Kalbers v. DOJ, 166 F.4th 783 (9th Cir. 2026) (Nelson, J.)

Kalbers v. DOJ, 166 F.4th 783 (9th Cir. 2026) (Nelson, J.)

Re: Request for documents automobile manufacturer had turned over to federal prosecutors as result of grand jury subpoena in connection with criminal investigation of manufacturer

Disposition:  Reversing district court’s order requiring disclosure of documents; remanding for district court to evaluate whether government must disclose certain documents

• Exemption 3: “[The Court of Appeals for the Ninth Circuit] address[es] whether FOIA requires the Government to disclose a file it only possesses because it was created ‘in response to’ a grand jury investigation.”  At issue are “nearly six million documents to federal prosecutors in response to the grand jury subpoena.”  The court finds that “secrecy over the grand jury investigation protects large swaths of materials.”  “Rule 6(e) unquestionably protects 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.’”  “The subpoena itself – or the list of documents or witnesses requested by the grand jury – fits comfortably on this list.”  “If Rule 6(e) protects the grand jury’s request for documents, the Rule likewise protects the file prepared in response to that request.”  “The file is susceptible to reverse-engineering.” “Subpoenaed documents ‘when considered in the aggregate and in their relationship to one another, make possible inferences about the nature and direction of the grand jury inquiry.’” “In the context of a grand jury subpoena file, the curating attorney’s thought process is more apparent:  Is the document at issue responsive to the subpoena?” “One need only to flip through the compiled file and observe patterns to figure out the time periods, individuals, and subject matters the grand jury was investigating.”  “To be sure, few cases have held that the subpoena file is itself protected by Rule 6(e).”  “But parties rarely present the issue to the courts; and the few times the parties contested the issue, the court remanded to the lower court to determine whether the government could release documents without revealing that they were part of the grand jury file.”  “A subpoena is a tool of investigation.”  “Rule 6(e) prevents disclosing the grand jury’s investigation.”  “Since revealing the results of a subpoena generally reveals the contents of the subpoena itself, the only question is whether it is possible to reveal the subpoenaed documents without revealing the subpoena.” “[The requester] contends that it is possible under caselaw that allows releasing documents that preexist the grand jury investigation.”  “As explained below, however, those cases apply only when the documents come from at least one source independent of the grand jury.”  “Rule 6(e) bars disclosing nearly all the six million documents subject to [the requester’s] FOIA request.”  “[The requester] seeks documents the Government obtained through a grand jury subpoena – and through no other means.”  “On that fact alone, Rule 6(e) bars disclosure.” Additionally, “the special master misread [the requester’s] request and concluded that he does not seek grand jury materials.”  “The record says otherwise.”  “[The requester] seeks to discover what criminal charges the grand jury considered.” “This fact also dooms the request.” “Applying any of the three relevant factors leads to the same result:  Rule 6(e) bars disclosure of these documents.”  “On appeal, [the requester] claims that he seeks the documents for their ‘own sake rather than to learn what took place before a grand jury’ because ‘research and public dissemination’ is ‘an independent and legitimate purpose.’”  “While the purpose of his request may be legitimate, it is not independent.” “Whether [the requester’s] request references a grand jury proceeding, the documents are not ‘preexisting business records’ . . . .”  “Once an attorney curates a collection of documents, that collection becomes a product itself.”  “[The requester] requests that product.”
  
  “Finally, the release of these records would ‘compromise the integrity of the grand jury process.’”  “The special master found otherwise because the documents at issue were ‘created for purposes independent of the grand jury proceeding,’ unlike ‘witness lists, summaries of grand jury testimony, copies of subpoenas, and the like.’” “Thus, the special master appeared to believe that Rule 6(e) applies only to materials created for or by the grand jury.”  “That cannot be.”  “‘Disclosure of a grand-jury matter – other than the grand jury’s deliberations or any grand juror’s vote – may be made to’ certain government personnel.”  “So, as a textual matter, ‘matter[s] occurring before the grand jury’ must mean something more than just grand jury deliberations.” “Plus, Rule 6(e) protects ‘the integrity of the grand jury process’ as a whole – not just deliberations.”  “And other courts have concluded that Rule 6(e) protects preexisting documents turned over to the grand jury.”  “Whether the documents reveal the grand jury’s deliberative process is not the only question.”  “Rule 6(e) bars revelation of any ‘matter’ before the grand jury – and ‘matters’ includes the investigation, too.”  “If the grand jury investigated [certain] internal emails or technical documents, the Rule protects the fact of that investigation from disclosure.” “The government cannot release those documents without revealing that the grand jury investigated them.”  “Thus, their release ‘would compromise ‘“the integrity of the grand jury’s deliberative process.”’”
  
  “The government may disclose documents in its possession independent of a grand jury, even if duplicate documents also appear in a grand jury file.”  “But the government has these documents only through a grand jury subpoena – and through no other source.”  “There is a difference between producing a file that coincidentally overlaps with a grand jury subpoena file and producing the file itself.”  “Commingling documents can obscure their source, thus creating one factor that may allow the release of documents subpoenaed by a grand jury without compromising ‘the integrity of the grand jury’s deliberative process.’” “That factor does not apply here.” “Thus, Rule 6(e) bars the disclosure of these documents, and Exemption 3 to FOIA applies.”