In 1985, the Supreme Court adopted an amendment to the Federal Rules of Criminal Procedure that added a new subdivision, 6(e)(3)(E)(iv). This change was for the stated purpose of eliminating "an unreasonable barrier to the effective enforcement of our two-tiered system of criminal laws (by allowing) a court to permit disclosure to a State or local official for the purpose of enforcing State law when an attorney for the government so requests and makes the requisite showing." (See the notes of the Advisory Committee on Criminal Rules of the Judicial Conference of the United States.) The subdivision now reads as follows:

(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand jury matter...

(iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law.

It is both the intent of the amended rule, and the policy of the Department of Justice, to share grand jury information whenever it is appropriate to do so. Thus, the phrase "appropriate official of a State or subdivision of a State" shall be interpreted to mean any official whose official duties include enforcement of the State criminal law whose violation is indicated in the matters for which disclosure authorization is sought. This policy is, however, subject to the caution in the Advisory Committee notes that "(t)here is no intention to have Federal grand juries act as an arm of the State."

It is clear that the decision to release or withhold grand jury information may have a significant impact upon relations between Federal prosecutors and their state and local counterparts, and disclosure may raise issues that go to the heart of the Federal grand jury process. Accordingly, Federal prosecutors must request authorization to apply for an order permitting the disclosure of grand jury material to State or State subdivision authorities under Rule 6(e)(3)(E)(iv). In a matter being handled by a United States Attorney’s Office, Assistant United States Attorneys must seek prior authorization from the United States Attorney (or a delegated Supervisory Assistant United States Attorney). In a matter being handled by a litigating Division within the Department, Federal prosecutors must seek prior authorization from the Assistant Attorney General of that Division (or a delegate). A form is available to Department attorneys for submitting requests to the Criminal Division for approval to disclose grand jury information under Rule 6(e)(3)(E)(iv).

Prosecutors are cautioned that in certain types of cases, particularly tax and tax-related cases, some grand jury information may also be subject to additional statutory and regulatory restrictions governing disclosure and sharing. See, e.g., 26 U.S.C. § 6103.

[updated January 2020]