addressed is the Department of Justice (DOJ). Several years ago, the Senate of Puerto Rico launched an investigation into possible official complicity in a 1978 politically-inspired homicide; as part of that endeavor, the Senate submitted a FOIA request to the DOJ seeking information relating to the homicide. The DOJ released some of the material sought in the request, but claimed various FOIA exemptions for several withheld documents. In a series of rulings, the district court upheld all of the DOJ's exemption claims.
We conclude that the district court ruled correctly regarding the DOJ's claim that production of certain law enforcement records "would ... constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). We vacate the other contested rulings, however, because the record does not bear out the DOJ's exemption claims. We remand those portions of the case so that the DOJ will be afforded an opportunity to sustain its claims. If, on remand, the DOJ does not provide adequate support for the asserted exemptions, it will be obliged to release the material still sought by the Senate of Puerto Rico.
On July 25, 1978, two Puerto Rican political activists, Arnaldo Rosado and Carlos Soto, were killed by Puerto Rican police officers at Cerro Maravilla, a remote mountain location some distance from San Juan. The incident soon generated fierce controversy as conflicting accounts of the day's events emerged. The official explanation
The Special Investigations Division of the Puerto Rico Department of Justice issued a report on this affair in August 1978, absolving the police of culpability in the two deaths. Further investigations (in 1978 and 1980) were undertaken by the Civil Rights Division of the DOJ and other federal law enforcement authorities, including the Federal Bureau of Investigation (FBI), to determine whether the police officers had violated the victims' civil rights. No criminal charges were brought as a result of these inquiries, and the DOJ's investigations were formally closed on April 16, 1980.
In early 1981, the Judiciary Committee of the Senate of Puerto Rico began yet another investigation into the Cerro Maravilla incident. As part of that probe, the Senate submitted to the DOJ, pursuant to FOIA, 5 U.S.C. § 552 (1982), a request for "all evidence" collected by the DOJ during its earlier investigations.
The DOJ, citing a backlog of FOIA requests,
In the interim, on February 6, 1984, a federal grand jury in Puerto Rico returned a forty-four count indictment against ten police officers involved in the Cerro Maravilla incident, and a criminal trial commenced shortly thereafter. In mid-April, the DOJ's Office of Legal Policy affirmed the initial DOJ action on the Senate's FOIA request,
While these motions were pending before the district judge, in late March 1985, the criminal trial in the federal district court in Puerto Rico came to an end, with guilty verdicts returned against the principal defendants. The district judge then ordered the parties to "apprise the Court of their respective positions in light of this development,"
As a result of that reevaluation, approximately 900 additional pages were released to the Senate, but the DOJ continued to resist disclosure of other material in its possession. On October 5, 1985, the DOJ renewed its motion for summary judgment, supported by two declarations asserting FOIA exemptions (B)(2), (3), (5), (7)(A), (7)(C) and (7)(D) to justify the continued withholding of documents in whole or in part. Following the submission of an opposition to this motion, and the Senate's own cross-motion for summary judgment, the district court granted the defendants' motion in every particular save one; the exception related to the DOJ's claim that disclosure of nineteen pages would interfere with a separate investigation then in progress in Puerto Rico, and thus fell within exemption (7)(A).
The court directed the defendants to "submit more particular facts"
The Senate's first argument on appeal relates to the district court's May 10, 1985 order holding the defendants' original (7)(A) claim moot and ordering a reevaluation of all withheld material. In the Senate's view, the court should have granted the Senate's pending summary judgment motion immediately, thereby ordering production of all requested material, once the sole justification defendants had originally pressed for withholding that material no longer applied. Given the special circumstances of this case, we hold that the district judge properly rejected the Senate's plea.
In Holy Spirit Association v. CIA, 636 F.2d 838, 846 (D.C.Cir.1980), vacated in part as moot, 455 U.S. 997, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982), we emphasized that "agencies [may] not make new exemption claims to a district court after the judge has ruled in the other party's favor," nor may they "wait until appeal to raise additional claims of exemption or additional rationales for the same claim." See also Ryan v. Department of Justice, 617 F.2d 781, 792 (D.C.Cir.1980) (warning of the "danger of permitting the Government to raise its FOIA exemption claims one at a time, at different stages of a district court proceeding"); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 482 F.2d 710, 721-22 (D.C.Cir.1973) (upholding denial of agency's motion for rehearing in which it raised, for the first time, claim of executive privilege), rev'd on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); cf. Vaughn v. Rosen, 523 F.2d 1136, 1143 (D.C.Cir.1975) (appeals court would not consider rationale for applying exemption not raised in district court).
The Senate of Puerto Rico invokes the Holy Spirit rule here, despite the absence of a formal district court "rul[ing] in the [Senate's] favor";
Our decisions in this area reflect interrelated concerns. First, the "interests of judicial finality and economy," Holy Spirit, 636 F.2d at 846, have special force in the FOIA context, because the statutory goals — "efficient, prompt, and full disclosure of information," Jordan v. United States Dept. of Justice, 591 F.2d 753, 755 (D.C.Cir.1978) (en banc) (emphasis added) — can be frustrated by agency actions that operate to delay the ultimate resolution of the disclosure request. See Ryan, 617 F.2d at 792 (delay accompanying agency's assertion of exemptions seriatim "could easily render the appellants' claim futile"). Furthermore, fairness to parties seeking disclosure ordinarily requires that they be accorded a full and concentrated opportunity to challenge and test comprehensively the agency's evidence regarding all claimed exemptions. See Jordan, 591 F.2d at 779-80. We will not allow an agency "to play cat and mouse by withholding its most powerful cannon until after the District Court has decided the case and then springing it on surprised opponents and the judge." Grumman Aircraft, 482 F.2d at 722.
The district judge signaled no failure to appreciate and grapple with these considerations when he allowed the DOJ to reevaluate
We thus reject the Senate's contention that the termination of the trial in Puerto Rico, and the attendant collapse of defendants' original (7)(A) claim, are "functional[ly] equivalent" to an adverse ruling by the district court. We note, moreover, that even if the district court had "ruled in the Senate's favor" by granting its motion for summary judgment, this case might have been the exceptional one in which the DOJ would have been granted permission to raise additional exemption claims on appeal. As this court has observed:
Jordan, 591 F.2d at 780 (emphasis added); see also Washington Post Co. v. Department of Health and Human Services, 795 F.2d 205, 208-09 (D.C.Cir.1986) (government cannot raise new element of a numbered exemption after remand absent "`extraordinary circumstance[s]' justifying an exception to the rule that the government must assert all of its exemptions in the original proceedings before the district court"). We make no broad pronouncement here on whether or when conclusion of the law enforcement proceedings with reference to which a (7)(A) claim is advanced constitutes a "substantial change in the factual context of the case" sufficient to invoke an appellate court's discretion under 28 U.S.C. § 2106 to require "further proceedings ... just under the circumstances." It suffices to hold that the district judge did not abuse his discretion when he evaluated the situation at hand as one inappropriate for application of a rigid "press it at the threshold, or lose it for all times" approach to the agency's FOIA exemption claims.
We turn next to the Senate's challenges to the district court's rulings upholding the DOJ's invocation of exemptions (b)(3), (b(5), and (b)(7)(C) to justify the continued withholding of specified material.
A. Exemption (b)(3): Grand Jury Exhibits
In its May 1981 request, the Senate asked for "all evidence collected by the U.S. Department of Justice and any of its sub-divisions" regarding the Cerro Maravilla events,
Exemption (b)(3) of FOIA permits an agency to withhold material "specifically exempted from disclosure by statute ... provided that such statute [requires withholding] in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3). The Federal Rules of Criminal Procedure, in turn, prohibit, with exceptions not relevant here, disclosure of "matters occurring before [a] grand jury." FED.R.CRIM. P. 6(e)(2). Relying on the incorporation of Rule 6(e) within exemption (b)(3),
We have never embraced a reading of Rule 6(e) so literal as to draw "a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury." SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). There is no per se rule against disclosure of any and all information which has reached the grand jury chambers; as the district court correctly observed, the touchstone is whether disclosure would "tend to reveal some secret aspect of the grand jury's investigation" such matters as "`the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'"
In Dresser, we upheld enforcement of an SEC subpoena for documents that had also been the subject of a grand jury subpoena. In holding that compliance with the SEC's subpoena was not blocked by Rule 6(e), we stressed first, that the documents at issue were created for independent corporate purposes unrelated to the grand jury's investigation, and second, that they were subpoenaed directly from Dresser without mention of the grand jury. Dresser, 628 F.2d at 1382-83. Therefore, disclosure to
The district court held Dresser inapplicable to this case because "[p]laintiff's request expressly includes grand jury exhibits."
The mere fact that the Senate of Puerto Rico's request "included" grand jury exhibits is not dispositive of the DOJ's Rule 6(e) claim. The request — for "all evidence" pertaining to the Cerro Maravilla affair — was not limited to grand jury exhibits; had the DOJ released these exhibits, along with the over 1,000 pages of non-grand jury material it did release,
The district judge stated that "[t]he release of grand jury exhibits will reveal much about the scope and focus of the grand jury's investigation,"
This says little more than that the material has been presented to the grand jury; unless this fact alone automatically exempts the material, a position we reject, it is incumbent upon us to require some affirmative demonstration of a nexus between disclosure and revelation of a protected aspect of the grand jury's investigation.
We recognize the importance of maintaining the secrecy of grand jury proceedings, and acknowledge the "necessarily broad" scope of Rule 6(e). See Fund for Constitutional Government, 656 F.2d at 869. It may turn out, in this case, that most, or even all, of the material withheld pursuant to exemption (b)(3) cannot be disclosed without compromising the secrecy of a grand jury's deliberations. We hold only that the defendants have not yet supplied the information a court must have in order to intelligently make that judgment.
B. Exemption (b)(5): Deliberative Process and Attorney Work Product Privileges
The DOJ withheld a number of documents, or portions thereof, pursuant to the statutory exemption for "memorandums or letters which would not be available by law to a party other than the agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (1982). The DOJ claimed generally that the documents expressed "candid and confidential legal policy advice ... subject to the attorney work product privilege, as well as being part of the Department's pre-decisional deliberative process."
The district court held that the DOJ provided sufficient justification for its deliberative process/attorney work product exemption decisions insofar as the Department set out "each document being withheld, why it is being withheld[,] and the nature of the document to the extent feasible without revealing any details regarding the privileged contents of the document."
We begin with two fundamentals. First, Congress intended to confine exemption (b)(5) "as narrowly as [is] consistent with efficient Government operation." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C.Cir.1980) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. at 9 (1965)). Second, documents covered
We do not endeavor an encompassing definition of "conclusory assertion"; for present purposes, it is enough to observe that where no factual support is provided for an essential element of the claimed privilege or shield, the label "conclusory" is surely apt. The information provided by the DOJ — consisting almost entirely of each document's issue date, its author and intended recipient, and the briefest of references to its subject matter
We have previously identified two prerequisites to the assertion of the deliberative process privilege:
Coastal States, 617 F.2d at 866; accord Jordan, 591 F.2d at 774; Paisley v. CIA, 712 F.2d 686, 698 (D.C.Cir.1981), vacated in part on other grounds, 724 F.2d 201 (D.C.Cir.1984); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C.Cir.1982). A document is "predecisional" if it precedes, in temporal sequence, the "decision" to which it relates. Accordingly, to approve exemption of a document as predecisional, a court must be able "to pinpoint an agency decision or policy to which the document contributed." Paisley, 712 F.2d at 698. We search in vain through the supporting material submitted by the DOJ for any identification of the specific final decisions to which the advice or recommendations contained in the withheld documents contributed; absent that, we are not positioned to pass upon the applicability vel non of this privilege.
The failure to specify the relevant final decision constitutes a sufficient ground for remanding this aspect of the case to the district court. We remind the DOJ, however, that it must do more if it chooses to renew predecisional characterizations as a basis for exempting documents from FOIA's disclosure rule. Predecisional communications "are not exempt merely because they are predecisional; they must also be a part of the agency give-and-take ... by which the decision itself is made." Vaughn, 523 F.2d at 1144. The agency must establish "what deliberative process is involved, and the role played by the
We are cognizant that general guidelines are of limited utility in this area, for "the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process." Id. at 867. Our case law, however, identifies two factors that can assist the court in determining whether this privilege is available: the "nature of the decisionmaking authority vested in the officer or person issuing the disputed document," Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C.Cir.1981), and the relative positions in the agency's "chain of command" occupied by the document's author and recipient. Andersen, 679 F.2d at 258; see also Schlefer v. United States, 702 F.2d 233, 238 (D.C.Cir.1983) (intra-agency memoranda from "subordinate" to "superior" more likely to be deliberative in character than documents traveling in opposite direction); Bristol-Myers Co. v. FTC, 598 F.2d 18, 28 n. 20 (D.C.Cir.1978) ("[D]etailed information about the agency's decision-making process is essential ... to a fair determination of the agency's [deliberative process] claims."). It does not appear from the current record that the DOJ has adverted with care to the case law we have here recalled.
The information provided by the DOJ with respect to its attorney work-product claims is similarly inadequate. Here again, the claims have surface plausibility; internal memoranda concerning the status of a criminal investigation, prepared by DOJ attorneys in the course of their law enforcement duties, are surely the kind of documents commonly sheltered by the work product doctrine. But here too, a critical element of the DOJ's entitlement to the claimed shield awaits proof. The work product doctrine "does not extend to every written document generated by an attorney," Jordan, 591 F.2d at 775; rather, work product covers only documents prepared "in contemplation of litigation." Sears, 421 U.S. at 154, 95 S.Ct. at 1518; Coastal States, 617 F.2d at 864; Bristol-Myers, 598 F.2d at 28-29; see also FED.R.CIV.P. 26(b)(3) (documents "prepared in anticipation of litigation or for trial" are discoverable only upon a showing of "substantial need").
By affidavit, the DOJ asserted that the withheld documents "were prepared by Civil Rights Division attorneys in anticipation of litigation."
In particular, we note that the DOJ investigation into the Cerro Maravilla incident was closed officially on April 16, 1980,
We conclude, therefore, "not that the documents are not exempt as a matter of law, but that the agency has failed to supply us with even the minimal information necessary to make a determination." Coastal States, 617 F.2d at 861. We appreciate the difficult task confronting district court judges facing inherently fact-dependent exemption (5) claims, and the necessarily limited role proclamations from appellate courts can play in this process. Our decision in Mead Data remains perhaps the best general guide to both the detail agencies must provide to support exemption (5) claims and, correlatively, the level of scrutiny appropriate in court evaluation of those claims.
In reviewing the Air Force's assertion of the attorney-client privilege in Mead Data, we found adequate evidence "that the information ... was communicated to or by an attorney as part of a professional relationship," 566 F.2d at 253; however, the material submitted by the Air Force either gave "no indication as to the confidentiality of the information on which [the documents were] based," id. at 253-54 (emphasis added), a factor essential to the existence of the privilege, or supported a contrary inference that "at least part of [the document's] information base was not confidential." Id. at 255 (emphasis added). Similarly, with respect to the Air Force's "deliberative process" claim, the court examined each document's position within the agency's decision making process. Documents shown to contain "evaluations, opinions, and recommendations [constituting] the raw materials which went into the decision" in question — whether to contract with West Publishing Company regarding a computerized legal research system, id. at 248 — were protected from disclosure. Id. at 257. On the other hand, a document merely summarizing the offers and counteroffers made by each side during negotiations was not considered reflective of the agency's deliberative process and could be disclosed consistent with the policy of "encouraging the free exchange of ideas among administrative personnel." Id.
FOIA enunciates a "general philosophy of full agency disclosure," Jordan, 591 F.2d at 755, and therefore requires attentive judicial review of agency exemption claims. The review obligation FOIA imposes upon courts requires us to demand more detailed information than the DOJ has submitted in this case. Faithful implementation of the statute "add[s] significantly to the resource costs an agency" — and, we might add, reviewing courts — "must bear if [the agency] chooses not to disclos[e] material." Mead Data, 566 F.2d at 261. The costs must be borne, however, if the congressional policy embodied in FOIA is to be well served.
C. Exemption (b)(7)(C): Unwarranted Invasions of Personal Privacy
Exemption (b)(7)(C) permits an agency to withhold "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Faced with a claim that this exemption applies to withheld material, the district court must "balanc[e] the privacy interest at stake against the public interest in disclosure." Lesar v. Department of Justice, 636 F.2d 472, 486 (D.C.Cir.1980); accord Stern v. FBI, 737 F.2d 84, 91 (D.C.Cir.1984); Department of the Air Force v. Rose, 425 U.S. 352, 370-73, 96 S.Ct. 1592, 1603-04, 48 L.Ed.2d 11 (1976). The (7)(C) exemption is notable in this regard. As to other exemptions, "Congress has struck the balance and the duty of the court is limited to finding whether the material is within the defined category." Lesar, 636 F.2d at 486 n. 80. Exemption (7)(C)'s balance is not similarly "tilted emphatically in favor of disclosure." Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981).
We find no error in the district court's decision to uphold these exemption claims in their entirety. The privacy interests at stake here are indeed substantial. There is little question that disclosing the identity of targets of law-enforcement investigations can subject those identified to embarrassment and potentially more serious reputational harm. See Fund for Constitutional Government, 656 F.2d at 863-65 (revelation that an individual was investigation subject represents a "significant intrusion" on privacy); Baez v. Department of Justice, 647 F.2d 1328, 1338 (D.C.Cir.1980) (quoting with approval from an FBI agent's affidavit that "[t]here can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation"). Other persons involved in the investigation — witnesses, informants, and the investigating agents — also have a substantial interest in seeing that their participation remains secret. See Lesar, 636 F.2d at 488 ("Those cooperating with law enforcement should not now pay the price of full disclosure of personal detail."); id. at 487-88 (recognizing FBI agents' claims to privacy in matters related to official duties); Bast, 665 F.2d at 1254 ((7)(C) exemption recognizes the "stigma potentially associated with law enforcement investigations and affords broad privacy rights to suspects, witnesses, and investigators"). And while the Senate of Puerto Rico professes disbelief that the grand jury translator would be "personally embarrassed by the mere disclosure of his identity,"
On the other side of the scale, the Senate points to the "paramount public interest ... in uncovering all the true facts, and the identities of all the relevant actors, concerning Cerro Maravilla."
FOIA specifically provides that the district court "may examine the contents of [withheld] agency records in camera to determine whether such records or any part thereof shall be withheld under any of the [statutory] exemptions." 5 U.S.C. § 552(a)(4)(B) (1982). A court's in camera resolution of any issue, however, runs counter to the fundamental principles on which our adversary system is based; we therefore have cautioned on numerous occasions
The DOJ's original (7)(A) exemption claim became moot when the prosecution in the federal district court in Puerto Rico terminated. See supra pp. 579-581. The DOJ thereafter revived this exemption claim to keep from public view material that "relates not only to the Cerro Maravilla investigation which is no longer pending, but also to a continuing investigation being conducted in San Juan, Puerto Rico [involving] pending and prospective criminal enforcement proceedings against third parties."
Review of decisions based upon in camera examinations is difficult in the best of circumstances, but here those difficulties prove insurmountable. We do not quarrel with the district court's decision to order that examination, in light of the sworn declarations submitted by the DOJ. However, having ourselves examined the documents at issue, we are unable to discern if, how, or why the district court determined that no "reasonably segregable portion[s]," 5 U.S.C. § 552(b)(9), of this material could be disclosed. It is also unclear why the district court felt constrained to deny the Senate even a summary explanation of the basis for the court's ruling. In short, there is simply not enough in the way of a "decision" here to enable the panel to exercise this court's review function. We must therefore remand the district court's order of March 26, 1986 for a more complete accounting of the ruling contained therein.
To recapitulate, we hold that the district court did not abuse its discretion in permitting the DOJ to press additional FOIA exemptions after its original, all-encompassing (7)(A) exemption claim became moot. With respect to the exemption claims subsequently featured, the DOJ sustained its burden of justification only with respect to the material withheld under exemption (7)(C). We therefore vacate the district court's grant of summary judgment in favor of the DOJ on the applicability of exemptions (b)(3), (b)(5), and (b)(7)(A) to the withheld material, and remand these portions of the case for proceedings consistent with this opinion.
It is so ordered.
The following reproduces in their entirety all entries in the DOJ's Index of Withheld Documents referring to FOIA exemption (b)(5), 5 U.S.C. § 552(b)(5).
DOCUMENT DELETION EXEMPTION -------- -------- --------- C-9 Memo dated 12-18-78 from Ralph Martin, One phrase of predecisional deliberative material (B)(5) Attorney, CRT to William Gardner, (former) and attorney work product on page 1, a Chief, Criminal Section, CRT (4 pages) paragraph containing attorney work product RE: Summary of case and the candid views and discussion is deleted from page 2. Material containing strategy and predeliberative thought processes is deleted on pages 3 and 4. Information concerning matters occurring before the Grand (B)(3) and Jury is deleted on pages 1, 3, and 4 to protect [FED.R.CRIM.P. the secrecy of the Grand Jury process. 6(e)] C-15 Memo dated 1-9-80 from Drew S. Information pertaining to matters occurring (B)(3) Days, III, (former) Deputy Attorney General before the Grand Jury and sentences discussing [FED.R.CRIM.P. AAG-CRT to the Acting Deputy Attorney the strategy of developing the case to 6(e)], (B)(5) General (DAG). (3 pages) RE: Summary of protect the secrecy of the Grand Jury process Cerro Maravilla case and protect attorney work-product paragraphs 4 and 5 on page 2. C-17 Memo dated 1-31-80 from Ralph Martin, Information pertaining to Grand Jury testimony (B)(3) Attorney, CRT to Daniel Rinzel, (former) is deleted on pages 1, 2, 4, 5, 6, 7, 8 and [FED.R.CRIM.P. Chief, Criminal Section, CRT. (9 pages) RE: 9 to protect the secrecy of the Grand Jury 6(e)], (B)(5) Summary of status of Cerro Maravilla case case. Information pertaining to pre-decisional and deliberative and strategies are deleted on pages 1, 2, 4, 5, 7, 8, and 9 to protect the deliberative process and attorney work-product. C-23 Memo dated 4-10-80 from Stephen Information pertaining to the strategy of the (B)(5) Clark, Attorney, CRT to the File. (1 page) investigation and preparation for litigation is RE: Telephone conversation deleted to protect attorney work-product. C-24 Memo dated 4-10-80 from Daniel Information pertaining to pre-decisional advice (B)(5) Rinzel, (former) AAG-CRT. (2 pages) RE: and recommendations is deleted to protect Proposed closing and press release the deliberative process (on page 2). C-27 Memo dated 8-5-80 from Sudie (Hooper) Information pertaining to matters occurring (B)(3) to Daniel Rinzel, (former) Chief, Criminal before the Grand Jury and the development [FED.R.CRIM.P. Section CRT. (2 pages) RE: News articles. of a trial strategy are deleted to protect the 6(e)], (B)(5) secrecy of the Grand Jury process and to protect attorney work-product. C-28 Memo dated 8-19-80 from Stephen Information pertaining to the preparation of (B)(5) Clark, Attorney, CRT, to the File. (1 page) information and matters for litigation is deleted RE: Telephone conversation as attorney work-product. C-29 Memo dated 8-20-80 from Stephen Information pertaining to the testimony of a (B)(3) Clark, Attorney, CRT, to Charles Wellford, Grand Jury witness is deleted on page 1, [FED.R.CRIM.P. Deputy Administrator, Federal Justice Research paragraph 2 to protect the secrecy of the 6(e)], (B)(5) Program. (2 pages) RE: Report on Grand Jury process and candid discussion status of Cerro Maravilla case. and recommendation as to strategy is deleted to protect the intra-agency deliberative process and attorney work-product. C-30 Memo dated 9-12-80 from Daniel Information pertaining to Grand Jury testimony (B)(3) Rinzel, (former) Chief, Criminal Section, CRT is deleted on page 1, paragraph 4 [FED.R.CRIM.P. to James P. Turner, Deputy Assistant Attorney, which extends to page 2 to protect the secrecy 6(e)] Attorney General (DAAG), CRT. (2 of the Grand Jury process. pages) RE: Additional investigation
Material in paragraphs 2 and 3 of page 1 (B)(5) and paragraph 1 of page 2 is deleted that contains information prepared in anticipation of litigation and opinions in regard to preparing a trial strategy. C-33 Memo dated 9-30-80 from Stephen Information gathered in preparation for trial (B)(5) Clark, Attorney, CRT to the File. (1 page) and discussion of litigation strategy is deleted RE: Telephone conversation to protect attorney work-product. C-35 Memo dated 10-9-80 from Drew S. Information pertaining to witnesses appearing (B)(3) Days, III, (former) AAG-CRT to the DAG. before the Grand Jury is deleted on [FED.R.CRIM.P. (2 pages) RE: pages 1 and 2 to protect the secrecy of the 6(e)], (B)(5) Grand Jury. The analysis and discussion is deleted as attorney work-product and pre-decisional deliberative discussions.
This approach is consistent with the Supreme Court's recent treatment of the nature of the "disclosure" prohibited by Rule 6(e). In United States v. John Doe, Inc. I, 481 U.S. ___, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987), the Court held that continued use of grand jury materials in a civil action by a DOJ attorney who had been involved in the grand jury investigation did not constitute "disclosure" within the meaning of the Rule. Id. at 1659-60. Although the decision to file the civil complaint was based on evidence obtained by the grand jury, id. at 1661 n. 6, the filing of the complaint did not in itself constitute disclosure of that evidence since the complaint "does not quote from or refer to any grand jury transcripts or documents subpoenaed by the grand jury, and does not mention any witnesses before the grand jury, or even refer to the existence of a grand jury." Id. at 1661. No third party, reading this complaint, would learn anything of what took place within the grand jury chambers.