Empower Oversight Whistleblowers & Research, a nonprofit organization, sought to unseal applications filed by the Department of Justice to obtain non-disclosure orders under the Stored Communications Act. These applications were part of a grand jury investigation into the unauthorized disclosure of classified information, specifically involving a subpoena issued to Google in 2017 for the email and phone records of Jason Foster, a former Senate Judiciary Committee counsel. Empower argued that the applications were judicial records subject to a presumptive right of access under the common law and the First Amendment, and that grand jury secrecy had been waived by various public disclosures. The district court partially denied the motion, ruling that the applications were ancillary grand jury records protected by Rule 6(e)(6) and that the public disclosures were insufficient to waive secrecy. Empower appealed, renewing its arguments and introducing a new Department of Justice Office of Inspector General report issued in December 2024.
Senior Circuit Judge Rogers, writing for the panel, began by clarifying the legal framework governing the Stored Communications Act and Federal Rule of Criminal Procedure 6(e). The Act allows the government to seek non-disclosure orders to prevent service providers from notifying subscribers of subpoenas, while Rule 6(e)(6) mandates that records relating to grand jury proceedings be kept under seal to prevent unauthorized disclosure of matters occurring before the grand jury. The court addressed Empower's primary contention that the applications were judicial records entitled to a common law right of access. While acknowledging that the Supreme Court and the D.C. Circuit have recognized a strong presumption of access to judicial records, the court held that this right yields when Congress has spoken directly to the issue. Here, Rule 6(e)(6) applies to the applications because they concern protocols for disclosing grand jury subpoenas, which inherently risks revealing secret aspects of the investigation. Consequently, the common law right of access is displaced. The court similarly rejected the First Amendment claim, noting that there is no First Amendment right of access to grand jury proceedings or ancillary materials dealing with grand jury matters. Regarding the argument that the investigation's closure or public disclosures waived secrecy, the court found that grand jury secrecy serves to protect the reputations of exonerated individuals and encourage frank testimony, even after an investigation closes. The court also found that the specific disclosures cited by Empower, including media reports and Google sharing a redacted subpoena, were not sufficiently broad to constitute a waiver under the 'cat is out of the bag' standard. Finally, the court declined to address the new OIG report on the merits because it was issued after the district court's order and appellate courts generally do not receive new evidence, but remanded for the district court to consider amending the motion to include the report.
The decision reinforces the robust protection of grand jury secrecy under Rule 6(e)(6), confirming that ancillary records like non-disclosure applications are shielded from public access even when the underlying investigation is closed or when there are some public disclosures. Practically, the government can continue to use non-disclosure orders without fear of automatic unsealing based on common law or First Amendment arguments. The remand instruction allows the district court to potentially reconsider the unsealing motion if the new OIG report provides new factual grounds, but the appellate court's core legal holding regarding the displacement of access rights by Rule 6(e) remains controlling.
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