Section 4F(a) of the Clayton Act, enacted in 1976, provides
that, whenever the Attorney General of the United States has
brought an action under the federal antitrust laws and has reason
to believe that any state attorney general would be entitled to
bring an action under the Act based on substantially the same
alleged violation, he shall give written notification to that
official. Under § 4F(b), in order to assist a state attorney
general in evaluating this notice or in bringing an action, the
United States Attorney General, upon the state attorney general's
request, must make available to him,
"to the extent permitted by law, any investigative files or
other materials which are or may be relevant or material to the
actual or potential cause of action"
under the Act. After the Justice Department had refused the
State of Illinois' request for certain grand jury materials
involved in an investigation of alleged violations of the federal
antitrust laws, the Attorney General of Illinois filed a petition
in Federal District Court asserting a right of access to such
materials, and contending that § 4F(b) made it unnecessary for him
to meet the "particularized need" standard required under Federal
Rule of Criminal Procedure 6(e). The District Court denied the
petition, and the Court of Appeals affirmed.
Held: Section 4F(b) does not give the state attorney
general a special right of access to grand jury materials that is
independent of or modifies the limitations imposed by Rule 6(e).
Pp.
460 U. S.
565-573.
(a) Rule 6(e) establishes a "General Rule of Secrecy" by
providing that grand jury transcripts shall remain in the custody
of the attorney for the Federal Government "unless otherwise
ordered by the court in a particular case." One seeking disclosure
under Rule 6(e) is normally required to make a showing of a
"particularized need" in order to obtain access to grand jury
materials. Under that Rule, a state attorney general cannot obtain
access to federal grand jury proceedings without federal court
approval, and such approval cannot be obtained merely by alleging
that the materials are relevant to an actual or potential civil
antitrust action. Accordingly, it follows from the language of §
4F(b) mandating disclosure of investigative files and other
materials only "to
Page 460 U. S. 558
the extent permitted by law," that the Illinois Attorney General
is not entitled to the disclosure sought in this case. Pp.
460 U. S.
565-568.
(b) Section 4F(b)'s legislative history supports the conclusion
that Congress intended the section to recognize the "General Rule
of Secrecy," and did not intend to change applicable law concerning
grand jury materials. Pp.
460 U. S.
568-571.
(c) The Act's general goals of enhancing federal-state
cooperation and encouraging more state lawsuits against
price-fixers are not sufficient to show that Congress intended to
change existing rules of law, absent an affirmative expression of
intent to do so. Pp.
460 U. S.
572-573.
659 F.2d 800, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
BRENNAN, J., filed a concurring opinion, in which O'CONNOR, J.,
joined.,
post, p.
460 U. S. 573.
Page 460 U. S. 559
JUSTICE STEVENS delivered the opinion of the Court.
The Attorney General of Illinois asserts a statutory right of
access to transcripts, documents, and other materials gathered
Page 460 U. S. 560
or generated by two federal grand juries during their
investigations of alleged violations of the federal antitrust laws.
He contends that § 4F(b) of the Clayton Act, 90 Stat. 1395, 15
U.S.C. § 15f(b), enacted as part of Title III of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Act), makes
it unnecessary for him to meet the "particularized need" standard
generally required under Rule 6(e) of the Federal Rules of Criminal
Procedure in order to obtain access to grand jury materials.
Disagreeing with two other
Page 460 U. S. 561
Courts of Appeals, [
Footnote
1] the Seventh Circuit rejected this contention. We granted
certiorari to resolve the conflict, 455 U.S. 1015 (1982), and now
affirm.
I
On January 31, 1980, the State of Illinois filed a petition in
the United States District Court for the Northern District of
Illinois seeking disclosure of transcripts and documents generated
during two federal grand jury investigations of alleged bid-rigging
in the construction trades in Illinois. These investigations had
resulted in the return of three separate indictments naming 59
defendants. [
Footnote 2] At the
time the State filed its petition, most of the defendants had
entered pleas of
nolo contendere to the federal charges
and one had been found guilty by a jury, but eight defendants were
still awaiting trial. [
Footnote
3] The Justice Department had refused the State's request for
the grand jury materials, [
Footnote
4] explaining that they
Page 460 U. S. 562
could not be disclosed without a court order under Rule 6(e) of
the Federal Rules of Criminal Procedure. [
Footnote 5]
The State advised the District Court that it had already
initiated civil class actions against 86 defendants, charged in the
indictments or identified as unindicted coconspirators, to recover
damages based on federal antitrust violations. The State's petition
invoked § 4F(b) [
Footnote 6]
and Rule 6(e) in support of
Page 460 U. S. 563
disclosure. It further stated that
"the materials requested are extremely relevant and material to
Plaintiff's causes; their disclosure will insure and promote
efficient and economical utilization of scarce judicial and
taxpayers resources, and will also obviate the need for duplicative
and redundant discovery. . . ."
App. 13. The Department of Justice supported the State's
petition. [
Footnote 7] Certain
defendants in the civil suits and others who had testified before
the grand juries intervened to oppose disclosure.
The District Court first considered the State's claim that it
had a statutory right of access under § 4F(b) without making any
showing of compelling or particularized need. The court concluded
that, in response to a § 4F(b) request, the Justice Department was
free to disclose documents that were independently acquired by the
Executive Branch and voluntarily presented to the grand jury. But
it held that transcripts of grand jury testimony and other
materials acquired by the grand jury through the use of its
subpoena power were not part of the "investigative files" of the
Attorney General of the United States within the meaning of the
Act. Moreover, the court found nothing in the legislative history
of the Act to suggest that Congress intended either to authorize
"unmonitored
Page 460 U. S. 564
disclosure of purely grand jury materials" without a court order
under Rule 6(e), or to modify the standard traditionally applied
under Rule 6(e) itself.
The District Court then explained why the record as then
developed would not justify disclosure under Rule 6(e) without
reference to § 4F(b). Noting the absence of any special showing of
need for access to the grand jury materials, the scope of the
material otherwise available to the plaintiffs, and the interests
in grand jury secrecy that survived the termination of criminal
proceedings, [
Footnote 8] the
District Court denied all of the petitions for disclosure. The
denial, however, was without prejudice to renewed requests under
Rule 6(e) after discovery efforts created a basis for more narrowly
focused requests showing "particularized needs." [
Footnote 9]
Page 460 U. S. 565
The State of Illinois filed a timely appeal to the United States
Court of Appeals for the Seventh Circuit. On appeal, the State did
not contend that its petition had satisfied the showing of
particularized need normally required under Rule 6(e). Instead, it
presented the issue that had been finally resolved by the District
Court's order: whether § 4F(b) gives the state attorney general a
special right of access to grand jury materials that is independent
of or that modifies the limitations that were imposed by Rule 6(e)
in 1976 when the Act became law. Noting that the plain language of
the Act authorizes disclosure only "to the extent permitted by
law," and that the legislative history affirmatively indicates
Congress' intent to preserve then-existing limitations on access to
grand jury materials, the Court of Appeals affirmed.
In re
Illinois Petition to Inspect and Copy Grand Jury Materials,
659 F.2d 800 (1981).
II
Section 4F(a) of the Clayton Act, 15 U.S.C. § 15f(a), provides
that, whenever the Attorney General of the United States has
brought an action under the antitrust laws, and he has reason to
believe that any state attorney general would be entitled to bring
a federal action based substantially on the same alleged violation,
he shall promptly give written notification to that official. Under
§ 4F(b), 15 U.S.C. § 15f(b), in order to assist a state attorney
general in evaluating this
Page 460 U. S. 566
notice or in bringing an action, the Attorney General of the
United States
"shall, upon request by such State attorney general, make
available to him, to the extent permitted by law, any investigative
files or other materials which are or may be relevant or material
to the actual or potential cause of action under this Act."
The plain language of § 4F(b) requires us to evaluate the legal
context in which Congress legislated in 1976. The statute expressly
mandates disclosure of investigative files and other materials only
"to the extent permitted by law." It is therefore appropriate to
examine the extent to which, at the time the Act was passed,
federal law permitted the Attorney General of the United States to
disclose matters occurring before a federal grand jury to a state
attorney general. [
Footnote
10]
Since 1946, the disclosure of grand jury minutes has been
governed by Rule 6(e) of the Federal Rules of Criminal Procedure.
In so many words, the Rule establishes a "General Rule of Secrecy,"
a knowing violation of which "may be punished as a contempt of
court." [
Footnote 11] The
Rule provides that
Page 460 U. S. 567
grand jury transcripts shall remain in the custody of the
attorney for the Government "unless otherwise ordered by the court
in a particular case." [
Footnote
12] There is only one exception to the general prohibition
against disclosure without prior court approval, but that exception
is limited to Federal Government personnel performing a specified
federal law enforcement function. [
Footnote 13] Plainly Rule 6(e) does not permit the
Attorney General of the United States to disclose any grand jury
proceedings to a state attorney general unless he is directed to do
so by a court.
The court, however, is authorized by Rule 6(e)(3)(C) to permit
certain disclosures that are otherwise prohibited by the "General
Rule of Secrecy." The scope of that authority has been delineated
in a series of cases setting forth the standard of "particularized
need." [
Footnote 14] We need
not delineate the precise contours of that standard in this case,
because the State made no attempt to make any such showing in the
District Court,
see n
8,
supra, and has consistently maintained that it need not
shoulder that burden. [
Footnote
15]
Page 460 U. S. 568
Thus, under the law as it existed in 1976, two propositions were
clear: (1) a state attorney general could not obtain access to
federal grand jury proceedings without federal court approval; and
(2) the State could not secure such approval merely by alleging
that the materials were relevant to an actual or potential civil
antitrust action. [
Footnote
16] At the time the Act was passed in 1976, a blanket
disclosure request comparable to the one at issue in this case
would have been denied, because it was not permitted by law. The
State does not suggest that there has been any change in the law
since 1976 that affects its right to disclosure. [
Footnote 17] It therefore follows from the
plain language of the Act that the State Attorney General is not
entitled to the disclosure he seeks in this case.
III
If the text of § 4F(b) left any doubt concerning its recognition
of the "General Rule of Secrecy" for grand jury materials,
Page 460 U. S. 569
that doubt would be removed by its legislative history. First,
Congress considered and rejected a proposed section that would have
specifically granted civil antitrust plaintiffs a right of access
to grand jury materials after completion of federal civil or
criminal proceedings. As reported by the Senate Judiciary
Committee, the provision eliminated the particularized need
requirement and permitted disclosure, subject to court-imposed
conditions, upon payment of reasonable costs. [
Footnote 18] The proposed sweeping invasion of
grand jury secrecy drew substantial criticism from a number of
Senators. [
Footnote 19] A
floor amendment limited the section's scope, and, as amended, it
was adopted by the Senate, [
Footnote 20] but at the informal House-Senate conference,
the House conferees objected and the Senate's provision was
dropped. [
Footnote 21] The
net effect of these
Page 460 U. S. 570
deliberations was to leave the law applicable to grand jury
materials unchanged.
Second, a specific explanation of § 4F(b) by Senator.Abourezk,
the floor manager of the legislation, confirms the conclusion that
Congress did not intend to change existing law concerning grand
jury materials. The section was included in the compromise bill
accepted by an informal House-Senate conference. After Senator
Hruska expressed his concern that § 4F(b) might require the
Department of Justice to act as "a massive document distribution
center for the benefit of State officials," [
Footnote 22] Senator Abourezk explained:
"The section specifically limits the Attorney General's power to
release documents to whatever his powers are under existing law.
Under existing law, he cannot turn over materials given in response
to a grand jury demand or to a civil investigative demand.
Therefore, the section is limited by existing law to cases where
materials were turned over voluntarily."
122 Cong.Rec. 29160 (1976). Senator Abourezk's interpretation of
this provision was not questioned. [
Footnote 23]
Page 460 U. S. 571
Third, the Act's treatment of material obtained by the
Government in response to Civil Investigative Demands (CID's)
supports our interpretation of § 4F(b). The Act increases the
Attorney General's CID powers, [
Footnote 24] but mandates that materials obtained in this
manner be kept strictly confidential. CID materials may not be
disclosed to persons outside the Federal Government without the
consent of the provider. 15 U.S.C. § 1313 (1976 ed. and Supp. V).
This requirement was imposed to safeguard the rights of individuals
under investigation and to protect witnesses from retaliation.
[
Footnote 25] Since those
reasons also underlie the traditional secrecy accorded to the grand
jury, it would be anomalous for the same Congress that placed
stringent limits on CID materials silently to have abrogated grand
jury secrecy by permitting wholesale disclosure. [
Footnote 26]
Page 460 U. S. 572
IV
Finally, the State argues that the Act implements a general
policy of encouraging federal/state cooperation and giving state
attorneys general an important role in the enforcement of the
antitrust laws. According to the State, this broad legislative goal
would be served by facilitating the State's access to grand jury
materials. The State contends that virtually all of the Federal
Government's investigations of core Sherman Act violations -- such
as price-fixing and bid-rigging -- are conducted from the outset by
means of grand juries. [
Footnote
27] Therefore, as in this case, a narrow reading of § 4F(b)
would severely limit the amount of additional disclosure to state
attorneys general. Further, the State asserts, a "particularized
need" standard would be difficult to satisfy before a State has
filed a civil action and attempted civil discovery -- a stage when
§ 4F(b) is intended to provide assistance to the State.
However correct these assertions may be, they do not authorize
us to add specific language that Congress did not include in a
carefully considered statute. Congress, of course, has the power to
modify the rule of secrecy by changing the showing of need required
for particular categories of litigants. [
Footnote 28] But the rule is so important, and so
deeply rooted in our traditions, that we will not infer that
Congress has exercised
Page 460 U. S. 573
such a power without affirmatively expressing its intent to do
so. The general goals of enhancing federal-state cooperation in
antitrust enforcement, and encouraging more state lawsuits against
price fixers, are not sufficient. [
Footnote 29] The statute as enacted by Congress simply
does not authorize the Attorney General to turn over the entire
investigative record of a federal antitrust grand jury to a state
attorney general who has not complied with the judicially developed
standards implementing Rule 6(e). Because the disclosure requested
by the State in this case is not permitted by Rule 6(e) on the
basis of the showing it made to the District Court, the judgment of
the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
United States v. Colonial Chevrolet Corp., 629 F.2d 943
(CA4 1980) (placing the burden of justifying nondisclosure on the
opposing party),
cert. denied, 450 U.S. 913 (1981); and
United States v. B. F. Goodrich Co., 619 F.2d 798 (CA9
1980) (allowing disclosure on a showing of "relevance").
Contra, In re Grand Jury Investigation of Cuisinarts,
Inc., 665 F.2d 24 (CA2 1981) (§ 4F(b) did not change the
standard of "particularized need" for state attorneys general),
cert. pending, No. 81-1595.
[
Footnote 2]
In June, 1978, 18 corporations, 13 individuals, and a labor
union were charged with conspiring to rig bids on public sheet
metal projects in the Chicago area.
United States v. Climatemp,
Inc., 78 CR 388 (ND Ill.). On January 31, 1979, 21
corporations and 6 individuals were indicted for conspiring to rig
bids on piping construction projects in the same area.
United
States v. Borg, Inc., 79 CR 67 (ND Ill.) (felony);
United
States v. S. J. Reynolds Co., Inc., 79 CR 66 (ND Ill.)
(misdemeanor).
[
Footnote 3]
The State's memorandum in support of its petition, filed on
January 31, 1980, advised the court that eight defendants were
scheduled to begin trial on February 4, 1980. Four of these were
subsequently acquitted. On request of the Justice Department, the
State held its petition in abeyance pending completion of the
trial.
[
Footnote 4]
App. 4 (Justice Department notice to the Attorney General of
Illinois that indictments had been returned);
id. at 5, 7
(state requests for investigative materials relating to the
indictments). In response, the Justice Department furnished 19
pages of staff memoranda. It advised the State that, with respect
to other materials within the scope of the State's request, the
Department would support the State's request for court-ordered
disclosure.
Id. at 9-10.
[
Footnote 5]
Rule 6(e) provides, in part:
"Rule 6.
The Grand Jury"
* * * *
"(e)
Recording and Disclosure of Proceedings."
"(1)
Recording of proceedings. . . . The recording or
reporter's notes or any transcript prepared therefrom shall remain
in the custody or control of the attorney for the government unless
otherwise ordered by the court in a particular case."
"(2)
General rule of secrecy. A grand juror, an
interpreter, a stenographer, an operator of a recording device, a
typist who transcribes recorded testimony, an attorney for the
government, or any person to whom disclosure is made under
paragraph (3)(A)(ii) of this subdivision shall not disclose matters
occurring before the grand jury, except as otherwise provided for
in these rules. . . . A knowing violation of Rule 6 may be punished
as a contempt of court."
"(3)
Exceptions."
* * * *
"(C) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury may also be made -- "
"(i) when so directed by a court preliminarily to or in
connection with a judicial proceeding; or"
"(ii) when permitted by a court at the request of the defendant,
upon a showing that grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand jury."
"If the court orders disclosure of matters occurring before the
grand jury, the disclosure shall be made in such manner, at such
time, and under such conditions as the court may direct."
[
Footnote 6]
Section 4F of the Clayton Act, as added, 90 Stat. 1395, 15
U.S.C. § 15f, provides:
"(a) Whenever the Attorney General of the United States has
brought an action under the antitrust laws, and he has reason to
believe that any State attorney general would be entitled to bring
an action under this Act based substantially on the same alleged
violation of the antitrust laws, he shall promptly give written
notification thereof to such State attorney general."
"(b) To assist a State attorney general in evaluating the notice
or in bringing any action under this Act, the Attorney General of
the United States shall, upon request by such State attorney
general, make available to him, to the extent permitted by law, any
investigative files or other materials which are or may be relevant
or material to the actual or potential cause of action under this
Act."
[
Footnote 7]
Similar petitions were filed on behalf of other parties,
including local governmental entities and private persons, who had
also filed treble-damages actions against the defendants. The
Justice Department took no position with regard to these petitions.
The District Court consolidated the various petitions for purposes
of argument and decision.
[
Footnote 8]
"Petitioners have simply requested the release to them of all of
the grand jury material. In their quest for information, grand
juries often acquire reams of documents and hours of testimony
later to be found irrelevant to the investigation or the final
charge. Its wholesale disclosure could be embarrassing, if not
destructive of third parties or of unindicted individuals and
corporations concerned when witnesses are called upon to testify or
furnish evidence which involves them. This is one of the principal
reasons why grand jurors are sworn to secrecy. It is the duty of
the court in following 6(e) to protect from public scrutiny and
injury such individuals and corporations. Petitioners, after having
done little more than filing a suit, seek an all-encompassing,
unparticularized general type of full disclosure which, by the very
nature of the request, would defeat the spirit and rule of
Procter & Gamble and
Douglas Oil [
United
States v. Procter & Gamble Co., 356 U. S.
677 (1958);
Douglas Oil Co. v. Petrol Stops
Northwest, 441 U. S. 211 (1979)]. Their
request offends the common law concern for the traditional
protection of the innocent that has been built into our grand jury
system from its earliest conception."
App. to Pet. for Cert. 37a-38a. These comments carry special
weight because they were made by the Chief Judge of a large
metropolitan District, who had acquired a unique familiarity with
the problems associated with the supervision of the conduct of
grand juries.
[
Footnote 9]
Because the District Court's order finally disposed of the State
Attorney General's claim of a statutory right of access to grand
jury materials without a showing of particularized need, we are
satisfied that the order was appealable under 28 U.S.C. § 1291. The
court's acknowledgment that the State might subsequently seek
disclosure of particular materials under a "particularized need"
standard does not deprive the order of finality. The ruling at
issue in this case was made by the Chief Judge of the Northern
District of Illinois in a separately docketed proceeding,
see App. to Pet. for Cert. 40a; the opinion contemplates
that further disclosure requests would be filed with the District
Judges presiding over the State's civil antitrust actions,
id. at 39a.
See Illinois v. Sarbaugh, 552 F.2d
768, 773-774 (CA7 1977);
cf. Douglas Oil Co. v. Petrol Stops
Northwest, supra, at
441 U. S.
231-233 (REHNQUIST, J., concurring) (the District
Court's order granting access to grand jury minutes "disposes of
all of the contentions of the parties and terminates a separate
proceeding pending before the grand jury court" and is therefore
appealable as a "final decisio[n]" under 28 U.S.C. § 1291).
[
Footnote 10]
The parties have briefed and argued, as a separate question,
whether grand jury files are included in the "investigative files
or other materials" covered by § 4F(b). Respondents suggest that,
because the section imposes upon the Attorney General an automatic
and mandatory obligation to disclose the materials to which it does
apply, it simply does not apply to grand jury materials -- which
can be disclosed only if authorized by a court. Given our reading
of the statute's proviso that disclosure shall be made "to the
extent permitted by law," we do not need to address this question
separately.
[
Footnote 11]
See Rule 6(e)(2), quoted in
n 5,
supra. The General Rule of Secrecy codifies
a longstanding rule of common law which we have recognized as "an
integral part of our criminal justice system."
Douglas Oil Co.
v. Petrol Stops Northwest, supra, at
441 U. S. 218,
n. 9. Several distinct interests are served by safeguarding the
confidentiality of grand jury proceedings.
See 441 U.S. at
441 U. S. 219,
and n. 10. Even after the conclusion of a particular grand jury's
investigation, continued secrecy protects the reputations of the
innocent and safeguards witnesses from possible retaliation. In
addition, stringent protection of the secrecy of completed grand
jury investigations may be necessary to encourage persons to
testify fully and freely before future grand juries.
Id.
at
441 U. S. 222.
More generally, grand jury secrecy has traditionally been invoked
to justify the limited procedural safeguards available to witnesses
and persons under investigation.
[
Footnote 12]
Rule 6(e)(1).
[
Footnote 13]
Rule 6(e)(3)(A)(B).
[
Footnote 14]
See Douglas Oil Co., 441 U.S. at
441 U. S.
221-224.
"Parties seeking grand jury transcripts under Rule 6(e) must
show that the material they seek is needed to avoid a possible
injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy, and that
their request is structured to cover only material so needed."
Id. at
441 U. S. 222
(footnote omitted);
see also United States v. Procter &
Gamble Co., 356 U.S. at
356 U. S. 682;
Pittsburgh Plate Glass Co. v. United States, 360 U.
S. 395,
360 U. S.
398-399 (1959);
cf. Dennis v. United States,
384 U. S. 855
(1966).
[
Footnote 15]
The State's petition sought all materials gathered or generated
by the grand jury investigations. In this Court, the State concedes
that the district court may properly exercise its discretion to
determine whether to disclose the requested materials, but it
proposes "a standard less restrictive than particularized need."
See Brief for Petitioner 30-33, 42-43. Under this
standard, the district court would determine whether disclosure
would undermine an ongoing or potential federal enforcement
proceeding and whether countervailing interests require secrecy,
and it could impose appropriate protective limitations upon
disclosure.
Ibid. The United States, as respondent under
this Court's Rule 19.6, in support of petitioner proposes a similar
test.
See Brief for United States 24-28. However such a
standard might be formulated, it differs from the "particularized
need" standard, which is expressly preserved by § 4F(b). But in
rejecting such a rule, we stress that, under the particularized
need standard, the district court may weigh the public interest, if
any, served by disclosure to a governmental body -- along with the
requisite particularized need -- in determining whether "the need
for disclosure is greater than the need for continued secrecy."
Douglas Oil Co., supra, at
441 U. S.
222.
[
Footnote 16]
The State does not directly argue that, apart from § 4F(b), the
law permits it to obtain grand jury materials without a showing of
particularized need. At oral argument, the Assistant Attorney
General expressed uncertainty regarding the legal standard that
would apply in the absence of § 4F(b). Tr. of Oral Arg. 10.
Cf. Brief for United States 15, n. 10 (expressing no
opinion on the standard applicable to State requests for grand jury
materials in the absence of § 4F(b)).
[
Footnote 17]
Although we examine the law in 1976 as an aid to interpreting
the intent of the Congress that enacted § 4F(b), the terms of the
Act would, of course, be satisfied if a requested disclosure is
"permitted by law" at the time the request is made.
[
Footnote 18]
See S.Rep. No. 94-803, pp. 4, 33-35, 128, 152 (1976) (§
202(
l) of S. 1284). The Senate Judiciary Committee bill
also authorized the Attorney General to give the Federal Trade
Commission access to these grand jury materials.
Id. at
31-32 (§ 202(k)).
[
Footnote 19]
See, e.g., id. at 203-204 (minority views of five
members of Judiciary Committee); 122 Cong.Rec. 15318 (1976) (Sen.
Thurmond);
id. at 15835 (Sen. Allen);
id. at
17428-17431 (Sen. Tower). The proposal was also opposed by the
administration.
Id. at 17038.
One of the leading opponents of § 212(
l), Senator
Allen, introduced a substitute amendment, defeated by the Senate,
which was virtually identical in wording to the section in the
House bill that was later enacted into law as § 4F(b).
See
id. at 15852-15853, 16824-16825, 17194. Senator Allen's
support of this provision, coupled with his strong opposition to §
212(
l), indicates that § 4F(b) was not intended to
abrogate traditional protections of grand jury secrecy.
[
Footnote 20]
The amendment limited disclosure to cases in which a defendant
had entered a plea of guilty or
nolo contendere, and
permitted only the disclosure of material provided by that
defendant, not by third parties.
Id. at 15917-15918,
16922-16923. Amended § 202(
l) was part of the bill adopted
by the Senate on June 10, 1976.
Id. at 17572.
[
Footnote 21]
Id. at 29147. After the conference, Senator Abourezk,
the Senate floor manager of the bill, prepared a chart comparing
the Senate and House versions. The chart showed that S. 1284 gave
private plaintiffs and the FTC access to grand jury materials, and
that the House version had no comparable provisions. In another
section, it stated that the House bill provided that state
attorneys general may obtain investigative files or other materials
from the United States Attorney General "to the extent permitted by
law," and noted that the Senate bill had no such provision.
See
id. at 29151-29152. The chart's structure and wording strongly
suggest that § 4F(b) did not contemplate disclosure of grand jury
materials to state attorneys general.
[
Footnote 22]
Id. at 29144.
[
Footnote 23]
This statement in floor debate is consistent with language in a
House Committee Report on an earlier version of the statute, which
explains that the Justice Department's investigative files "are to
be made available except where specifically prohibited." H.R.Rep.
No. 94-499, p. 17 (1975). This language merely paraphrases the
plain language of the statute; Rule 6(e) quite specifically
prohibits disclosure of grand jury documents save under specified
conditions.
[
Footnote 24]
Limited CID authority was conferred upon the Attorney General by
the Antitrust Civil Process Act of 1962, Pub.L. 87-664, 76 Stat.
548. The Attorney General's powers were considerably expanded by
Title I of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, codified at 15 U.S.C. § 1311
et seq. (1976 ed. and
Supp. V).
[
Footnote 25]
See H.R.Rep. No. 94-1343, pp. 3, 8, 18 (1976); S.Rep.
No. 94-803,
supra, n 18, at 30-31; 122 Cong.Rec. 29341 (1976) (explanation
of House-Senate compromise bill by Sen. Hart).
[
Footnote 26]
Indeed, the House Report explains the Justice Department's need
for increased CID powers by canvassing the inadequacy of each
alternative, including grand jury investigations, for civil
enforcement purposes.
"The Division might try to empanel a grand jury, as it currently
does in criminal antitrust investigations, and use the sweeping,
compulsory powers of that investigative body to unearth evidence of
civil violations. But the U.S. Supreme Court has virtually
eliminated the Antitrust Division's power to utilize the grand jury
as a civil investigative tool. In
United States v. Procter
& Gamble, 356 U. S. 677 (1958), Justice
Douglas concluded that, 'if the prosecution were using . . .
criminal procedures to elicit evidence in a civil case, it would be
flouting the policy of the law.' That is because such a use of the
grand jury would subvert the Division's policy of proceeding
criminally only against flagrant, willful offenses, and would
debase the law 'by tarring respectable citizens with the brush of
crime when their deeds involve no criminality.'"
H.R.Rep. No. 94-1343,
supra, at 5.
[
Footnote 27]
Brief for Petitioner 14-15.
Although the State cites passages from hearings to show that
Congress was aware of the Justice Department's use of the grand
jury,
id. at 16, n. 4, these passages stressed that grand
jury investigations were of limited usefulness in civil
enforcement, and urged the adoption of strengthened CID powers.
[
Footnote 28]
Congress has, on occasion, done precisely that. In 1966, it
approved amendments to Rule 16 that gave defendants a right to
obtain copies of their prior statements before grand juries;
Fed.Rule Crim.Proc. 16(a)(1)(A). In 1977, it amended Rule 6(e) to
permit disclosure of grand jury materials to personnel assisting
United States Government attorneys in the enforcement of federal
criminal law. Fed.Rule Crim.Proc. 6(e)(3)(A).
See also 18
U.S.C. § 3500(e)(3) (Jencks Act).
[
Footnote 29]
The 1976 legislation was designed to enhance the effectiveness
of antitrust enforcement on behalf of small consumers. The
availability of information to antitrust plaintiffs, however, was
not at the forefront of legislative deliberations. Congress focused
on the difficulty of achieving class certification of consumer
actions under Rule 23 of the Federal Rules of Civil Procedure and
the complexity of measuring and distributing damages in such cases.
See generally H.R.Rep. No. 94-499,
supra,
n 23, at 3-8; S.Rep. No.
94-803,
supra, n
18, at 6-7, 39-40. To remedy these problems, the 1976 statute
permits state attorneys general the right to institute
parens
patriae suits on behalf of state residents, 15 U.S.C. § 15c;
exempts such suits from the class action requirements of Rule 23, §
15c(a); and allows damages in these suits to be computed through
aggregation techniques, § 15d. Therefore, the State exaggerates
when it asserts that the 1976 Act's purposes would be frustrated if
Rule 6(e) continued to be applied to state requests for access to
grand jury materials.
JUSTICE BRENNAN, with whom JUSTICE O'CONNOR joins,
concurring.
I join in the Court's opinion. I write separately to state my
view that, when a district court considers "the public interest, if
any, served by disclosure to a governmental body,"
ante at
460 U. S. 568,
n. 15, that consideration may properly include consideration of a
specific statutory policy favoring disclosure in particular
circumstances. In this case, the district court would have before
it the specific provisions of § 4F(b) of the
Page 460 U. S. 574
Clayton Act. I agree with the Court that § 4F(b) does not
relieve a State of the requirement that it show particularized need
under Rule 6(e) and
Douglas Oil Co. v. Petrol Stops
Northwest, 441 U. S. 211
(1979); but it does not follow that § 4F(b) is irrelevant to the
Douglas Oil balancing test
When the district court has before it a statute clearly evincing
Congress' intent to foster cooperation with and disclosure to state
governments to aid them in enforcement of federal antitrust laws,
that is surely material to the public interest served by disclosure
to such governments.