Full opinion text
OPINION OF THE COURT HUTCHINSON, Circuit Judge. Appellants and cross-appellees Robert J. McDonnell and Frederick N. Rasmussen (collectively “Plaintiffs”) filed this action in the United States District Court for the District of New Jersey against appellees and cross-appellants the Department of the Navy (“Navy”) and the Department of Justice (“DOJ”) in its capacity as representative of the Federal Bureau of Investigation (“FBI”) (collectively the “Government”). Plaintiffs seek disclosure under the Freedom of Information Act (“FOIA”), 5 U.S.C.A. § 552 (West 1977 & Supp.1993), of certain information the Government has withheld concerning the 1934 Morro Castle disaster. The Morro Castle disaster occurred when a fire broke out on an ocean liner just off the coast of New Jersey on September 8, 1934. See United States v. Abbott, 89 F.2d 166, 166 (2d Cir.1937). Over one hundred deaths resulted. Strange circumstances surrounded the fire. Just hours prior to the fire the Captain of the ship died, and there was a delay of almost an hour between the outbreak of the fire and the sending of an SOS signal. See id (overturning conviction of chief officer and engineer of ship for criminal negligence in operation of vessel); see generally Thomas Gallagher, Fire At Sea (1959) (concluding that fire on Morro Castle was deliberately set by ship’s radio officer). Both Plaintiffs and the Government filed cro.ss-motions for summary judgment. The district court granted each and denied each in part. All parties now appeal the portions of the district court’s judgment adverse to their respective positions. For the reasons that follow, we will affirm the order of the district court granting summary judgment to the Government under FOIA Exemptions 1 (matters relating to national security), 7(C) (records compiled for law enforcement purposes, disclosure of which would constitute an unwarranted invasion of personal privacy), and 7(D) (disclosure of identity of confidential sources or information they provide). 5 U.S.C.A. § 552(B)(1), (7)(C), (7)(D). We will also affirm the district court’s order granting summary judgment to the Government under Exemption 3 (matters specifically exempted from disclosure by statute) insofar as it permits the Government to withhold grand jury material, but we will reverse that order insofar as it permits the Government to withhold certain juvenile delinquency records requested by McDonnell. Id. § 552(b)(3). We will vacate the portion of the district court’s order granting summary judgment to the Government under Exemption 6 and remand for further factual development. We will also vacate the district court’s order granting summary judgment to McDonnell under Exemption 7(D) and remand for reconsideration in light of United States Dep’t of Justice v. Landano, - U.S. -, ---, 113 S.Ct. 2014, 2019-23, 124 L.Ed.2d 84 (1993). Finally, we will reverse the order of the district court granting summary judgment to McDonnell under Exemption 7(C). I. Factual and Procedural History Plaintiffs are authors who are interested in the events surrounding the fire aboard the ocean liner Morro Castle and its subsequent grounding off the coast of Asbury Park, New Jersey on September 8,1934. The FBI conducted an investigation following this disaster under the special maritime jurisdiction of the United States, 18 U.S.C.A. §§ 7, 13 (West 1969 & Supp.1993), in order to determine the cause of the fire and why so many lives were lost. A federal grand jury ultimately returned indictments against the owners and certain officers of the Morro Castle, charging them with willful neglect of duty under 18 U.S.C.A. § 1115 (West 1984). See United States v. Abbott, 89 F.2d 166 (2d Cir.1937) (overturning conviction of chief officer and engineer for violation of statute). In June 1985, Plaintiffs began their quest for information regarding the Morro Castle fire and its subsequent investigation. In their first correspondence with the Office of Congressional and Public Affairs, dated June 14, 1985, Plaintiffs requested, under the FOIA, records pertaining to the Morro Castle, George White Rogers, George Alagna, and the “Black Tom” explosion. On July 29, 1985, Plaintiffs expanded their original request to include John B. Duffy. On March 24,1986, the FBI released 666 of 1,029 pages regarding the Morro Castle and specified the exemptions claimed for the withheld documents. On March 31, 1986, Plaintiffs appealed the FBI’s refusal to release the withheld documents. The FBI released additional documents regarding the Morro Castle on May 21, 1986. On June 3, 1986, it released documents concerning George White Rogers. On July 14, 1986, the Office of Information and Privacy (“OIP”) advised Plaintiffs some additional records pertaining to deceased individuals in the Morro Castle file would be released, but the FBI’s decision to withhold the remainder of the requested documents would be affirmed. On August 18,1986, Plaintiffs appealed the FBI’s withholding of the remaining records containing information about George White Rogers. The OIP denied this appeal on October 9, 1986, and also informed Plaintiffs that the FBI would not release information regarding George Alagna until it received evidence of his death. In the course of processing Plaintiffs’ original June 1985 request, the FBI located three Navy documents. It sent two of these documents to the Naval Military Personnel Command (“NMPC”) and the third to the Naval Investigative Service Command (“NISCOM”) for evaluation. Lieutenant Commander Brian D. Robertson of the Judge Advocate General’s Corps (“JAG Corps”) reviewed the two documents sent to NMPC and determined that one document could be released in its entirety. Robertson included an unredacted copy of this document with a letter to Plaintiffs dated June 9, 1986, notifying them that the NMPC had received two documents from the FBI that were responsive to Plaintiffs’ original FOIA request. This letter also advised Plaintiffs that Robertson had sent the second document to the Office of Naval Intelligence for classification review. After examining the document, the Deputy Director of Naval Intelligence advised NMPC that it was no longer classified. The second document was accordingly released to Plaintiffs in its entirety. NISCOM reviewed the third document and ultimately released it to Plaintiffs with deletions made pursuant to 5 U.S.C.A. § 552(b)(7)(C) (West 1977 & Supp.1993). Plaintiffs appealed this decision to the Secretary of the Navy on August 25, 1986. This appeal was denied. Approximately one year later, Plaintiffs filed a separate request for information on George White Rogers, John B. Duffy, Admiral W.F. Halsey, and other matters directly with NISCOM. NISCOM’s search for this information disclosed no relevant documents or files. Because Plaintiffs did not ask NIS-COM to forward them request to other divisions of the Department of Navy, no further search was conducted. On August 22, 1988, Plaintiffs filed a complaint in federal district court seeking disclosure under the FOIA of the requested information withheld by the Government. Plaintiffs sought preliminary and permanent injunctions ordering the disclosure of the following information: 1. The Navy records of George White Rogers. 2. The Navy records concerning “the outcome of the [Oscar] Niger investigation.” 3. Information pertaining to Oscar Niger. 4. A threatening letter allegedly written by George White Rogers to Admiral Halsey. 5. Information withheld by the FBI pertaining to the Morro Castle, George Alag-na, John B. Duffy, and the “Black Tom” file. Plaintiffs also requested legible copies of all released documents, and that the court perform an in camera inspection of the withheld and redacted documents in order to ascertain the propriety of nondisclosure based on the specific exemptions asserted by the Government. The Government filed an answer on November 4, 1988, generally denying Plaintiffs’ claims and raising various defenses. In January 1989, Plaintiffs filed a motion for in camera inspection of the documents sought in the complaint. The Government responded that the motion was premature because it had not yet submitted its Vaughn index specifying the withheld documents and detailing the agency’s justification for claiming exemption. See Patterson by Patterson v. FBI, 893 F.2d 595, 599 n. 7 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974)). For this reason, the magistrate judge denied Plaintiffs’ motion without prejudice. On March 13, 1989, the Government filed its Vaughn index. It included the following proffers in support of the withheld documents: (1) the declaration of FBI Special Agent (“SA”) William Earl Whaley regarding the material withheld pursuant to FOIA Exemption 1, 5 U.S.C.A. § 552(b)(1) (West 1977); (2) the declaration of FBI SA Angus Llewellyn regarding the material withheld pursuant to FOIA Exemptions 1, 2, 3, 6, 7(C), 7(D), and 7(E), 5 U.S.C.A. §§ 1, 2, 3, 6, 7(C)-(E) (West 1977 & Supp.1993); (3) the declaration of Lieutenant Commander Robertson regarding the two documents forwarded by the FBI to the NMPC; and (4) two affidavits by Jacqueline D. Marini, Assistant Information and Privacy Coordinator, NIS-COM, regarding the document forwarded by the FBI to NISCOM. On July 25, 1989, plaintiff McDonnell filed his own affidavit in response. On August 31, 1989, Plaintiffs moved for summary judgment and renewed their motion for an in camera review of the withheld and redacted documents. On October 26, 1989, the Government filed a cross-motion for summary judgment on grounds that in searching for the documents Plaintiffs requested it had done all that was reasonable, and that it had properly withheld the redacted and undisclosed information pursuant to the specified FOIA exemptions. The Government also filed the Second Declaration of SA Llewellyn at this time. Oral argument on the motions took place on July 16, 1990 in United States Magistrate’s Court. At the magistrate judge’s direction, the Government also furnished for in camera inspection all materials produced to the grand jury investigating the Morro Castle and its crew, accompanied by an ex parte declaration of SA Llewellyn concerning the materials produced. On June 7,1991, the magistrate judge filed a Report and Recommendation concluding, inter alia, that: (1) plaintiff Rasmussen lacked standing to sue because he never signed a FOIA request; (2) plaintiff McDonnell’s requests for certain documents were either moot or premature, and he was not entitled to better copies of certain documents produced by the FBI; (3) the Government’s withholding of certain documents under FOIA Exemptions 1, 3, and 6 was proper; and (4) the Government’s withholding of certain documents under FOIA Exemptions 7(C) and (D) was proper, with the exception of documents relating to (a) the identities of any persons who the Government determined were deceased, (b) the identities of witnesses and other third parties whom the FBI had interviewed in connection with its investigations, and (c) sources of information who the magistrate judge found had received neither express nor implied assurances of confidentiality at the time of their interviews. The magistrate judge accordingly recommended that both Plaintiffs’ and the Government’s motions be granted in part and denied in part, thereby resolving “[t]he entire case.” Both parties filed written objections. The district court adopted the Report and Recommendation “in its entirety” by order entered on September 11,1991. Both Plaintiffs and the Government filed timely notices of appeal from that order. II. Preliminary Issues: Jurisdiction & Standing A. Finality of the District Court’s Order The district court exercised subject matter jurisdiction pursuant to 5 U.S.C.A. § 552(a)(4)(B) (West 1977) and 28 U.S.C.A. § 1331 (West 1992). At the threshold, we must decide whether the district court’s order granting partial summary judgment to both parties is a final appealable order within the meaning of 28 U.S.C.A. § 1291 (West Supp.1993). The Government asserts that even if this order is not final, the portion ordering the Government to release certain withheld materials is an appealable injunction under 28 U.S.C.A. § 1292(a)(1) (West 1992). Section 1291 confers on the courts of appeals “jurisdiction of appeals from all final decisions of the district courts of the United States____” The magistrate judge recommended granting summary judgment to the Government on all but three issues, on which it recommended granting summary judgment to Plaintiffs: (1) The withholding pursuant to Exemption 7(C) of the identity of witnesses and third parties interviewed in connection with the Morro Castle disaster; (2) the withholding pursuant to Exemption 7(C) of information regarding deceased persons to which no other exemption applies; and (3) the withholding pursuant to Exemption (7)(D) of information claimed to have been provided under implied assurances of confidentiality to which no other exemption applies. The district court adopted the Report and Recommendation in its entirety. The Report and Recommendation disposes of all substantive issues raised by the parties. The docket sheet does not reflect any pending motions in the district court. Plaintiffs’ letter response to this Court’s inquiry on the question of jurisdiction seems to indicate, however, that there is an outstanding motion for attorneys’ fees: The above request [to certify the district court’s judgment as final] is made on the assumption that Motions for attorney’s fees need not be resolved first in the Third Circuit; particularly where appeals are contemplated in any event. If the assumption is incorrect, then all issues are not resolved. Letter dated Dec. 2, 1991 from Joseph Hill-man, Jr. to Bradford A. Baldus, Esq., ¶2, Motion Appendix, Exh. 9. Even if a motion for attorneys’ fees is still pending in the district court, that motion does not constitute a bar to our exercise of jurisdiction under § 1291. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198-202, 108 S.Ct. 1717, 1719-22, 100 L.Ed.2d 178 (1988) (decision on merits is final and therefore immediately appealable for purposes of § 1291 despite unresolved petition for attorney fees); Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 644 (3d Cir.1982) (in banc) (orders finally disposing of merits are appealable even though questions relating to attorneys’ fees have been left undetermined) cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984). Because we have jurisdiction over this appeal under § 1291, we need not reach the Government’s alternative argument that we may treat the district court’s order requiring production of materials withheld under Exemptions (7)(C) and (D) as an appealable injunction under 28 U.S.C.A. § 1292(a)(1). B. Standing of Plaintiff Rasmussen A second preliminary issue concerns Rasmussen’s standing to pursue this appeal under the FOIA. Although his interest was asserted, Rasmussen’s signature does not appear on any of the FOIA requests, and he, himself, did not formally pursue administrative remedies upon the denial of these requests. The district court accepted the magistrate judge’s recommendation that it hold Rasmussen lacks standing to sue in the present case because he failed to make any administrative request of his own for the information he and McDonnell now seek. Rasmussen first argues that he has standing under the plain language of the FOIA, which requires agencies to make records and information available “to any person,” 5 U.S.C.A. § 552(a)(3) (West 1977), and does not prohibit one requester from acting on behalf of others nor require each member of a group interested in the information to sign a request. Rasmussen reads § 552(a)(3) too literally. An agency’s duty to make records available to “any person” under that section is not absolute. Instead, § 552(a)(3) conditions the agency’s duty upon receipt of a request that is made in accordance with published rules stating the time, place, fees, and procedures to be followed and that reasonably describes the records sought. 5 U.S.C.A. § 552(a)(3)(A)-(B); see 28 C.F.R. § 16.1(b)(5) (1992) (defining “requester” as any person who makes request to component of DOJ); id. § 16.1(b)(4) (defining “request” as any request for records made pursuant to 5 U.S.C.A. § 552(a)(3)); id. § 16.3 (delineating requirements for FOIA requests submitted to DOJ); 32 C.F.R. § 701.7 (1992) (outlining requirements for FOIA requests submitted to Navy). Upon receipt of such a request, the agency must determine within ten days whether it will comply with the request “and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.” 5 U.S.C.A. § 552(a)(6)(A)(i) (West 1977) (emphasis added); accord 32 C.F.R. § 701.7(a) (1992). The requesting individual must appeal an adverse determination to the head of the agency before filing suit in federal court. 5 U.S.C.A. § 552(a)(4), (6)(A)(ii); see Dettman v. Department of Justice, 802 F.2d 1472, 1476-77 (D.C.Cir.1986) (FOIA lawsuit subject to dismissal for lack of subject matter jurisdiction if plaintiff fails to timely exhaust administrative remedies); accord Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1423 (9th Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); Brumley v. Department of Labor, 767 F.2d 444, 445 (8th Cir.1985); see also Oglesby v. Department of Army, 920 F.2d 57, 61-65 (D.C.Cir.1990). We think a person whose name does not appear on a request for records has not made a formal request for documents within the meaning of the statute. Such a person, regardless of his or- her personal interest in disclosure of the requested documents, has no right to receive either the documents, e.g., 32 C.F.R. § 701.7(c)(l)-(3) (1992), or notice of an agency decision to withhold the documents, see id. § 701.7(a); 5 U.S.C.A. § 552(a)(6)(A). Rasmussen essentially concedes this point. See Reply Brief for Plaintiffs at 8 (acknowledging that § 701.7 establishes procedures for requesting records from Navy under FOIA, “imply[ing] that the identity of the requester or requesters be disclosed so that the Navy can reply to the request”). Accordingly, a person like Rasmussen whose name does not appear on a FOIA request for records may not sue in district court when the agency refuses to release requested documents because he has not administratively asserted a right to receive them in the first place. . The legislative history of § 552 supports this conclusion. House Report No. 1497 rejected “the negative approach of the present law (5 U.S.C. § 1002) which permits only persons properly and directly concerned to have access to official records” and heralded the FOIA as “establish[ing] the basic principle of a public records law by making the records available to any person.” H.R Rep. No. 1497, 89th Cong.2d Sess., reprinted in 1966 U.S.C.C.A.N. 2418, 2426. This language means that any person who submits a request may obtain access to governmental records regardless of whether they have a personal stake in the information sought. The following language in the cited section of the House Report is illustrative: The persons requesting records must provide a reasonable description enabling Government employees to locate the requested material____ ____ If a request for information is denied by an agency subordinate the person making the request is entitled to prompt review by the head of the agency. An aggrieved person is given the right to file an action in the district where he resides or has his principal place of business, or where the agency records are situated. H.R.Rep. No. 1497, reprinted in 1966 U.S.C.C.A.N. at 2426. (emphasis added). This statement reflects Congress’s intent to identify the person making the request with the person-aggrieved when a request is denied. Rasmussen, however, points to the legislative history of the 1974 amendments to the FOIA. See H.R.Rep. 93-876, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. at 6267. In its letter included in the Appendix to the House bill, DOJ voiced its objections to the proposed amendment awarding attorneys’ fees to successful plaintiffs under the FOIA, stating that an award of attorneys’ fees is “particularly inappropriate” “in a type of litigation which can be initiated by anyone without the customary legal requirements of standing or interest or injury.” H.R.Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6280. Rasmussen would have us treat this isolated sentence as a concession by the Government that he need not have signed a FOIA request in order to have standing as a plaintiff in the present action. Rasmussen’s argument is without merit. The fact that Congress ultimately passed the amendment providing for an award of attorneys’ fees could alone be interpreted as an implicit rejection of DOJ’s premise that the FOIA has, no standing requirements. See H.R.Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6272 (award of attorneys’ fees to. prevailing FOIA plaintiff desirable when suit advances strong.congressional policy); see also -5 U.S.C.A. §■ 552(a)(4)(E) (West 1977) (court may assess against United States reasonable attorney fees and other litigation costs reasonably incurred where FOIA complainant has “substantially, prevailed”). Moreover,.as discussed above, other portions of the legislative history of § 552 indicate that a person must have submitted a formal request under the FOIA in order to challenge an agency’s decision not to release the requested documents. . Precedent lends additional support to this requirement. The FOIA “is fundamentally designed to inform the public about agency action....” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 144 n. 10, 95 S.Ct. 1504, 1513 n. 10, 44 L.Ed.2d 29 (1975) (citations omitted). A person seeking information under the FOIA therefore need not have a personal stake in the information sought. Rather, the FOIA creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied. 5 U.S.C. § 552(a)(3). The statute requires nothing more than a request and the denial of that request as a predicate to a suit in-the district court. United States v. Richardson, 418 U.S. 166, 204, 94 S.Ct. 2940, 2960, 41 L.Ed.2d 678 (1974) (Stewart, J., dissenting). A “case or controversy” conferring standing arises only when a person makes a request for information under the FOIA and the petitioned agency denies that request. See id. at 171, 94 S.Ct. at 2943 (Burger, C.J., majority) (judicial power may be exercised only in case properly before court, i.e., “case or controversy” not suffering limitations' of political question doctrine, mootness, or calling for advisory opinion) (citing Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803)). . “[A] ‘fundamental aspect of standing’ is that it focuses primarily on the party seeking to get his complaint before the federal court rather than ‘on the issues he wishes to have adjudicated.’” Id., 418 U.S. at 174, 94 S.Ct. at 2945 (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968)). The filing of a request, and its denial, is the factor that distinguishes the harm suffered by the plaintiff in an FOIA case from the harm incurred by the general public arising from deprivation of the potential benefits accruing from the information sought. See id., 418 U.S. at 172, 94 S.Ct. at 2944 (party raising constitutional challenge to statute must show not only invalidity but also that he has sustained or is immediately in danger of sustaining direct injury as result of its enforcement, not merely that he suffers in some indefinite way in common with people generally) (quoting Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923)); Rushforth v. Council of Economic Advisors, 762 F.2d 1038, 1039 n. 3 (D.C.Cir.1985) (standing lies as general matter where request is submitted under FOIA for existing documents). In the present case, McDonnell’s name alone appears on the requests for records submitted to the FBI and the Navy. Hé alone pursued the administrative appeals of those agencies’ decisions not to release the requested information, the exhaustion of which was a prerequisite to the district court’s exercise of subject matter jurisdiction. Accordingly, only McDonnell has standing to pursue this case. Apparently as an equitable matter, Rasmussen also urges that it is imperative he not be dismissed because, if McDonnell should die, the lawsuit would be terminated and the public’s right to information about the Morro Castle disaster would be irreparably harmed. The abstract interest of either Rasmussen or the public in the Morro Castle disaster does not change the fact that Rasmussen did not actually make any of the requests which form the basis of this lawsuit. See Sears, 421 U.S. at 144 n. 10, 95 S.Ct. at 1513 n. 10 (that requester claims interest in information sought greater than that shared by average member of .public neither increases nor decreases rights to access). The district court therefore correctly determined that Rasmussen lacked standing to sue. Therefore, in our discussion of the merits of the issues, we will refer to plaintiff McDonnell only. C. Exhaustion of Administrative Remedies The third and final preliminary issue we must consider is whether McDonnell’s action should have been barred for failure to exhaust administrative remedies. McDonnell maintains that he was not required to file an administrative appeal from the Government’s failure to respond to those requests before commencing this lawsuit in federal court. Therefore, McDonnell argues that subject matter jurisdiction automatically vested when the Government missed the statutory deadline for responding to his request for certain classes of information. Before addressing the extent, if at all, that McDonnell’s action may be barred by the exhaustion requirement, it is necessary to classify the various categories of information with which we are concerned. McDonnell originally requested information regarding four classes of information: the Black Tom explosion, George Alagna, John B. Duffy, and .Oscar Niger. The magistrate judge determined that McDonnell’s request for information on the Black Tom explosion was moot because he had not included it in his Supplemental Certification listing all information still sought from the Government. The magistrate judge also noted that at oral argument McDonnell’s only response to the Government’s assertion that he had failed to exhaust his administrative remedies with regard to Alagna and Duffy was to ask the court to order that any and all information regarding those individuals not be destroyed. On this basis, the magistrate judge concluded that McDonnell had conceded that he had not exhausted his administrative remedies regarding information on Duffy and Alagna. McDonnell does not specifically appeal from these decisions, although he does characterize the exhaustion issue as involving “the FOIA request for information on Oscar Niger and others ..■..” Brief for Plaintiffs at 17. He also argues that “the inappropriate ‘mooting’ of issues to arrive at Summary Judgment should be discouraged. If the record does not support Summary Judgment, the case should be set down for trial.” Id. at 22. McDonnell fails, however, to indicate by reference to the record how summary judgment is precluded other than by his argument that the Navy’s assertion that the requested .Rogers/Halsey letter was “not found” is ambiguous. The magistrate judge’s ruling of failure to exhaust administrative remedies did not extend to information regarding either Rogers or Halsey. It appears, therefore, that this issue affects only McDonnell’s request for documents regarding Niger. McDonnell had requested information about Niger from , the FBI on February 2, 1988. On March 1, 1988 the FBI asked McDonnell to furnish “identifying data” and proof of death regarding Niger. On June 28, 1988, the FBI informed McDonnell that his request concerning Niger had been placed in “closed” status because he had not supplied the' necessary information. McDonnell filed an administrative appeal from the closing of the file, which DOJ acknowledged it received on July 21, 1988. DOJ affirmed the FBI’s closing of the file on March 8, 1989. Almost one year later, on February 20, 1990, McDonnell, supplied the necessary identifying data and proof of death to the United States Attorney’s Office in Trenton, New Jersey. The FBI treated this action as reviving McDonnell’s original request and ultimately produced some, but not all, of the requested information. McDonnell did not file an administrative appeal from this action. Rather, in a letter dated October 22,1990, he made an informal request to the magistrate judge for leave to supplement the record to add to his FOIA complaint the Niger files the FBI had refused to produce. The magistrate judge treated this letter as a motion to amend the complaint and denied it on the ground that McDonnell had failed to exhaust his administrative remedies by not filing an administrative appeal from the FBI’s refusal to produce all of the Niger files. McDonnell appeals from this refusal, arguing that subject matter jurisdiction automatically vested when the FBI failed timely to respond to his initial request for information about Niger on February 2,1988. Central to this argument is 5 U.S.C.A. § 552(a)(6)(A). Subsection (A)(i) of that statute provides that the agency to which an FOIA request has been submitted must notify the person making the request whether it will comply within ten days after receiving the request. Subsection (A)(ii) imposes a similar twenty-day time limit for the agency to respond after the receipt of an administrative appeal. § 552(a)(6)(A)(ii). Subsection (C) provides that a person making a request shall be deemed to have exhausted his administrative remedies if the agency fails to comply with either deadline. § 552(a)(6)(C). It is beyond dispute that the FBI did not comply with the ten-day time limit under § 552(a)(6)(A)© after McDonnell’s initial request for the Niger documents: McDonnell filed that request on February 2, 1988, but the FBI did not respond until March 1,1988, nearly thirty days later. McDonnell thus argues that “[¡jurisdiction is vested in the Court by the passing of the statutory deadline; and need only be invoked by the filing of a complaint____ Nowhere in any authority can plaintiff find any support of the idea that the government can destroy the jurisdiction of the Court by closing its file.” Brief for Plaintiffs, at 18-19. The Government responds that McDonnell may not rely on the “automatic” jurisdiction provision of subsection (C) because instead of filing his complaint immediately after the expiration of the ten-day deadline, he waited until after the Government produced at least some of the documents he requested. The United States Court of Appeals for the District of Columbia Circuit squarely addressed this issue in Oglesby v. Department of Army, 920 F.2d 57 (D.C.Cir.1990). It initially noted that the FOIA requires exhaustion of the administrative appeals process before an individual may seek relief in the district court. Id. at 61 (citations omitted). Nevertheless, § 552(a)(6)(C) permits a requester to file a lawsuit when ten days have passed without a reply from the agency indicating that it is responding to his request, but [] this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies. Thus, if the agency responds to a FOIA request before the requester files suit, the ten-day constructive exhaustion provision ... no longer applies; actual exhaustion of administrative remedies is required. Id. Thus, if McDonnell had taken no further action after filing this lawsuit in August 1988, his appeal of DOJ’s determination upholding the FBI’s closing of the Niger file would properly be before this Court. McDonnell, however, revived his request in February 1990 by submitting the necessary information. Whether the FBI timely responded to this request is irrelevant because, even assuming that it failed to do so, McDonnell did not move to amend his complaint to include an appeal from this failure until after the FBI had in fact responded. Under Oglesby, once the FBI had responded, McDonnell once again became obligated to pursue his administrative remedies. At ho time after he revived his request did McDonnell file an administrative appeal from the withholding of portions of the Niger documents. Therefore, the district court correctly declined to exercise subject matter jurisdiction over McDonnell’s FOIA claim regarding the Government’s withholding of certain portions of those documents. Additionally, McDonnell argues that To the extent that the Rules and Regulations of the defendant agencies require plaintiff to take an administrative appeal from an initial denial, or require plaintiff to do more than make an initial valid .request for information to begin the running of the statutory time limits; such Rules and Regulations should be determined to be invalid as beyond the reasonable scope of statutory authority provided in 5 USC 552(a)(4). Brief for Plaintiffs at 19. McDonnell does not elaborate further on this argument. “Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d at 61 (citation omitted). “Allowing a FOIA requester to proceed immediately to court to challenge an agency’s initial response would cut off the agency’s power to correct or rethink initial misjudgments or errors.” Id. at 64. For these reasons, we decline to rule that the requirements embodied in § 552(a)(6) are unreasonable. III. Discussion Having disposed of all preliminary issues, we turn at last to the merits. In a FOIA case, the district court reviews all agency exemptions de novo. 5 U.S.C.A. § 552(a)(4)(B) (West 1977). The burden is on the agency to justify its decision to withhold the requested material. Id. The agency may meet this burden by filing affidavits describing the material withheld and detailing why it fits within the claimed exemption. King v. Department of Justice, 830 F.2d 210, 217-18 (D.C.Cir.1987). As the United States Court of Appeals for the District of Columbia Circuit has aptly observed, The significance of agency affidavits in a FOIA case cannot be underestimated. As, ordinarily, the agency alone possesses knowledge of the precise content of documents withheld, the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected. As we observed in Vaughn v. Rosen, “[tjhis lack of knowledge by the party seeing [sic ] disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution,” with the result that “[a]n appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a lower court’s factual determination.” Even should the court undertake in camera inspection of the material — an unwieldy process where hundreds or thousands of pages are in dispute — “[t]he scope of the inquiry will not have been focused by the adverse parties____” Affidavits submitted by a governmental agency in justification for its exemption claims must therefore strive to correct, however imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation. The detailed public index which in Vaughn we required of withholding agencies is inténded to do just that: “to permit adequate adversary testing of the agency’s claimed right to an exemption,” and enable “the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render the District Court’s decision capable of meaningful review on appeal.” Thus, when an agency seeks to withhold information, it must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Id. at 218-19 (footnotes omitted). Because the opposing party (generally the requester) does not ordinarily have the factual information upon which the moving party (generally the agency) has relied, summary judgment in an FOIA case “takes on a unique configuration.” Lame v. Department of Justice, 767 F.2d 66, 70 (3d Cir.1985) (“Lame II ”). As a result, the familiar standard of appellate review promulgated by Federal Rule of Civil Procedure 56(c) does not apply. Instead, a two-tiered test governs this Court’s review of an order granting summary judgment in proceedings seeking disclosure under the FOIA. The reviewing court must first decide whether the district court had an adequate factual basis for its determination. Patterson by Patterson v. FBI, 893 F.2d 595, 600 (3d Cir.), cert. denied 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). (citations omitted) Stated differently, the appellate court is to determine, from inspection of the agency affidavits submitted, whether the agency’s explanation was full and specific enough to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation- to review, the soundness of the withholding. King, 830 F.2d at 217-18. If this Court concludes that the affidavits presented a sufficient factual basis for the district court’s determination, it must then decide whether that determination was clearly erroneous. Patterson, 893 F.2d at 600 (citations omitted); see King, 830 F.2d at 218 (clearly erroneous standard governs evaluation of substance of district court’s decision once appellate court satisfied that affidavits provided adequate factual basis for decision) (citations omitted). Under the clearly erroneous standard, this Court “may reverse only if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence.” Lame II, 767 F.2d at 70 (citing Fed.R.Civ.P. 52(a)). -The two-tier standard of review of the district court’s determination that a particular document is or is not properly subject to exemption does not, of course, preclude plenary review of issues of law. See id. at 69 (function of appellate court is to determine whether permissible findings sustain judgment as matter of law). Keeping this standard in mind, we turn to the issues presented on the merits. A. Exemption 1 — National Security Exemption 1 is commonly referred to as the National Security Exemption. It protects from disclosure matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and are in fact properly classified pursuant to. such Executive Order. 5 U.S.C.A. § 552(b)(1) (West 1977). The parties agree that Executive Order 12,356, 47 Fed.Reg. 14874 (1982), controls in this case. That Order “prescribes a uniform system for classifying, declassifying, and safeguarding national security information.” Id. The Order recognizes the tension between the people’s interest in being informed about governmental activities with the countervailing interest of the United States and its citizens in preventing unauthorized disclosure of certain information concerning national defense and foreign relations. Id. It seeks to balance these competing interests by requiring “[information [ ] not be classified under this Order unless its disclosure reasonably could be expected to cause damage to the national security.” Id; see United States Student Assoc. v. Central Intelligence Agency, 620 F.Supp. 565, 568-69 (D.D.C.1985) (court must determine whether agency has withheld information properly pursuant to National Security Exemption). The standard for determining whether an agency properly withheld documents under Exemption 1 is somewhat different from that applied to documents withheld under other FOIA exemptions: Because “ ‘[executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure,’ ”... courts are required to “ ‘accord substantial weight to an agency’s affidavit concerning the details of the classified status of a disputed record.’ ” Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982) (quoting S.Rep. No. 1200, 93d Cong.2d Sess. 12 (1974), U.S.Code Cong. & Admin.News (1974) pp. 6267, 6290). American Friends Serv. Comm. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987) (citing Abbotts v. Nuclear Regulatory Comm., 766 F.2d 604, 606 (D.C.Cir.1985)). For these reasons, an agency is entitled to summary judgment if its affidavits (1) “describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exception,” id. at 444 (quoting Salisbury, 690 F.2d at 970), and (2) “are not- controverted by either contrary evidence in the record or evidence of agency bad faith.” . Id. (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)); The Government bears the burden of demonstrating “that the withheld material is under the purview pf an Executive Order and has been properly classified pursuant to such order.” Patterson v. FBI, 705 F.Supp. 1033, 1039 (D.N.J.1989), aff'd 893 F.2d 595 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). 1. Documents Relating to Cryptographic Systems McDonnell argues that the district court erred in granting summary judgment to the FBI on its claim-that it was entitled to withhold five documents from production under Exemption 1 because they relate to FBI cryptographic systems. But See Exec. Order 12,356, 47 Fed.Reg. 14874 § 1.3(a)(8) (1982) (establishing that information shall be considered for classification if it concerns cryptology). In support of , this claim, the FBI supplied the Whaley Declaration, which describes the substance of the redacted documents as follows: [T]he portions marked for classification contain information of the type identified by the Executive Order as being subject to classification. Release of this information could reasonably be expected to cause damage to the national security____ Specific dates and words or comments relating to cryptographic material, that could help pinpoint exact areas of vulnerability, have been deleted to protect bureau code systems in use during a specific time frame. App. at 81. The Declaration also describes the nexus between the disclosure of this information and the asserted damage to national security: The basic concern is whether a hostile entity having access to both the plaintext and ciphertext versions of a Bureau message would have the capability to decrypt other messages enciphered with the same cryptographic key. If as described above, a hostile entity achieves the capability to decrypt messages enciphered with the same cryptographic key in a certain time frame, then all FBI classified information within that time frame,, regardless of its nature, is susceptible to disclosure to the detriment of national security. Id. at 82. The district court relied on these portions of the Whaley Declaration to establish the description of the withheld information and its nexus to national security as required by American Friends. After determining that McDonnell had introduced insufficient evidence to rebut this nexus, the magistrate judge recommended granting the FBI’s motion for summary judgment, under Exemption 1- and' the district court accepted this recommendation. McDonnell concedes that the material requested was properly classified as exempt in 1934. He nevertheless argues that it is no longer entitled to such status because of the passage of time. See, e.g., 28 C.F.R. § 17.6 ' (1992) (precluding classification for any longer than necessary for national security interests). Thus, he argues that the Government should justify factually how national security interests will be affected by divulgenee of the withheld information. The Government’s response to this argument is that it is concerned not so much with maintaining the secrecy of the underlying message that the code conceals, but instead with maintaining the secrecy of the cryptology itself. As the Whaley Declaration stated, the Government’s purpose in withholding this information is to preclude study of the FBI’s cryptographic systems by any hostile person or entity. The Government elaborated on this statement at oral argument, explaining that divulgenee of coded documents could enable hostile, entities to interpret other, more- sensitive documents similarly encoded. See Keys v. Department of Justice, 830 F.2d 337, 348 (D.C.Cir.1987) (mere passage of time does not remove justifications for classification). Given, the “substantial weight” courts are instructed to give an agency’s affidavit concerning details of the classified status of disputed records, see 'American Friends Serv. Comm. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987), the district court did not err in upholding the Government’s refusal to release the five documents at issue under Exemption 1. 2. Request for Translated Copies of Encoded Documents As a corollary argument, McDonnell asserts that the district court erred in refusing to order the Government to provide translated copies of the coded material to him at his own expense. Though it is true that cryptology is subject to classification under Exemption 1, he asserts this does not mean that anything coded is exempt. Therefore, he asks the Government to translate anything in code that would otherwise be available if not encoded. The Government resists, arguing that the translation of the requested material, if not exempt, would require the creation of a new record, and that an agency is not required to create records in order to respond to FOIA requests. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162, 95 S.Ct. 1504, 1522, 44 L.Ed.2d 29 (1975). Because there is .a procedure for periodic review of cryptologic information, see, e.g., Exec.Order 12,356, 47 Fed. Reg. 14874 § 1.4 (1982) (regarding duration of classification), McDonnell responds that the Government would have had to translate the coded information at some time to determine whether it was still subject to classification. Accordingly, he argues, the Government would not be required to create any new documents other than those it would have to create in 'any event. We recognize the principle that an agency is not required to create records in order to respond to FOIA requests. Sears, 421 U.S. at 162, 95 S.Ct. at 1522; Yeager v. DEA 678 F.2d 315, 321-23 (D.C.Cir.1982); Krohn v. Department of Justice, 628 F.2d 195, 197-98 (D.C.Cir.1980). Nevertheless, we are not persuaded that translation of existing documents would be tantamount to imposing on the Government the burden of creating records. Moreover, as McDonnell points out, the requested document may already exist in translated form, in which case the only burden on the Government would be one of production. Despite these observations, the same national security concerns that are material to disclosing coded documents would come into play were the Government required to disclose translated copies of those documents. As discussed above, the Government wishes to withhold this information in order to preclude study of the FBI’s cryptographic systems by a hostile entity. If the Government released translated copies of documents already in the possession of a hostile person or entity, the translation could provide a key to interpretation of other, more sensitive documents similarly encoded. Indeed, it might serve this purpose better than production of the coded documents themselves would. The district court did not err in refusing to compel the Government to produce translated copies of the documents it withheld under Exemption 1.. 3. Burden of Proof McDonnell also argues that the district court erroneously placed the burden upon him, instead of the Government, to establish whether or not a given document was classified. Specifically, McDonnell objects to language in the magistrate judge’s report and recommendation dismissing as “conjecture” his theory that the requested information was withheld because of “[n]a-tional [ejmbarrassment, not [n]ational [security.” App. at 397. Under section 1.6(a) of Executive Order 12,356, information may not be withheld for the sole purpose of preventing embarrassment to an agency. McDonnell postulated that the real reason the FBI was withholding the five documents at issue was in order to prevent embarrassment stemming from the transportation of arms to revolutionary Cuba aboard a passenger ship. The magistrate judge noted that the only evidence McDonnell had supplied to support this theory was that certain documents indicated that the customs officer in Cuba was not to be interviewed, and that Exemption 1 was invoked in conjunction with the notation “Referred to Customs.” The magistrate judge concluded that McDonnell had failed' to carry his burden of proof insofar as he sought to bring his discovery requests within section 1.6(a), declaring, “Parties must be required to supply some basic facts and evidence, or we will fall prey to the creative plaintiff who can conjure up endless unsupported theories in order to fall within the confines of Executive Order 12356 § 1.6(a).” App. at 397 (footnote omitted). This isolated statement, taken out of context, does not indicate that the court placed on McDonnell the burden of demonstrating “that the withheld material is under the purview of an Executive Order and has been properly classified pursuant to such order.” Patterson, 705 F.Supp. at. 1039. This is undeniably the Government’s burden. Instead, the court made this remark in reference to McDonnell’s attempt to bring his request for coded documents within section 1.6(a). The report and recommendation clearly shows that the magistrate judge looked to the. Government for proof of classification and became satisfied, as we aré, that the Government carried its burden before turning to McDonnell. The only passage which McDonnell cites in his brief as indicating otherwise, dealt with his claims regarding the Niger documents. As discussed above, those claims were properly dismissed because McDonnell failed to exhaust his administrative remedies concerning their release. We agree with the district court that McDonnell produced insufficient evidence to create a disputed issue of material fact regarding his theory of an arms eoverup. Therefore,, the district court did not err in. adopting the magistrate judge’s recommendation on this point. 4. Classification in Anticipation of Litigation Finally, McDonnell urges that the Government classified the withheld information in anticipation of litigation, but he points to no evidence to support this argument. Even if this is so, an agency may classify or reclassify information after it has received a request for it under the FOIA if that classification meets the requirements of Executive Order 12,356 and is accomplished personally and on a document-specific basis by an official with original Top Secret classification authority. Exec.Order 12,356, 47 Fed.Reg. 14874 § 1.6(d) (1982). We have already determined that the five withheld documents identified were properly classified under Executive Order 12,356 by Whaley, an official holding the requisite classification authority. Accordingly, McDonnell’s argument that these documents should be released because they were classified in anticipation of litigation has no merit. B. Exemption 3 — Statutory Exception Under Exemption 3, an agency may withhold matters “specifically exempted from disclosure by statute,” other than the FOIA, if that statute either “(A) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.A. § 552(b)(3); see American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978) (statute falls within Exemption 3 if it satisfies either one of disjunctive requirements lettered “(A)” and “(B)”). Exemption 3 differs from the other FÓIA exemptions in that its applicability depends less on the detailed factual contents of specific documents. Association of Retired R.R. Workers v. United States R.R. Retirement Bd., 830 F.2d 331, 336 (D.C.Cir.1987). Instead, the sole issues for decision in determining the applicability of Exemption 3 to a particular set of documents are the existence of either type of relevant statute and the inclusion of withheld material within the statute’s coverage. Id. The Government invoked Exemption 3 to preclude disclosure of requested material under two. separate statutes: Federal Rule of Criminal Procedure 6(e), which applies to matters occurring before a grand jury, and 18 U.S.C.A. § 5038 (West 1985), which applies to juvenile records. We will address the applicability of each of statute to the requested documents in turn. 1. Grand Jury Material Federal Rule of Criminal Procedure 6 governs federal grand jury proceedings. Eed. R.Crim.P. 6 Section (d) of that rule limits the persons who may be present while a grand jury is in session to attorneys for the government, the witness under examination, interpreters if needed, and the stenographer or operator of a recording device. Fed. R.Crim.P. 6(d). Section (e)(2) imposes a general rule of secrecy on all persons who are present pursuant to section (d) except witnesses before the grand jury. See Butterworth v. Smith, 494 U.S. 624, 629-36, 110 S.Ct. 1376, 1379-83, 108 L.Ed.2d 572 (1990). Specifically, this section provides that all persons listed “shall not disclose matters occurring before the grand jury, except as otherwise, provided for in these rules.” Fed. R.Crim.P. 6(e)(2). The Government invoked Rule 6(e)(2) to preclude disclosure of three categories of information: (1) Information and records presented to a federal grand jury concerning the Morro Castle, its crew, and its passengers; (2) names of individuals subpoenaed; and (3) federal grand jury transcripts of testimony. The magistrate judge agreed that the names of individuals subpoenaed and transcripts of testimony, by definition, included matters before the grand jury and thus constituted a sufficient basis for withholding under Rule 6(e) and Exemption 3. The court reached the same conclusion with regard to the information and records presented to the grand jury concerning the Mor-ro Castle, its crew, and its passengers after conducting an in camera inspection of this information. Rule 6(e) has been held to satisfy the requirements of Exemption 3: The rule.makes quite clear that disclosure of matters occurring before the grand jury is the exception and not the rule. It further sets forth in precise terms to whom, under what circumstances and on what conditions grand jury information may be disclosed. Any disclosure to persons outside of the government may only be made pursuant to a court order. Fed.R.Crim.P. 6(e)(3)(C). Therefore, the rule’s ban on disclosure is for FOIA purposes absolute and falls within subpart (A) of Exemption 3. See American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978). Fund for Constitutional Gov’t v. National Archives, 656 F.2d 856, 868 (D.C.Cir.1981). McDonnell apparently concedes that Rule 6(e) constitutes a statute specifically exempting material from disclosure. He nevertheless argues that Rule 6(e) does not establish an absolute ban on disclosures within the meaning of subsection (A) of Exemption 3 because the plain language of that rule gives a court discretion to decide whether grand jury material falls within the general rale of secrecy. Instead, he argues, Rule 6(e) falls under subsection (B) of Exemption 3, which encompasses statutes establishing particular criteria for withholding or referring to particular types of matters to be withheld. Accordingly, McDonnell asserts, the district court should have conducted a factual inquiry regarding whether the grand jury material at issue fell within the scope of the rale of secrecy under Rule 6(e)(2). McDonnell bases this argument on Rule 6(e)(3)(E), which establishes a procedure for disclosure in cases in which “the judicial proceeding giving rise to the petition is in a federal district court in another district.” Fed.R.Crim.P. 6(e)(3)(E). In such cases, [T]he court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard. Id. ■ The plain language of this subsection establishes guidelines for transferring grand jury materials between district courts only when disclosure is otherwise permitted. It does not, in and of -itself, establish an exception to the general rale of secrecy upon which the Government relied to withhold the requested information. Before a court must evaluate the need for continued secrecy under subsection (e)(3)(E), the party- seeking disclosure must establish that the grand jury material sought falls within one of the six exceptions to the general rule of secrecy enumerated in Rule 6(e)(3)(A)(C). See Fund for Constitutional Gov’t, 656 F.2d at 868. Under subsection (e)(3), disclosure otherwise prohibited by Rule 6(e)(2) of matters occurring before the grand jury may be made: (1) To a government attorney for use in the performance of his duty. Fed.R.Crim.P. 6(e)(3)(A)(i); (2) to such government personnel as a government attorney deems necessary to assist him in the performance of his duty to enforce federal criminal law, id. 6(e)(3)(A)(ii); (3) when so directed by a court preliminarily to or in connection with a judicial proceeding, id. 6(e)(3)(C)(i); (4) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury, id. 6(e)(3)(C)(ii); (5) when disclosure is made by a government attorney to another federal grand jury, id. 6(e)(3)(C)(iii); and (6) when permitted by a court at the request of an attorney for the government, upon a showing that'such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law, id. 6(e)(3)(C)(iv). The first two excepti