Protecting Grand Jury Materials From FOIA: Lessons From the Ninth Circuit’s Kalbers Decision

The US Court of Appeals for the Ninth Circuit’s recent decision in Kalbers v. DOJ confirms that documents produced solely in response to a grand jury subpoena are protected from disclosure under the Freedom of Information Act (FOIA). The ruling underscores how companies and counsel can preserve the confidentiality of documents by adopting consistent, deliberate document-production practices from the outset of an investigation.

Background

In Kalbers, a professor sought nearly six million documents Volkswagen produced to the US Department of Justice (DOJ) during the so-called Dieselgate criminal investigation. Volkswagen had provided the materials in response to a federal grand jury subpoena, and almost all were stamped: “FOIA Confidential – Produced Pursuant to Rule 6(e).” Rule 6(e) of the Federal Rules of Criminal Procedure bars disclosure of “matter[s] occurring before the grand jury,” and in turn, FOIA exempts disclosure of any information protected by federal law, including Rule 6(e)’s grand jury secrecy mandate. The district court nonetheless ordered disclosure, reasoning that DOJ had not shown which documents were actually presented to the grand jury or that releasing them would necessarily reveal grand jury matters.

The Ninth Circuit reversed, holding that Rule 6(e) protects documents from FOIA disclosure when the government obtained them solely through a grand jury subpoena. The court reasoned that disclosing such documents would reveal the scope and focus of the grand jury’s investigation. It further explained that grand jury protection can be overcome only if the requester can show that the government obtained the documents from a source independent of the grand jury subpoena, the requester seeks the documents for a purpose unrelated to the grand jury investigation, and disclosure would not compromise the grand jury process. If the requestor fails to satisfy any of these factors, Rule 6(e) bars disclosure.

The court remanded for further proceedings on four documents that lacked the Rule 6(e) label.

Key takeaways

1. Label documents clearly and consistently

Almost all of the six million documents Volkswagen produced were stamped “FOIA Confidential – Produced Pursuant to Rule 6(e),” and the Ninth Circuit relied heavily on that labeling to conclude they were grand jury materials. The labels created a clear record tying the documents to the subpoena, and the court emphasized that DOJ could not redact them because doing so would itself disclose the connection to the grand jury investigation. Without this labeling, the government would have faced a more difficult task of demonstrating the materials’ protected status. The court remanded only as to the four unlabeled documents.

2. The ‘independent source’ limitation

The central inquiry is whether the government possesses the documents only because of the grand jury subpoena. Here, DOJ had no independent source for the Volkswagen materials, so disclosure was barred. The court contrasted this with cases like United States v. Dynavac, where the government possessed the same materials through a separate administrative process; in such circumstances, disclosing them does not necessarily reveal anything about the grand jury’s work. If an independent source exists, Rule 6(e) protection may not apply.

3. Internal investigations don’t create an escape hatch

The requester argued that Volkswagen’s internal investigation materials should fall outside Rule 6(e) because they were created for purposes independent of the grand jury proceeding. The Ninth Circuit rejected that argument. The court noted that Volkswagen had commissioned the internal investigation because of DOJ’s criminal investigation, and the materials were funneled to the government solely through the grand jury subpoena process. When internal investigation documents flow to DOJ through a subpoena, that collection is treated as grand jury material regardless of the documents’ origins.

Bottom line

The Kalbers decision makes clear that Rule 6(e) provides robust protection when documents are in the government’s possession only through a grand jury subpoena and not from an independent source. Proper labeling creates a clear record that strengthens this protection and makes it easier for the government to demonstrate protected status. Ensuring that protection requires thoughtful document handling from the onset of dealing with the government in a criminal matter.