Ninth Circuit Rejects FOIA Request, Upholds Grand Jury Secrecy in White Collar Case

The U.S. Court of Appeals for the Ninth Circuit recently ruled that Exemption 3 of the Freedom of Information Act (“FOIA”) bars disclosure of documents that the federal government possesses because of a grand jury subpoena.  While the case involved a FOIA request to the U.S. Department of Justice (“DOJ”), the decision is significant for any organization that produces documents in response to a federal grand jury subpoena.  It confirms that a range of requesters, including state regulators and plaintiffs’ attorneys, cannot necessarily obtain such documents from DOJ via the FOIA process.

The subject case, Kalbers v. United States Department of Justice, arose from a law professor’s effort to obtain information about the settlement of a criminal case DOJ brought against German automobile manufacturer Volkswagen AG (“VW”) as a result of the “Dieselgate” scandal.  The parties resolved the case through a plea agreement, an agreement the professor believed to be a “sweetheart deal.”  The professor attempted to use the FOIA process to obtain every document produced by VW during DOJ’s investigation.  When DOJ denied the professor’s FOIA request, he sued. 

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