This is an appeal from a denial of a petition for disclosure of grand jury materials in a concluded successful antitrust prosecution, as sought by the State Attorney General of Virginia, and the Attorney General of the United States, under the provisions of Section 15f(b), 15 U.S.C. We reverse.

To a federal antitrust indictment, charging the appellee Tidewater (Virginia) Automobile Dealers Association, along with certain members of that Association (also appellees in this proceeding) with engaging in a price-fixing conspiracy in connection with charges for auto body repairs, the defendants-appellees plead nolo contendere. The district court accepted the plea. Under the terms of Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, which was "expressly adopted to create 'an effective mechanism to permit consumers to recover damages for conduct which is prohibited by the Sherman Act, by giving State attorneys general a cause of action (to sue as parens patriae on behalf of the States' citizens) against antitrust violators,' "1 the Attorney General of the United States is required "(w)henever (he) has brought an action under the antitrust laws, and he has reason to believe that any State attorney general would be entitled to bring an action (under this parens patriae authority) based substantially on the same alleged violation of the antitrust laws" to "promptly give written notification thereof to such State attorney general."2 Obedient to this statute the Attorney General of the United States notified the Virginia Attorney General of the successful prosecution of the appellees for a violation of the Sherman Act.

This same Title of the Act further provided that in order "(t)o assist a State attorney general in evaluating the notice (of the federal antitrust action) or in bringing any (parens patriae ) action . . . the Attorney General of the United States shall, upon request of such State attorney general, make available to him, to the extent permitted by law, any investigative files or other materials which are or may be relevant or material to the actual or potential cause of action . . . ."3 The Attorney General of Virginia requested the Attorney General of the United States under this authorization to make available to him "all grand jury materials in the files of the United States Department of Justice which relate to the investigation of possible antitrust violations by automobile body shops in the Tidewater area (of) Virginia" and for access to the bills of particulars filed by the United States in the Sherman Act prosecution. In connection with this request, the Attorney General of Virginia, joined by the Attorney General of the United States, moved the district court, which had had jurisdiction over the federal criminal prosecution herein, for disclosure, subject to appropriate protective clauses, of "all grand jury materials in the files of the United States Department of Justice which relate to the investigation of possible antitrust violations . . . involved in United States v. Colonial Chevrolet Corp., et al., Crim.No. 78-0016N," and for "access to the bill of particulars . . . currently under seal by Order of this Court." Notice of this motion was given the appellees. They entered objections to the motion. After a hearing on the motion, the district court denied the motion; the Attorney General of the United States and the Attorney General of Virginia have appealed.

The point at issue on the motion was the right of the Attorney General to disclose to the Attorney General of Virginia, under the terms of the Hart-Scott-Rodino Act, all the grand jury materials, including the transcript of testimony and the bill of particulars in his possession in connection with or related to the federal antitrust prosecution of the appellees. In denying disclosure the district court held that grand jury transcripts are not "investigative files" within the meaning of that term in the Act and are not, therefore, embraced within the Attorney General's statutory right to disclose but that, if they are "investigative files" under the Act, their disclosure by the Attorney General is allowed only "to the extent permitted by law," i. e., as permitted by Rule 6(e), Fed.R.Crim.P., which, under the decisions applying such Rule, requires a showing of "particularized need" by the party seeking disclosure. It also found that a "particularized need" would not comprehend assisting in actual or potential civil antitrust litigation. Since the purpose of the State Attorney General in seeking disclosure was for the purpose of assisting in potential antitrust litigation, the petitioner Attorney General of Virginia had not shown the necessary "particularized need" required for disclosure, and the application for disclosure was denied.

Though not set forth in this sequence in its opinion, the reasoning by which the district court justified denial of disclosure begins logically with its conclusion that "investigative files," as that term is used in the statute, does not embrace grand jury proceedings.4 We, however, do not agree with this narrow definition of the term "investigative files." In our opinion this construction of the term in the statute is plainly contrary to the legislative purposes of the statute involved. In Title III of the Act the Congress was manifestly seeking to encourage parens patriae suits by State attorneys general in order to "assist" in the public enforcement of the antitrust laws for the benefit of small consumers. To this end it sought to make available for the use of the State Attorney General, to the full extent permitted by law, all the materials developed in the federal investigation of the alleged antitrust violation. The use of grand jury proceedings as an "investigative" instrument in antitrust enforcement is well recognized.5 Often the grand jury investigation is the most important part of the "investigative file" in an antitrust proceeding.6 The assistance which Congress sought to provide by this statute for State attorneys general in maintaining parens patriae antitrust suits would frequently be negligible if the grand jury materials were to be excluded from the "investigative files and materials" which the Attorney General of the United States was authorized to make available to a State attorney general. It is unlikely in the extreme that Congress intended to exclude such materials from the statutory definition of investigative files. We are satisfied that grand jury transcripts in the possession of the Department of Justice fall clearly within the term "investigative files and materials," as used in the statute. And this is the conclusion reached by the only other United States Court of Appeals which has confronted this issue.7

We are mindful that Senator Abourezk, who was handling on the floor the 1976 Act for the Judiciary Committee, did during the final Senate debate on the Act state in reference to the specific provision of the Act with which we are concerned:

"The section specifically limits the Attorney General's power to release documents to whatever his powers are under existing law. Under existing law he cannot turn over materials given in response to a grand jury demand or to a civil investigative demand."8 (Emphasis added)

The district court would read into this language a categorical declaration by the Senate floor leader for the bill that "investigative files," as used in the statute in question, did not include grand jury proceedings. It apparently assumed that "existing law," as referred to by Senator Abourezk, was an absolute bar to the disclosure of grand jury materials. All that Senator Abourezk was saying, however, was that under existing law (i. e., under Rule 6(e) Fed.R.Crim.P.) the Attorney General could not voluntarily turn over such proceedings to the State Attorney General. That statement is perfectly true and the appellants so concede. The disclosure of grand jury proceedings must be authorized by the court, and the circumstances under which they may be disclosed are set forth in detail. We so declared in In re Grand Jury Subpoenas, April, 1978, Etc., (4th Cir. 1978) 581 F.2d 1103, 1108-9, cert. denied, sub nom., Fairchild Industries, Inc. v. Harvey, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). Such is the reason the appellants filed their petition in the district court. But the court "under existing law" may authorize disclosure under the circumstances detailed in Rule 6(e)(3); in fact it has done so in many cases in support of proceedings in both federal and state judicial, and even in state administrative, proceedings.9 The language of Senator Abourezk thus presents no impediment to authorizing disclosure in a proper case meeting the criteria stated in Rule 6(e)(3).

It must be remembered, too, that the language in the Act providing for disclosure originated in the House and not the Senate and that the inclusion of such language in the final enactment was, as Senator Abourezk freely conceded, at the instance of the House conferees.10 The House left no doubt of its intention in including this language in the Act. In explaining the section embracing this language, the House Committee Report said that the section "reflect(ed) the committee's desire that the Federal Government cooperate fully with State antitrust enforcers" and that the language which said that "the Justice Department's investigative files (were to be made) available to the State attorney general 'to the extent permitted by law' " meant that "the files (were) to be made available except where specifically prohibited."11 It is clear from this authoritative statement of the intention of the statute's drafters in the House that only matters, disclosure of which were "specifically (or absolutely) prohibited" were without the term "investigative files" in the statute. We are persuaded that this represents the proper construction of the statute to be followed by us in this decision.

The question thus becomes whether disclosure of grand jury proceedings is "specifically prohibited" by Rule 6(e), Fed.R.Crim.P. In resolving this issue we note at the outset that, as has been often observed, the Rule is not an absolute bar to or prohibition of the disclosure of grand jury proceedings. Special February 1971 Grand Jury v. Conlisk, (7th Cir. 1973) 490 F.2d 894, 896. The drafters of Rule 6(e) recognized that there could be situations in which there would be ample justification for access by other parties to the grand jury transcripts, and the Rule, as finally approved, provided for disclosure under various circumstances, including "when so directed by the court preliminarily to or in connection with a judicial proceeding," found to justify disclosure. Rule 6(e)(2)(C)(i); Douglas Oil Co. v. Petrol Stops Northwest, (1979) 441 U.S. 211, 220, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156. And release for use in state, as well as in federal, judicial, and perhaps administrative, proceedings, has been authorized under this specific exception to the general rule of secrecy accorded grand jury proceedings.12

But the district court, while recognizing that there was authority to grant access under this "preliminarily to . . . judicial proceeding" exception, found that the Supreme Court has established certain strict requirements to be met before the court might authorize disclosure thereunder, and that the petitioners here, the State Attorney General of Virginia, and the Attorney General of the United States, had not satisfied those requirements. It is true that the Supreme Court has, as the district court pointed out, established certain standards to be used by district courts in exercising their discretionary authority to order disclosure under this "preliminarily to . . . judicial proceeding" exception when such disclosure is sought by private parties engaged in private litigation.13 In that context (i. e., in the application of a private litigant or party), it is true that it was the Supreme Court's holding that a party seeking disclosure must meet the burden of demonstrating that "the need for (disclosure) outweighs the public interest in secrecy . . . ."14 To satisfy this burden, the applicant for disclosure had to show a "particularized need,"15 which might not be a need for assistance in maintaining private litigation.16 In evaluating that asserted need as against "the public interest in secrecy," the weight of the need, the Supreme Court concludes, will increase or diminish in proportion as the reasons supporting the public interest in secrecy increase or diminish.17 Thus, where the grand jury proceedings are current, the reasons for secrecy will be overwhelming against the need for disclosure. In re Bonanno, (2d Cir. 1965) 344 F.2d 830, 834.18 Similarly, the public interest and fundamental fairness to the "innocent accused" will operate to deny disclosure where the grand jury has returned a "no bill;"19 in fact, this is stated as one of the basic reasons for the rule of grand jury secrecy. See United States v. Rose, 215 F.2d 628-29. But when the grand jury has completed its work and the criminal proceedings initiated by the grand jury indictment have been concluded, the reasons for secrecy, in the opinion of the Supreme Court, are substantially diminished and correspondingly the requirement of a showing of "particularized need" as a basis for disclosure is diminished. Illinois v. Sarbaugh, 552 F.2d at 774, cited with approval in Douglas Oil, 441 U.S. at 223, 99 S.Ct. at 1675.20

It was on these principles that the district court bottomed its denial of disclosure in this proceeding, finding that the State Attorney General, before he is entitled to disclosure, must show a "particularized need" and that assistance in evaluating or maintaining another legal action such as the State Attorney General contemplates is not such a "particularized need" as is comprehended within the rule as determined in Procter & Gamble and Douglas Oil, supra. But what the district court overlooked was that we are not here concerned with a request for disclosure by a private party interested in private litigation, which was the situation in all the cases relied on by it. The requirements for disclosure, and particularly the showing of a "particularized need" as declared in these private cases are clearly inapplicable here. The applicant for disclosure in this case is the chief law enforcement officer of a State, who has been specifically invested, as a matter of federal public policy as formally expressed in an Act of Congress, with the capacity to maintain a parens patriae federal antitrust suit in aid of the small consumer and, in order to encourage and assist him in such undertaking, the Congress has specifically directed the Attorney General to furnish him (the State Attorney General), to "the full extent permitted by law," all the materials in the former's files "which are or may be relevant or material to the actual or potential" parens patriae cause of action. The State Attorney General has been thus explicitly clothed by the Congress with this power and right because he is given a place adjunct to that of the Attorney General himself, in the scheme of enforcement of the federal antitrust laws, directed especially to protecting the small consumer.21 When Congress has thus explicitly stated the legitimate and proper need of the State Attorney General for the disclosure of such materials, it has resolved the public interests consideration in such a case and, in so doing, it accordingly relieved that official of the requirement of establishing a "particularized need" as a threshold condition to disclosure. And this is the view taken by the only other United States Court of Appeals which has confronted this issue. United States v. Goodrich, supra.

In reaching this conclusion we would not be understood as holding that a State Attorney General has, under the statute, an absolute right to disclosure. We hold only that, first, grand jury materials are "investigative files" within the intent of § 15f(b), 15 U.S.C., and, secondly, that the State Attorney General, in his parens patriae capacity, has been relieved by Congress of the initial burden of showing a "particularized need" as a basis for a grant of disclosure, and that the burden of opposing disclosure in such a situation rests on those who would deny disclosure. Whether the showing by the opponents of disclosure is sufficient in any particular case to deny disclosure remains a matter for the discretion of the district judge, which, however, may not be exercised arbitrarily but only on plainly articulated reasons. Moreover, the district court may, and should, in the interest of fairness to all parties concerned, "include (such) protective limitations on the use of the disclosed materials," as may be appropriate under the peculiar facts of each case. It is interesting that the appellants proposed in this case that any disclosure of the grand jury materials ordered should be subject to reasonable "protective limitations."

Since the district court did not apply the standards above stated for deciding the appellants' motion for disclosure, the cause must be remanded to the district court for reconsideration in the light of the standards for deciding such motion as hereinabove set forth.

REMANDED WITH INSTRUCTIONS.