The opinion of the court was delivered by: RAMBO
On April 10, 1984, this court denied defendant Metropolitan Edison Company's Motion for Disclosure of the record of the March, 1983 grand jury. 585 F. Supp. 231. In so deciding, the court relied on two recent Supreme Court decisions, United States v. Baggot, 463 U.S. 476, 103 S. Ct. 3164, 77 L. Ed. 2d 785 (1983) and United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983) as well as the long honored tradition that grand jury secrecy is not to be lightly abandoned. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). The court also enumerated the reasons behind the secrecy policy and discussed the few and carefully tailored exceptions to the policy of non-disclosure. [ See court's memorandum, pp. 4-7].
In that same memorandum, the court noted that the United States Attorney made what could properly be characterized as a gratuitous proxy motion for disclosure of these documents to the Nuclear Regulatory Commission. At that time we noted that the Nuclear Regulatory Commission was fully cognizant of its rights and duties concerning this matter. We further predicted that if and when the Nuclear Regulatory Commission had a sincere interest in obtaining these documents it would make a proper request. Some five and one-half weeks later, the Nuclear Regulatory Commission decided to move for disclosure.
On May 18, 1984, the Nuclear Regulatory Commission moved for disclosure to them of those portions of the records of the March, 1983 and May, 1980 grand juries which relate to the so-called Hartman allegations. The Nuclear Regulatory Commission asserted that these records are required by it for use in connection with its public health and safety related responsibilities. This motion was opposed by the numerous unnamed individuals who appeared as witnesses before the pertinent grand juries [hereinafter grand jury witnesses]. These grand jury witnesses filed a motion to intervene in this matter. Said motion was not objected to by the United States and was, therefore, granted.
In its motion, the Nuclear Regulatory Commission concedes that, based on current judicial interpretation of the exceptions to secrecy set forth in Rule 6(e), Federal Rules of Criminal Procedure, disclosure of the requested materials would not be authorized (movant's brief at page 2). The Nuclear Regulatory Commission relies for support almost entirely on the language of the Seventh Circuit in In Re Special February, 1975 Grand Jury, 662 F.2d 1232 (7th Cir.1981) aff'd on other grounds sub nom. U.S. v. Baggot, 463 U.S. 476, 103 S. Ct. 3164, 77 L. Ed. 2d 785 (1983). That language is as follows:
The court in rare situations may have some discretion to slip entirely around Rule 6(e) and permit disclosure, but that discretion in any event is strictly limited. (emphasis added)
That court went on to state:
We may not always be bound by a strict and literal interpretation of Rule 6(e) in the situation where there is some extraordinary and compelling need for disclosure in the interest of justice, and little traditional need for secrecy remains. . . . (emphasis added)
In the absence of a clear indication in a statute or rule, Congress and the Court have remained reluctant to authorize any breach of [grand jury] secrecy.
April 10th memorandum at pp. 6-7.
The court's statement was accurate as written but not as interpreted. Congress and the Court should be reluctant to slip around Rule 6(e). That is not to say, however, that such a "slip around" is categorically prohibited. This court believes that, when the limited and special conditions described by the Seventh Circuit above are met, a "slip around" can and should be allowed. This concession, however, does not effect the disposition of the instant motion because, in the opinion of this court, the necessary conditions have not been demonstrated. Those conditions are a particularized showing of an extraordinary and compelling need for disclosure in the ...