In re: 2014 Allegheny Cty. Investigating Grand Jury (Allocatur Grant)

Public Access to Grand Jury Documents

In re: 2014 Allegheny Cty. Investigating Grand Jury, 181 A.3d 349 (Pa. Super. 2018), allocatur granted Aug. 29, 2018, appeal docket 30 WAP 2018

In 2015, WPXI, Inc., a news reporting television station, was investigating allegations of improper relationships between several teachers and students at the high school in the Plum Borough School District. In connection with this inquiry, WPXI filed a motion to intervene in the proceedings of the 2014 Allegheny County Investigating Grand Jury to gain access to unsealed documents, specifically, a search warrant and a related court order.

Following denial of its motion by the Court of Common Pleas, WPXI lodged an appeal, which a panel of the Superior Court dismissed upon sua sponte invocation of the mootness doctrine in In re 2014 Allegheny Cty. Investigating Grand Jury, 147 A.3d 922 (Pa. Super. 2016). According to the panel, WPXI conceded it had access to both documents that it sought, and thus, a ruling in the company’s favor would have no practical effect. WPXI appealed this decision to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court held that public disclosure of the search warrant and court order sought did not render moot WPXI’s request for the documents from an official source and remanded the case to the Superior Court for further proceedings.

On remand, the Superior Court held that the television station was entitled to intervene in the grand jury investigation, but, as a matter of first impression, held that documents were not subject to disclosure to television stations under either common law right of access or the First Amendment. Specifically, the court found that a search warrant, and the related order by the Court of Common Pleas that issued the warrant, constituted judicial records, but not public judicial records, and therefore were not subject to the common law right of access established by the Pennsylvania Supreme Court in PG Publishing Co. v. Com., 614 A.2d 1106 (Pa. 1992). Citing to the secretive nature of investigative grand jury proceedings, the court reasoned that an executed search warrant and a related Order of the Court of Common Pleas, even if not placed under seal, are not publicly accessible because the warrant was related to a matter subject to an investigating grand jury. Likewise, the Superior Court concluded that the First Amendment’s experience-and-logic test produces the same result, as addressed by the Third Circuit in United States v. Smith, 123 F.3d 140, 147 (3d Cir. 1997):

[The United States Supreme decision in] Douglas Oil implicitly makes clear that grand jury proceedings are not subject to a First Amendment right of access under the test of “experience and logic.” Historically, such proceedings have been closed to the public. Moreover, public access to grand jury proceedings would hinder, rather than further, the efficient functioning of the proceedings.

Having found no public right of access attached to the documents sought by WPXI under either the common law and the First Amendment tests, the court declined to consider the final question posed by WPXI: whether the trial court erred in not making findings of fact to support its alternative holding that the Commonwealth’s interest in maintaining the secrecy of the documents outweighed any such right.

The Supreme Court of Pennsylvania granted allocatur on the following issues:

(1) Did the Superior Court err in holding that a search warrant, and the related order by the Court of Common Pleas that issued the warrant, constituted judicial records, but not public judicial records, and therefore were not subject to the common law right of access established by the Supreme Court in PG Publishing Co. v. Com., 614 A.2d 1106 (Pa. 1992), which held that executed search warrants are public judicial records presumptively accessible by the news media as representatives of the public − although the warrant was already executed upon a public school district official, in a matter of public importance and neither the executed warrant nor the order of court had been placed under seal− simply because the warrant was related to a matter subject to an investigating grand jury?

(2) Is it error for the Superior Court to hold that an executed search warrant and a related Order of the Court of Common Pleas, which have not been placed under seal, are not publicly accessible simply because the warrant was related to a matter subject to an investigating grant jury, when that holding conflicts with the search warrant rules of the Pennsylvania Rules of Criminal Procedure?

(3) Does the First Amendment to the United States Constitution provide a presumptive right of public access to an executed search warrant and related order by the Court of Common Pleas in a matter of public importance, when neither the executed warrant nor the order of court had been placed under seal, and the warrant was related to a matter subject to an investigating grand jury?

(4) Was it error, under the First Amendment to the United States Constitution, the Pennsylvania Constitution, and common law principles governing the right of access to public judicial records, for the Court of Common Pleas to expressly refuse to make case specific findings openly on the record as to any compelling governmental interests or public and private interests that would outweigh the right of access, when the Court of Common Pleas denied the news media access to an executed search warrant and related order by the issuing court, neither of which were under seal, in a matter of public importance?

For more information, contact Kevin McKeon or Dennis Whitaker.