JOHN DOE AGENCY AND JOHN DOE GOVERNMENT AGENCY, PETITIONERS V. JOHN DOE CORPORATION No. 88-1083 In The Supreme Court Of The United States October Term, 1988 On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Reply Brief For The Petitioners Despite respondent's attempt (e.g., Br. 3) to convert this case into a factual dispute, the essential facts in this case are undisputed. It was accepted by both the district court and the court of appeals that the records at issue in this case were originally obtained during the course of a routine audit, but were later turned over to John Doe Government Agency /1/ for use in a grand jury investigation of a possible violation of the criminal law. The district court upheld the government's claim of Exemption 7 /2/ protection in its entirety because it found that "there is a substantial risk that disclosure of any of this material, the documents, the Vaughn index, and the answers to (John Doe Corporation's) interrogatories, would jeopardize the grand jury proceedings." Pet. App. 14a. The court of appeals did not dispute that finding of the risk of disclosure, but concluded that it is legally irrelevant. The court of appeals reversed and remanded the case on the ground that Exemption 7's threshold requirement that records or information be "compiled for law enforcement purposes" could not be satisfied because the documents at issue here had been "generated * * * in the course of * * * routine monitoring." Pet. App. 7a. The facts that the records later gained "investigative significance," id. at 8a, and were turned over to John Doe Government Agency for use in a criminal investigation, and that their release could reasonably be expected to interfere with law enforcement proceedings, were of no moment to the court of appeals because the court believed that the threshold requirement of Exemption 7 that records or information be "compiled for law enforcement purposes" was irrevocably defeated when the government initially obtained the documents for non-law-enforcement purposes. As we showed in our opening brief, the court of appeals was legally incorrect in that view of the threshold requirement of Exemption 7. The plain words of the exemption, its legislative history, and its purpose all compel the conclusion that documents that the government originally obtained for non-law-enforcement purposes, but that later become part of a law enforcement investigation, are "compiled for law enforcement purposes" within the meaning of Exemption 7. 1. Respondent does not squarely defend the court of appeals' ruling that the documents could not be "compiled for law enforcement purposes" because they were originally obtained for non-law-enforcement purposes. /3/ Instead, respondent relies primarily on its contention (see, e.g., Br. 9, 14-15) that the documents at issue were never "recompiled" for law enforcement purposes because they were merely "transferred" to John Doe Government Agency. Apparently, respondent's view is that this transfer of the documents to John Doe Government Agency for use in a criminal investigation is not sufficient to constitute compilation of the documents. Respondent appears to suggest (Br. 21-22) that to "compile" records or information John Doe Government Agency, when it received the documents at issue from John Doe Agency, would have had to engage in some act that changed the substance of the documents, such as editing or composing them. See also Pub. Cit. Br. 8. /4/ That view is wholly without merit. Obviously, many documents used in all sorts of law enforcement investigations are not composed or edited by the government. In the ordinary law enforcement investigation, documents will be compiled by gathering them together and using them, with or without change, as is appropriate in the investigation. To refer to such gathering together as "compiling" the documents is not in the least unnatural. For example, the third definition of "compile" in The Random House Dictionary of the English Language 417 (2d ed. unabridged 1987) is "to gather together: to compile data." That sense of the word "compile," and not a different sense appropriate to literary contexts, is the one that Congress is far and away most likely to have had in mind in drafting Exemption 7. /5/ Thus, the lower courts have equated "compiled for law enforcement purposes" with "gathered" for law enforcement purposes, Arenberg v. DEA, 849 F.2d 579, 581 (11th Cir. 1988), and "amassed in connection with an enforcement proceeding," Center for National Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1973). /6/ No court of appeals has ever adopted respondent's more restrictive reading of the word "compiled." Respondent's argument also would have perverse consequences. Consider, for example, the FBI's files of criminal history information, which were at issue before this Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989). Obviously, most of the records in those files qualify as having been "compiled for law enforcement purposes" under any test. Respondent's argument, however, would apparently require the Court to distinguish those criminal history records that came from multiple sources, and were edited into another form by the FBI, from original records that the FBI had received from a State and maintained intact. An individual whose arrest record came entirely from one State might be denied the protections of Exemption 7 because, under respondent's theory, his records might not have been "compiled" by the FBI, whereas the "rap sheet" of an individual whose multistate arrest records were combined by the FBI would receive the protection of Exemption 7(C), 5 U.S.C. 552(b)(7)(C) (Supp. V 1987), as construed in Reporters Committee. Even the latter individual might have his original, State-generated records disclosed if the FBI retained them, since respondent would maintain that only the rap sheets themselves and not the underlying materials were "compiled" by the FBI. /7/ Respondent's restrictive reading of the word "compiled" thus threatens to make an end run around Reporters Committee and to require indiscriminate release of law enforcement records on the basis of distinctions that would render the statutory policy incoherent. Furthermore, contrary to the impression given by respondent (e.g., Br. 22), John Doe Government Agency did more than just receive the documents at issue from John Doe Agency. The documents taken by John Doe Government Agency became part of a criminal investigation. "The documents at issue in (this case) had been removed from the custody of (John Doe Agency) by agents of (John Doe Government Agency) for the purpose of presenting these documents to the grand jury," and "(a)ll of the requested documents have been presented to the grand jury." J.A. 60-61. There was plainly more in this case than the "mere change in custody of an intact collection of documents." Resp. Br. 22. The documents were "compiled for law enforcement purposes." 2. Respondent also argues (Br. 15-17) that the documents at issue do not fall within Exemption 7 because the documents were not transferred from John Doe Agency to John Doe Government Agency until after respondent made its FOIA request for the documents. That argument, of course, has nothing to do with the rationale of the court below (and therefore may, but need not, be reached by this Court). The court of appeals did not even mention the timing of the document transfer, much less treat it as dispositive, in ruling that the documents did not satisfy the threshold requirement of Exemption 7. The court of appeals' decision is not limited to situations where the documents become part of a law enforcement investigation after the FOIA request is made. Rather, under the court of appeals' decision, disclosure is mandatory for all documents that were not originally compiled for law enforcement purposes. As we showed in our opening brief, that ruling is clearly wrong. /8/ Furthermore, if this Court reaches respondent's argument, the Court should reject it. The fact that the documents were transferred to John Doe Government Agency (and thus were compiled for law enforcement purposes) while respondent's FOIA request was pending, rather than earlier, does not justify the conclusion that the documents are outside the protection of Exemption 7. Congress recognized in enacting Exemption 7 that law enforcement agencies have legitimate needs to protect the confidentiality of certain documents in order to prevent interference with investigations and to avoid harming the government's case in court. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). The protection of those interests depends on an assessment of the situation at the time the requested documents would be required to be released. /9/ Thus, it was perfectly proper for John Doe Agency, after receiving respondent's FOIA request, to check with law enforcement personnel to determine whether the documents were relevant to an ongoing criminal investigation and whether their release could reasonably be expected to interfere with that investigation. In this area of FOIA law, as in others, it is entirely appropriate for the government, after a FOIA request as well as before, to take steps to ensure that sensitive documents that Congress did not intend to subject to the disclosure requirements of FOIA are not disclosed. /10/ The interests that Congress intended to protect through Exemption 7 should not be harmed solely because the FOIA requester asks the noninvestigative agency for particular records before the investigative agency does the same. The key question in determining whether Exemption 7 applies is whether release of the requested documents will cause one of the harms against which the exemption provides protection. FBI v. Abramson, 456 U.S. 615, 627-628 (1982). That determination logically relates to the time when the documents would be required to be released. If, at that time, the documents are "compiled for law enforcement purposes" and their disclosure satisfies one of the criteria set forth in subsections (A)-(F), it does not matter whether the compilation occurred at the time that the government originally obtained the documents or at a later time. The correctness of the foregoing analysis follows not only from fealty to the purposes of Congress in fashioning Exemption 7, but also from standard principles of equity. An action under FOIA is an action for an injunction: "The FOIA * * * explicitly confers jurisdiction to grant injunctive relief of a described type, namely, 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.'" Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18 (1974) (footnote omitted and emphasis added) (quoting what is now 5 U.S.C. 552(a)(4)(B)). Unlike a proceeding for judicial review of administrative action, in which the court's inquiry is whether the agency acted correctly on the basis of the circumstances existing at the time the agency acted, an action for an injunction depends on the circumstances existing at the time the court rules. It is hornbook law that "it is the condition of things at the time of the hearing of the suit, rather than that existing at its commencement, which is material, and which furnishes the basis for relief." 42 Am. Jur. 2d Injunctions Section 6, at 733 (1969). /11/ Thus, the proper inquiry for a court in an Exemption 7 case is whether, at the time of the court's decision, the documents at issue have been "compiled for law enforcement purposes." Whether the documents had been so compiled at the time the FOIA request was made, or at the time suit was brought, is irrelevant. /12/ Thus, there is no inconsistency between our position and the supposed use of the past tense of the verb "to compile" in the statute (see Resp. Br. 22-23). Our position applies only to documents that were "compiled" before the relevant time, but we differ with respondent as to what that relevant time is. /13/ Naturally, we recognize the theoretical potential for abuse in a rule of law that allows the government to compile documents in order to bring them within a FOIA exemption that was not applicable at the time of the FOIA request. But courts have ample power to protect against any such abuses by enforcing the explicit statutory requirements that the compilation be "for law enforcement purposes" and that the criteria of one or more of subsections (A)-(F) be met; there is no need for a rule of law that requires disclosure of documents that were compiled for law enforcement purposes (after the FOIA request) and whose disclosure would in fact cause one of the specified harms that Congress sought to prevent. And there is no reason to fear abuse on the facts of this case. /14/ There is not the slightest support in the record for the proposition that, rather than engaging in legitimate law enforcement activity, John Doe Government Agency took the documents at issue from John Doe Agency for the purpose of making an otherwise inapplicable FOIA exemption apply. Rather, as is obvious from the subpoenas issued in February 1986 and thereafter, which are what prompted respondent's September 1986 FOIA request in the first place, the government long before September 1986 was engaged in a law enforcement investigation that focused on, among other things, respondent's 1978 correspondence with John Doe Agency. /15/ John Doe Government Agency's request to John Doe Agency for the documents at issue here, and the subsequent transfer of documents in accordance with that request, were a natural and timely outgrowth of that investigation. Respondent had no right to obtain disclosures that "could reasonably be expected to interfere with enforcement proceedings," 5 U.S.C. 552(b)(7)(A) (Supp. V 1987), just because its request for the records preceded rather than followed John Doe Government Agency's request to the same agency for the same documents as part of a legitimate law enforcement investigation. 3. Equally unpersuasive is respondent's argument (Br. 18) that our construction of Exemption 7 negates the threshold requirement of the exemption. Far from negating the "compiled for law enforcement purposes" threshold of Exemption 7, we simply ask that this Court construe that requirement to apply to records or information that the government has at some point gathered for law enforcement purposes, regardless of whether that gathering occurred when the government originally obtained the records or information. Our disagreement with the court of appeals is not over whether the threshold requirement should be applied, but over whether the failure of the government to compile records or information for law enforcement purposes at the time the government originally obtained those records or that information irrevocably prevents the government from invoking Exemption 7 after the information or records are later recompiled for law enforcement purposes. Of course, most information or records in the possession of an agency whose primary duty is law enforcement will have been compiled by the agency for law enforcement purposes. Compare Curran v. Department of Justice, 813 F.2d 473, 475 (1st Cir. 1987), with Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). But it is hardly the case that every document in the possession of such an agency will serve law enforcement purposes. Obvious examples of non-law-enforcement records kept by law enforcement agencies include personnel files, files used in negotiating with labor unions, and correspondence with citizens that is unrelated to any particular law enforcement investigation. This case is not about whether such records will be inappropriately deemed law enforcement records; it is about whether classic law enforcement records -- materials that have now been presented to a grand jury as part of an ongoing criminal investigation -- will be inappropriately disclosed because of an artificial reading of the phrase "compiled for law enforcement purposes" that is contrary to the plain language of the statute and does not serve any discernible congressional purpose. Respondent complains that the government's view of Exemption 7 will necessarily delay disclosure of documents and that under the government's interpretation of Exemption 7 it will be deprived of information relevant to its defense of possible criminal charges against it. Br. 18, 26-27. Those complaints are not justified. This case worked its way swiftly through the lower courts and would have been terminated with extraordinary speed if the Second Circuit had adopted the position that we urged below and have urged here. There is absolutely nothing about our position that bears any inherent relation to the speed with which a FOIA case will be resolved in the courts. Respondent's protestations of innocence in the underlying criminal investigation are also a pointless distraction from the real issues before this Court. If respondent believes that the targets of grand jury investigations should have immediate discovery rights so as to prove their innocence, then respondent should urge Congress to change the rules of criminal discovery. But as things now stand, respondent has no right to discovery under the criminal rules, and the FOIA exemption on which we rely was intended to prevent FOIA from being used to allow litigants earlier or greater access to agency investigatory files than they would otherwise have. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224-225 (1978). We therefore make no apology for regarding as "unworthy" "(t)he very idea that the Corporation should invoke the FOIA for this purpose." Resp. Br. 26. Congress specifically regarded that use of FOIA to be unworthy and Exemption 7 precisely to protect against it. It is thus the very integrity of Congress's scheme that is at stake in this case. /16/ Like respondent, amici suggest (Pub. Cit. Br. 10-11) that the government's position in this case has far-reaching implications for the public availability of valuable information. The issue in this case, however, has nothing to do with the noble purposes for which FOIA was enacted. See Pet. Br. 37. All that is at issue here is whether documents that are transferred to a law enforcement agency in the course of a bona fide law enforcement investigation will be afforded the protections that Congress intended for such law enforcement records, or whether instead respondent will be permitted to use FOIA as the discovery device that Congress never intended. Respondent's reliance (Br. 19-20) on FBI v. Abramson, 456 U.S. 615 (1982), is also strained and misguided. In Abramson, this Court held that a document once compiled for law enforcement purposes does not lose its Exemption 7 character when it is recompiled for other purposes. That conclusion followed both from the language of the statute ("compiled" as opposed to "compiled solely" or some other variant) and from the unmistakable, overriding objective of Congress to protect records that meet the criteria of subsections (A)-(F) -- an objective that is no less at stake in this case. The conclusion did not follow from any judicial insertion of the word "originally" into the phrase "compiled for law enforcement purposes" as respondent suggests. There is no basis whatever for respondent's suggestion (Br. 20) that Abramson precludes the application of Exemption 7 to documents that are recompiled for law enforcement purposes after they were originally obtained for a non-law-enforcement purpose. This Court's focus in Abramson on the substance of Exemption 7 and its refusal to engage in a "formalistic" reading of that exemption that would defeat the purpose of the exemption are sharply at odds with respondent's position, not an aid to it. See Binion v. United States Department of Justice, 695 F.2d 1189, 1194 (9th Cir. 1983). 4. Finally, amici argue (Pub. Cit. Br. 10) that the implications of our position are that "the government could claim Exemption 7 protection simply by identifying a record as potentially relevant to a law enforcement investigation, even where the record has been compiled by the government as a matter of course, and even where it has previously been available to the public." But there is nothing wrong with information's becoming subject to Exemption 7, even though it previously would have been disclosable under FOIA. Exemption 7 was intended to protect against actual law enforcement harms. Those harms may not have been threatened at the time that the government originally compiled the information. But, if a law enforcement investigation later commences or the relevance of the information to a law enforcement investigation is later determined, and disclosure of the information would cause one of the harms listed in subsections (A)-(F) of Exemption 7, the information should be protected from disclosure by Exemption 7. This Court's decisions teach that in construing Exemption 7 the courts should look carefully at the practical effect disclosure would have on the interests that the exemption seeks to protect. See United States Department of Justice v. Reporters Committee for Freedom of the Press, supra; FBI v. Abramson, supra; NLRB v. Robbins Tire, supra. The practical effect of disclosure is unaffected by whether the requested information was "compiled for law enforcement purposes" when the government originally obtained the information or was not so compiled until later. In ruling out the possibility that the requisite compilation can occur after the government initially obtains the records or information for non-law-enforcement purposes, the court of appeals committed clear error. /17/ For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. KENNETH W. STARR Solicitor General JUNE 1989 /1/ We continue to refer to the government parties by their pseudonyms solely because of the sealing order entered by the court of appeals. See Pet. Br. II. We take no position on the appropriateness of that order, which was requested by respondent and not the government. Cf. Pub. Cit. Br. 12-15. /2/ Exemption 7 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(7) (Supp. V 1987). /3/ Respondent's assertion (Br. 9) that "(t)his case * * * does not involve the issue * * * whether records originally compiled for a non-law-enforcement purpose may subsequently be recompiled for law enforcement purposes" -- an argument that respondent has advanced in its unsuccessful efforts to persuade this Court to deny a stay and to deny certiorari -- is simply untenable. The court of appeals explicitly ruled that "a governmental entity cannot withhold materials requested under the FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance." Pet. App. 7a-8a. Although we disagree with much of the amicus brief filed by Public Citizen and the Freedom of Information Clearinghouse, which focuses almost entirely on issues that are not before the Court, that brief does have the virtue of admitting (Br. 6) that "the court of appeals held that the litmus test under Exemption 7 is whether the records or information were compiled for a law enforcement purpose when they were created." See also Pub. Cit. Br. 8 n.6. It is that ruling of the court of appeals that the threshold "compiled for law enforcement purposes" requirement of Exemption 7 is determined at the time the records or information were created or originally obtained by the government, and that such compilation for law enforcement purposes cannot take place later, that this Court granted certiorari to review and should now reverse. /4/ Respondent's brief may also be read to suggest that, if John Doe Government Agency intermingled the John Doe Agency documents with one or more other documents, it "compiled" them, but that otherwise John Doe Government Agency did not "compile" the documents. Such an argument would trivialize the Exemption 7 threshold test. It is inconceivable that Congress intended to forbid interference with enforcement proceedings whenever the law enforcement agency itself puts two or more documents together, in the manner in which an editor "compiles" a volume of materials, but to permit such interference whenever the law enforcement agency obtains a group of documents intact from another source. /5/ The word "compiled" is broad enough to cover the literary analogies that we used in our opening brief (at 19), a fact that usefully demonstrates that the court of appeals completely misused the word as a synonym for originally obtained or generated, but it does not follow that only documents that are gathered together and edited into book form are "compiled." Congress used the word "compiled" in its natural sense as a synonym for "gathered," without adding senseless additional requirements in order for records or information to be deemed "compiled." /6/ Although the 1974 amendments were intended to disapprove of a portion of that opinion, see Pet. Br. 25-29, the 1974 amendments did not alter the threshold phrase "compiled for law enforcement purposes." They were not intended to modify those cases, such as Center for National Policy, that "treated the phrase as a broad, descriptive classification, the use of which was largely determined by the agency in question." Williams v. FBI, 730 F.2d 882, 884 (2d Cir. 1984). /7/ The suggestion that FOIA requesters might try to make an end run around Exemption 7 by requesting the uncompiled versions of law enforcement records is not fanciful. That is precisely the suggestion of amici in the present case, who assert that John Doe Government Agency should have simply referred respondent's FOIA request to John Doe Agency. Pub. Cit. Br. 14. A comparable suggestion was advanced by the court of appeals in the Reporters Committee decision that this Court reversed. See Reporters Committee for Freedom of the Press v. United States Department of Justice, 816 F.2d 730, 743 (D.C. Cir. 1987) (suggesting that Department of Justice "refer() appellants to the law enforcement agency that provided the information to the Department"), rev'd, 109 S. Ct. 1468 (1989). See also Gould Inc. v. GSA, 688 F. Supp. 689, 698 n.23 (D.D.C. 1988) ("In addition, of course, plaintiff may not circumvent the effect of Exemption 7 by seeking information in the investigatory file from other unprotected government sources. Merely because other copies exist in government files does not strip these documents -- and the information they contain -- of their exemption from disclosure."). /8/ It is also unprecedented among the courts of appeals. The claim of amici (Pub. Cit. Br. 6-7) that "a virtually unbroken string of precedents" supports that ruling is unfounded. In none of the cases that amici cite, other than district court cases, did a court reject a government claim of Exemption 7 on the ground that documents compiled for non-law-enforcement purposes could not later become records compiled for law enforcement purposes. And the better reasoned district court cases support the government's view, not that of the Second Circuit. See Gould Inc. v. GSA, 688 F. Supp. 689 (D.D.C. 1988); Crowell & Moring v. Department of Defense, 703 F. Supp. 1004 (D.D.C. 1989), appeal pending, No. 89-5066 (D.C. Cir.); Raytheon Co. v. Department of the Navy, Civ. No. 88-94 (D.D.C. Jan. 5, 1989); Fedders Corp. v. FTC, 494 F. Supp. 325 (S.D.N.Y.), aff'd mem., 646 F.2d 560 (2d Cir. 1980). /9/ For example, if documents come within the terms of Exemption 7(A), 5 U.S.C. 552(b)(7)(A) (Supp. V 1987), at the time of the FOIA request, but during the pendency of the request (or subsequent litigation) the law enforcement investigation terminates and it becomes clear that the release of the documents no longer would interfere with enforcement proceedings, there is no doubt that, because of those changed circumstances, Exemption 7(A) would cease to apply. By the same token, when the circumstances of an investigation develop during the pendency of a request (or subsequent litigation), the protections of Exemption 7(A) should commence to apply. /10/ In an analogous situation, Exec. Order No. 12,356 Section 1.6(d), 3 C.F.R. 166, 170 (1983), specifically provides that information may be "classified or reclassified" after an agency has received a request for it under FOIA, and the courts have recognized that such classification brings documents within the protection of Exemption 1, 5 U.S.C. 552(b)(1) (1982 & Supp. V 1987). See generally Goldberg v. Department of State, 818 F.2d 71, 77 (D.C. Cir. 1987) (government may classify documents, and thus bring them within Exemption 1, after FOIA request has been received), cert. denied, 108 S. Ct. 1075 (1988); Miller v. Department of State, 779 F.2d 1378, 1388 (8th Cir. 1986) (same); Baez v. Department of Justice, 647 F.2d 1328, 1332-1333 (D.C. Cir. 1980) (same). Respondent has suggested nothing in the language, legislative history, or purpose of Exemption 7 that would preclude an agency from similarly compiling or recompiling information or records for legitimate law enforcement purposes after it has received a FOIA request. /11/ The same source adds: "The court is not only authorized, but it is also its duty, to determine not merely whether the plaintiff was entitled to an injunction at the time he began his suit, but whether the facts as they appear at the time of the hearing warrant such relief * * *." /12/ In this case, of course, the documents had been compiled before suit was filed. Respondent can prevail only if this Court adopts respondent's argument in its extreme form, i.e., that the relevant facts are frozen at the time of the FOIA request and no later. /13/ In any event, respondent is wrong as a matter of grammar in suggesting that the language of Exemption 7 "uses * * * the past tense of the verb 'to compile.'" Br. 22. In the statutory phrase "records or information compiled for law enforcement purposes" (5 U.S.C. 552(b)(7) (Supp. V 1987)), the word "compiled," which is the past or passive participle of "to compile," is used not as a verb form but as an adjective. See generally, e.g., B. Evans & C. Evans, A Dictionary of Contemporary American Usage 353-354 (1957) (discussing use of participles as adjectives). The word "compiled" in the context of Exemption 7 no more "(c)learly" and "obviously" (Resp. Br. 23) connotes the past than does the word "inclined" in the phrase "those of us who are inclined to give wide latitude to the views of the voters' representatives on nonconstitutional matters" (Rodriquez de Quijas v. Shearson/American Express, Inc., 109 S. Ct. 1917, 1923 (1989) (Stevens J., dissenting)). /14/ The district court specifically found (and the court of appeals did not disagree) that disclosure could reasonably be expected to interfere with a law enforcement investigation. Such a finding could not be made if the government had simply commingled non-law-enforcement records with legitimate law enforcement files by the expedient of transferring the non-law-enforcement records to John Doe Government Agency. The established fact that all of the documents at issue have been presented to the grand jury (J.A. 61) also tends to demonstrate the bona fides of the government's law enforcement purpose in compiling the records at issue. Respondent has cited no evidence to support the proposition that there was improper commingling in this case. /15/ An investigation into possible fraudulent practices by John Doe Corporation was opened on July 18, 1985, and the grand jury issued its first subpoena to the Corporation on February 21, 1986. J.A. 91-92. /16/ We agree entirely, of course, that "(t)here is nothing the slightest bit untoward about any person under investigation seeking access to the full extent permitted by law to any information which may bear on his defense." Resp. Br. 26. But if respondent is to prevail in this case it must be because the access respondent seeks is indeed "permitted by law," not because respondent wants to remake the law to make it possible for potential criminal defendants to obtain earlier discovery. See id. at 26-28. Respondent's argument in favor of broader criminal discovery flies in the face of the intention Congress has thus far expressed, which is all that is properly at issue before the Court. /17/ Amici complain (Pub. Cit. Br. 15-16) of the district court's consideration of the Vaughn index in camera. Amici assert that the government offered to provide public Vaughn affidavits. This is incorrect. As we explained in our reply in support of our stay application to this Court and in our reply to respondent's opposition to the petition for a writ of certiorari, the government opposed the preparation of any Vaughn index on the ground that giving such a document to respondent would itself reveal information that respondent is seeking in this lawsuit, but that should instead remain secret. Because it took the broad position in resisting discovery, the government did not make the fallback suggestion that the Vaughn index be prepared, but be submitted in camera. The district court, however, ordered that procedure because of the government's legitimate concerns. The district court has more recently specifically found that disclosure of the Vaughn index "would jeopardize the grand jury proceeding" (Pet. App. 14a). Thus, there is no merit in amici's suggestion that the use of the in camera procedure in this case was unnecessary or improper.