Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-C-0888 -- James B. Parsons, Judge.
Before SWYGERT, Senior Circuit Judge, CUDAHY, Circuit Judge, and EAST, Senior District Judge .*fn*
SWYGERT, Senior Circuit Judge . At issue in this appeal is whether section 4F(b) of Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Hart-Scott-Rodino), 15 U.S.C. § 15f(b), authorizes the disclosure of grand jury materials to a state attorney general without the traditional showing of particularized need.*fn1 The district court concluded that it does not, and accordingly refused to order disclosure to the Illinois Attorney General of any materials that had been gathered or generated in connection with a grand jury criminal investigation of numerous individuals and companies, who are now defendants in a class action lawsuit brought by the State of Illinois.*fn2 We affirm.
In December 1976, the Antitrust Division of the United States Department of Justice began a grand jury investigation concerning possible violations of the federal criminal laws by persons in the construction trades in Illinois. In June 1978, a grand jury indicted eighteen corporations, thirteen persons, and a labor union for conspiring to rig bids in public sheet metal projects in metropolitan Chicago, in violation of section 1 of the Sherman Act, 15 U.S.C.§ 1, and the federal mail fraud statute, 18 U.S.C. § 1341. In January 1979, the grand jury indicted eighteen corporations and five persons for a bid-rigging conspiracy in piping construction projects in the Chicago area, also in violation of 15 U.S.C. § 1 and 18 U.S.C. § 1341. Forty-eight of the defendants entered pleas of nolo contendre and received fines and/or sentences. Four of the nine remaining defendants were convicted. All proceedings in the criminal cases have been terminated.
Several civil class actions were filed by the State of Illinois under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26. The State's civil actions tracked the criminal indictments, naming as additional defendants numerous persons and certain companies previously identified as unindicted co-conspirators in the criminal actions.
Pursuant to section 4F(b) of Hart-Scott-Rodino, 15 U.S.C. § 15f(b), the Illinois Attorney General sought all relevant materials in the possession of the United States Attorney General. The Department of Justice provided the Illinois Attorney General with documents totaling fewer than twenty pages. All remaining materials, the Department of Justice represented, were grand jury materials which could not be released absent a court order. In January 1980, the State of Illinois petitioned the district court, pursuant to section 4F(b) and Rule 6(e), Fed.R.Crim.P., for production of all grand jury materials.*fn3 The United States did not object to the disclosure of grand jury materials to the State of Illinois. Certain defendants in the civil suits and others intervened to oppose the State's petition.
In January 1981, the district court denied the Illinois Attorney General access to any of the requested grand jury materials. The district judge stated that the "investigative files and other materials" language of section 4F(b) did not refer to "material acquired by and belonging to the grand jury...." He also noted that section 4F(b) states that documents are to be released only "to the extent permitted by law" and that Fed.R.Crim.P. 6(e) determines the conditions under which disclosure of grand jury materials is permissible. Because the district judge found that the petitioners had failed to meet the particularized need standard required for disclosure under Rule 6(e), access to the grand jury materials was refused.
The Fourth and Ninth Circuits have considered whether section 4F(b) was intended to alter the standards for disclosure of grand jury materials under Fed.R.Crim.P. 6(e) and both have concluded that it was so intended. United States v. Colonial Chevrolet Corp ., 629 F.2d 943 (4th Cir. 1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1352 (1981); United States v. B.F. Goodrich Co ., 619 F.2d 798 (9th Cir. 1980). For the reasons that follow, we respectfully disagree.*fn4
The issue of disclosure of grand jury materials under section 4F(b) presents two questions of statutory construction: (1) whether grand jury materials are encompassed within the "investigative files or other materials" language of section 4F(b), and (2) assuming that they are, whether their disclosure is prohibited because section 4F(b) provides for disclosure only "to the extent permitted by law."
The Fourth Circuit concluded that the definition of "investigative files" included grand jury materials. Noting that the grand jury investigation is often "the most important part of the 'investigative file' in an antitrust proceeding," and that the assistance Congress intended to provide "would frequently be negligible" if grand jury materials were excluded, the court held that grand jury transcripts in the possession of the Department of Justice were "investigative files and other materials" as used in the statute. 629 F.2d at 947. The Ninth Circuit also decided that "investigative files and other materials" included grand jury materials, but it did not specify any reasons for that conclusion.
We doubt that Congress was thinking of grand jury materials when it statutorily required the United States Attorney General to make available upon request "investigative files and other materials." Beginning as we must with the statutory language itself, we note that grand jury materials are never mentioned. Moreover, the law does not permit the Department of Justice to release grand jury materials to a state attorney general "upon request" although literally that is what the petitioner's interpretation of the statute prescribes. The parties agree that a court order is ...