FOIA Exemption 3 Applied To Documents Protected By Rule 6(e)

Introduction

Every document production to the Department of Justice (DOJ) contains some variation of the disclaimer “FOIA Confidential Treatment Requested Pursuant to Rule 6(e).” But how much protection does this language actually provide? Practitioners may be surprised to learn that the Freedom of Information Act (FOIA) does not provide as much protection as expected, especially where the documents are garden-variety business records that are not created in connection with the grand jury investigation. In fact, the degree of protection depends on the circuit. 

Background

There are nine exemptions to FOIA that authorize federal agencies to withhold information sought in a FOIA request. For example, the government must withhold material that could reasonably be expected to interfere with ongoing law enforcement proceedings or material that could disclose law enforcement investigation procedures.¹ Another exemption protects a company's trade secrets or sensitive commercial or financial information.²

This alert focuses on FOIA Exemption 3, which requires agencies to withhold information that is “specifically exempted from disclosure by statute.”³ Under this exemption, courts have found that laws protecting trade secrets,⁴ U.S. Department of Defense data⁵ and the identities of children in criminal proceedings⁶ — among other such laws — qualify as Exemption 3 statutes. 

Federal Rule of Criminal Procedure 6(e) is also an Exemption 3 statute. Rule 6(e) prohibits the government from disclosing “a matter occurring before the grand jury.”⁷ Rule 6(e) serves to protect the inner workings of a grand jury, including its deliberative and investigative processes. And while it is widely accepted that Rule 6(e) shields the identities of witnesses, witness testimony and grand jury transcripts from disclosure, it is less clear whether it protects pre-existing documents that are in the possession of the federal government solely because of a grand jury investigation. 

State of the Law in the Second Circuit 

In the Second Circuit, to protect pre-existing subpoenaed documents from FOIA disclosure, the government must show the material is subject to Rule 6(e) by demonstrating how disclosure of the material would reveal some secret aspect of the grand jury's investigation.

In Grynberg v. U.S. Department of Justice,  the court explained that to “sustain its burden of proving the applicability of a FOIA exemption, the government must ‘describe the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the information withheld logically falls within the claimed exemption.'”⁸ Applying this standard to Rule 6(e), the government must establish a “nexus between disclosure and revelation of a protected aspect of the grand jury's investigation,” thereby demonstrating that the material would “reveal secret aspects of the grand jury proceedings.”⁹

The Second Circuit has found this standard met in various circumstances. In Grynberg, the panel affirmed that Rule 6(e) protected subpoenaed bank records, court transcripts and corporate records. It explained that disclosure would reveal “where the Government sought its evidence, the sources of information it had relied on to develop the facts of its investigation, and the steps that the Government anticipated taking and actually took in furtherance of the investigation.”¹⁰ It also noted that the documents would “make clear who produced them and show what criminal actions were being investigated.” 

In Sorin v. U.S. Department of Justice, the Second Circuit affirmed that communications between a law firm and federal prosecutors in connection with specific grand jury subpoenas, as well as letters that accompanied productions in response to subpoenas, would “tend to reveal” what transpired before the grand jury.¹¹

By contrast, in Radar Online LLC v. Federal Bureau of Investigation, the Southern District of New York concluded that the government failed to demonstrate a nexus between disclosure and revelation of a protected aspect of the grand jury's investigation.¹²The FBI had argued that certain records sought under FOIA revealed names of recipients of federal grand jury subpoenas, information that identified specific records that were subpoenaed by a federal grand jury, and copies of records provided pursuant to a federal grand jury subpoena. The court was not persuaded that the FOIA exemption was applicable. As an initial matter, the court noted that the plaintiffs did not request documents related to a grand jury; rather, the FBI revealed the existence of grand jury proceedings by withholding the documents. The court went on to explain that records provided to a federal grand jury are not exempt from disclosure under FOIA “merely because the documents were subpoenaed.”¹³ It held that the FBI had not met its burden because it had not “explained or provided details regarding its conclusory assertion” that disclosure of the material in question would violate the secrecy of federal grand jury proceedings.¹⁴ Further, the court concluded that because the FBI had not “separately categorized records withheld pursuant to Rule 6(e),” the court could not determine “which categories of records, if any,” were properly withheld under Exemption 3.¹⁵Ultimately, however, the court found that the documents were appropriately withheld pursuant to different FOIA exemptions.¹⁶

Variation Among the Circuits 

A recent decision in the Ninth Circuit creates a split with the Second Circuit in how courts apply Exemption 3 to Rule 6(e) materials. 

In Kalbers v. U.S. Department of Justice and Volkswagen AG, the Ninth Circuit held that documents that the government obtained exclusively through a grand jury subpoena are protected by Rule 6(e) and therefore exempt from FOIA under Exemption 3.¹⁷ In Kalbers, a university professor sought millions of documents that Volkswagen provided to the DOJ pursuant to a federal investigation into the company's emissions testing. Volkswagen had hired a law firm to conduct an internal investigation into its emissions testing and to present its findings to the DOJ. The law firm collected documents, interviewed witnesses and prepared a report. Documents collected by the law firm were subsequently produced in response to a grand jury subpoena and specifically designated “FOIA Confidential – Produced Pursuant to Rule 6(e).”

The lower court adopted the recommendation of the Special Master and ordered the production of the documents. To determine whether Rule 6(e) applied, the court evaluated whether the materials sought “are directly associated with the grand jury process and/or reveal the inner workings of the grand jury.”¹⁸ It reasoned that while the relevant documents were collected and produced in response to the grand jury subpoena, “they were created for purposes independent of grand jury investigations.”¹⁹ Additionally, the court noted that it was “unclear which of the millions of records were actually presented” to the grand jury, rendering it “virtually impossible” to glean information about the grand jury's deliberation.²⁰The court therefore concluded that release of the documents would not compromise the secrecy of the grand jury process. 

The Ninth Circuit reversed. It stated that disclosure of material sought by a grand jury subpoena is appropriate only if the requester can demonstrate that (1) the documents are in governmental possession from a source not connected to the grand jury; (2) the documents were sought for a reason independent of the grand jury investigation; and (3) disclosure would not otherwise compromise the integrity of the grand jury process.²¹ Finding that the lower court ignored the first factor, the panel held that Rule 6(e) barred the disclosure of the documents because they were only in the government's possession due to the grand jury subpoena.²²

The panel explained that disclosing aggregated material that is responsive to a subpoena would allow the requester to reverse engineer the grand jury's investigation. The requester could “observe patterns to figure out the time periods, individuals, and subject matters the grand jury was investigating.”²³ The panel clarified that this risk is not present if the documents are available through an independent source or if the government obtained the documents from a source independent of the grand jury. In that case, “the requester has no way of knowing which documents are also a part of the document set curated for the grand jury.”²⁴

Furthermore, the panel rejected the lower court's holding that Rule 6(e) only applies to materials created by or for the grand jury. While Volkswagen's internal emails and technical documentation pre-existed the grand jury investigation, releasing those documents in the subpoena file would reveal that the grand jury investigated them, and therefore compromise the integrity of the grand jury's deliberative process.²⁵

Takeaways

While case law in the Second Circuit is less protective of documents produced in response to a grand jury subpoena, practitioners can leverage the reasoning in Kalbers  to assist targets of grand jury investigations. Practitioners can use the language in Kalbers  to argue that there is a nexus between disclosure and revelation of “a matter occurring before the grand jury.” 

To preserve and strengthen this argument, practitioners should ensure that all documents produced in response to a grand jury subpoena are consistently labeled with a disclaimer similar to “FOIA Confidential: These materials are produced in response to a grand jury subpoena and are protected by Federal Rule of Criminal Procedure 6(e).” This label clearly indicates that the documents are being produced in response to a grand jury subpoena and makes clear that they implicate the grand jury investigation. Additionally, the cover letter that accompanies a production responding to a grand jury subpoena should include similar language to make plain that the documents are being produced in connection with the grand jury's investigation. The Ninth Circuit heavily relied on the fact that the producing party had clearly labeled the documents to find that disclosure would reveal a matter before the grand jury. In fact, it remanded the question of whether four documents that were not labeled were subject to disclosure.

Practitioners should also maintain careful records on the location and collection of documents produced in response to a subpoena. The application of Kalbers  is strongest if a party can demonstrate the documents are only in the government's possession because of the grand jury's subpoena.

Footnotes

1. 5 U.S.C. § 552(b)(7).

2.Id. § 552(b)(4).

3.Id. § 552(b)(3).

4.A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 143–44 (2d Cir. 1994) (finding 15 U.S.C. § 57b-2 qualifies as an Exemption 3 statute).

5.Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 168 (D.C. Cir. 2012) (finding 10 U.S.C. § 130(a) qualifies as an Exemption 3 statute). 

6.Corley v. Dep't of Just., 998 F.3d 981, 985 (D.C. Cir. 2021) (finding 18 U.S.C. § 3509 qualifies as an Exemption 3 statute). 

7. Fed. R. Crim. Pro. 6(e)(2)(b).

8.Grynberg v. United States Dep't of Just., 758 F. App'x 162, 164 (2d Cir. 2019) (quoting Am. Civ. Liberties Union v. Dep't of Just., 681 F.3d 61, 69 (2d Cir. 2012)).

9.Id.  at 164 (internal citations omitted). 

10.Id.

11.Sorin v. United States Dep't of Just., 758 F. App'x 28, 31 (2d Cir. 2018).

12.Radar Online LLC v. Fed. Bureau of Investigation, 692 F. Supp. 3d 318, 348 (S.D.N.Y. 2023).

13.Id. (quotation marks omitted). 

14.Id. at 347.

15.Id. at 348. 

16.Id.  at 362 (finding documents were correctly withheld pursuant to Exemption 3 as it relates to the Child Victims Act, and pursuant to Exemptions 5, 6, 7(C), 7(D) and 7(E)). 

17.Kalbers v. U.S. Dep't of Just., 166 F.4th 783 (9th Cir. 2026).

18.Kalbers v. U.S. Dep't of Just., 2023 WL 12246816, at *7 (C.D. Cal. Nov. 28, 2023), report and recommendation adopted, 2024 WL 6991332 (C.D. Cal. Feb. 9, 2024), rev'd in part, vacated in part sub nom. Kalbers v. U.S. Dep't of Just., 166 F.4th 783 (9th Cir. 2026).

19.Id.  at *8–*9 (internal quotations omitted). 

20.Id.  at *9.

21.Kalbers, 166 F.4th at 795.

22.Id. 

23.Id. at 792.

24.Id. at 794–95.

25.Id. at 797. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.