January 17, 2003

Ms. Charlotte Hale
Staff Reporter

The News Journal
P.O. Box 15505
Wilmington, DE 19850

Dear Ms. Hale:

On December 16, 2002, we received your complaint alleging that New Castle County ("the County") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA") by denying you access to "subpoenas issued to either New Castle County government or individual county employees by the U.S. Attorney's Office since September 1, 2002."

By letter dated December 18, 2003, we asked the County to respond to your complaint. Because of the holidays, we granted the County's request for an extension of time to respond. We received the County's response on January 10, 2003. The County claims that the subpoenas you requested are not subject to FOIA because they are exempted from disclosure by federal statute.

Relevant Statutes

FOIA requires that "[a]ll public records shall be open for inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body" 29 Del. C. § 10002(a).

FOIA exempts from disclosure "any records specifically exempted from public disclosure by statute or common law." Id. § 10002(d)(6).

Like Delaware's FOIA, the federal FOIA has an exemption for "matters that are specifically exempt from disclosure by statute." 5 U.S.C. § 552(b)(3). One such statute is Rule 6(e) of the Federal Rules of Criminal Procedure (codified in 18 U.S.C.), which generally prohibits the disclosure of "matters occurring before the grand jury, except as otherwise provided for in these rules."

In Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 868 (D.C. Cir. 1981), the federal appeals court held that Rule 6(e)'s "ban on disclosure is for FOIA purposes absolute." The exemption under FOIA "encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like." 656 F.2d at 869. "Witness names are clearly covered, as are documents subpoenaed as exhibits. Potential witnesses and potential documentary exhibits, while less clearly within the rule, are exempt if disclosure would reveal the direction and strategy of the investigation." 656 F.2d at 869. See also Durham v. United States Department of Justice, 829 F. Supp. 428, 432 (D.D.C. 1993) (disclosure of grand jury subpoenas "would enable the identification of witnesses" and show "the direction of the investigation").

We follow these federal authorities, and conclude that Rule 6(e) of the Federal Rules of Criminal Procedure is a statute that specifically exempts the disclosure of grant jury subpoenas under Delaware's FOIA.

For the foregoing reasons, we determine that the County did not violate FOIA by denying you access to the grand jury subpoenas you requested.

W. Michael Tupman
Deputy Attorney General

APPROVED

_______________________

Malcolm S. Cobin, Esquire
State Solicitor