Navigating PA's Right to Know Law (RTKL)

Navigating PA's Right to Know Law (RTKL)

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Friday, January 19, 2018

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CENTRE COUNTY GRAND JURY HAZING REPORT

I. CAN A PROSECUTOR BE TRUSTED WHEN CLAIMING THAT A DOCUMENT IS A "GRAND JURY REPORT"?

Suppose you are a media reporter and you get invited to a press conference at which a District Attorney or an Attorney General releases a document called a "grand jury report". How many reporters think "got any proof of that? How do I know you didn't write it yourself and its not something the grand jurors voted to approve?" Probably not many. Is this an idle question or a conspiracy theory type question? Let's look at a real world example. Before she was a convicted criminal PA Attorney General Kathleen Kane's Office ran the 38th statewide investigating grand jury (Supervising Judge Krumenaker) in Allegheny County. That grand jury looked into allegations that Centre County DA Stacy Parks Miller had forged a Judge's signature on a fake Court Order. The end result was a document posted on the Office of Attorney General's website (still there to this day) from inside a July 31, 2015 press release from Kathleen Kane. "OK, that's the grand jury report" you think to yourself. If that's true then the law, 42 Pa. C.S. § 4552(b), requires this public document be filed with the Allegheny County Court of Common Pleas by Order of the Supervising Judge. Go ahead, double check that when Kathleen Kane was telling the world she had an official grand jury report (and not some unapproved report that OAG wrote itself) Kane was telling the truth. Make a public records request under the common law of the Allegheny Clerk of Courts. Just ask the Clerk to send you all public records filed at the Courthouse from the 38th statewide investigating grand jury. See what the Clerk tells you. Then, if you're still curious, call Supervising Judge Krumenacker and ask him why there's a news story/interview in which it is reported that the grand jurors didn't approve any report. Maybe mention the Legal Intelligencer's 2016 story about that grand jury investigation being a rigged outcome.

II. THE DIFFERENCE BETWEEN PUBLIC JUDICIAL RECORDS AND PUBLIC DA RECORDS

The PA Commonwealth Court and PA Supreme Court have made clear that the seperation of powers doctrine is such that different branches of government (e.g. Judicial Branch/Court of Common Pleas v. Executive Branch/DA's Office v. Legislative Branch) and the records they each generate are distinguishable when it comes to which branch can release what records to the public. See e.g. Court of Common Pleas of Lackawanna County v. Office of Open Records, 2 A.3d 810, 813 (Pa. Cmwlth. 2010). More recently, see Philadelphia District Attorney's Office v. Stover (PA Commonwealth Court 9-12-17 reported 18-8-17), and Stacy Parks Miller, District Attorney v. County of Centre (PA Supreme Court 11-22-17).

Under PA's Right to Know Law, a DA's Office is a "local agency" and the entirety of its records are presumptively public whereas a Court of Common Pleas is a "judicial agency" and only its financial records are presumptively public under the RTKL. However, the RTKL is not the only mechanism by which (non-financial) public judicial records are available to citizens. There is a separate 'Common Law' right to access public judicial records. The cases mentioned above/below are illustrative case precedent. When one type of government entity 'creates' a  public record that record is said to be "of" that agency:

The quintessential issue in this case is whether the requested records, namely the Order of Conviction, Order of Sentencing, and Commitment Form, are records “of” the District Attorney (a local agency) or records “of” the court of common pleas (a judicial agency). See section 102 of the RTKL, 65 P.S. §67.102 (defining “record”). If the records are the former, they are disclosable [under the RTKL]; if the latter, they are not.“In discerning whether records qualify as records ‘of’ a particular agency, we consider the subject-matter of the records. The location of the record or an agency’s possession does not guarantee that a record is accessible to the public; rather, thecharacter of the record controls.” Grine, 138 A.3d at 94-95 (citations omitted). “[A] record qualifies as ‘of’ an agency when that record documents a transaction or activity of the agency. ‘Documents’ means proves, supports [or] evidences.” Id. at 94 (citations and some internal quotation marks omitted).

This Court has held that a sentencing order is a record “of” the judiciary and, as such, it is not disclosable under the RTKL. Faulk, 116 A.3d at 1188; Linton v. Office of Open Records (Philadelphia Clerk of Courts) (Pa. Cmwlth., No. 1696 C.D. 2014, filed May 14, 2015) (unreported), slip op. at 3-4. The fact that the District Attorney may possesses – or readily obtain – a copy of the sentencing order in no way transforms the record of a judicial agency into a record of a local agency*. See Grine, 138 A.3d at 97.

Source: Philadelphia District Attorney's Office v. Stover. *This decision suggests DA Offices'  (Executive Branch) should be cautious before releasing records "of" Courts of Common Pleas (Judicial Branch) under the RTKL.

The courts of this Commonwealth long have recognized that citizens have a common law right to the inspection of public documents. Mooney v. Temple Univ. Bd. of Trs., 292 A.2d 395, 398 n. 10 (Pa. 1972) (“There is a well-established right at common law to inspect public records upon request in a reasonable manner.”); Wiley v. Woods, 141 A.2d 844, 847 (Pa. 1958). Given the importance of the need for open observation of our criminal justice system, this common law right of access has always extended to public judicial records. See, e.g., Commonwealth v. Fenstermaker, 530 A.2d 414, 417-421 (Pa. 1987). Our Court has acknowledged that this principle of openness with respect to public judicial records is, in addition to common law tradition, also grounded in the Pennsylvania Constitution. Id. at 417 (“Article I, section 9 provides, ‘In all criminal prosecutions the accused hath a right to . . . a speedy public trial. . . ,’ and Article I, section 11 states, ‘All courts shall be open.’”). While we never have had occasion carefully to define the parameters of the right to inspect public judicial documents, it is clear that this right extends at least to “[d]ocuments that are filed with the court and, in particular, those that are used by the judge in rendering a decision are clearly considered public judicial documents.” Commonwealth v. Long, 922 A.2d 892, 898 (Pa. 2007).

Source: Stacy Parks Miller, District Attorney v. County of Centre.

III. PA GRAND JURY LAW REQUIRES THE CREATION OF PUBLIC JUDICIAL RECORDS FOR REPORTS NOT PUBLIC DA RECORDS

There are two types of public records that can be generated as a results of a grand jury's work in PA. The first is a "presentment" where the grand jury recommends criminal charges(whether the prosecutor actually files such charges is a discretionary decision). The second is a "report" which is where legislative and/or administrative action is recommended. How a presentment or a report becomes public is established by law. Under either scenario the starting point is that the grand jurors themselves must first cast an affirmative majority vote:

42 Pa. C.S. § 4551; Investigating grand jury PRESENTMENTS (criminal matters):

(a)  General rule.--Should the investigating grand jury determine that upon the basis of evidence presented to it a presentment should be returned against an individual, the grand jury shall direct the attorney for the Commonwealth to prepare a presentment which shall be submitted to the investigating grand jury for a vote. Should a majority of the full grand jury vote approval for the presentment it shall then be submitted to the supervising judge. The supervising judge shall examine the presentment, and if it is within the authority of the investigating grand jury and is otherwise in accordance with the provisions of this subchapter, the supervising judge shall issue an order accepting the presentment. Otherwise, the supervising judge shall refuse to accept the presentment and shall order that the investigating grand jury take further appropriate action.
(b)  Sealed presentment.--The supervising judge to whom a presentment is submitted may, on his own motion or at the request of the Commonwealth, direct that the presentment be kept secret until the defendant is in custody or has been released pending trial. In directing that the presentment be kept secret, the supervising judge shall enter an order requiring that the presentment be sealed and that no person shall disclose a return of the presentment except when necessary for issuance and execution of process.
(c)  Prosecution by Attorney General.--Whenever a multicounty investigating grand jury returns a presentment against any person the Attorney General or his designee shall, with respect to the alleged criminal activities, be authorized to prosecute the person on behalf of the Commonwealth by instituting criminal proceedings in the county of appropriate venue. The Attorney General or his designee shall take the oath of office required by law to be taken of district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon district attorneys by law.
(d)  Venue.--In any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction.
(e)  Procedure following presentment.--When the attorney for the Commonwealth proceeds on the basis of a presentment, a complaint shall be filed and the defendant shall be entitled to a preliminary hearing as in other criminal proceedings.

42 Pa. C.S. § 4552;  Investigating grand jury REPORTS (civil matters):

(a)  General rule.--Any investigating grand jury, by an affirmative majority vote of the full investigating grand jury, may, at any time during its term submit to the supervising judge an investigating grand jury report.
(b)  Examination by court.--The judge to whom such report is submitted shall examine it and the record of the investigating grand jury and, except as otherwise provided in this section, shall issue an order accepting and filing such report as a public record with the court of common pleas established for or embracing the county or counties which are the subject of such report only if the report is based upon facts received in the course of an investigation authorized by this subchapter and is supported by the preponderance of the evidence.
(c)  Sealed report.--Upon the submission of a report pursuant to subsection (a), if the supervising judge finds that the filing of such report as a public record may prejudice fair consideration of a pending criminal matter, he shall order such report sealed and such report shall not be subject to subpoena or public inspection during the pendency of such criminal matter except upon order of court.
(d)  Appeal from refusal to file.--Failure of the supervising judge to accept and file as a public record a report submitted under this section may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rules.
(e)  Authorization of response by nonindicted subject.--If the supervising judge finds that the report is critical of an individual not indicted for a criminal offense the supervising judge may in his sole discretion allow the named individual to submit a response to the allegations contained in the report. The supervising judge may then in his discretion allow the response to be attached to the report as part of the report before the report is made part of the public record pursuant to subsection (b).

IV. SUBTLE BUT IMPORTANT DIFFERENCES BETWEEN PRESENTMENTS (§ 4551) AND REPORTS (§ 4552)

  • § 4551(a) empowers the grand jury with the authority to "direct" that the DA prepare a presentment for a vote of the grand jurors. § 4552(a) does not empower the grand jury to direct the DA prepare a report. § 4552(a) is silent as to who prepares a report for a vote.
  • § 4552 does not empower the grand jury to "direct" any action of the DA.
  • § 4551 does not affirmatively require the Judge to issue an Order making a presentment a matter of public record to be filed in the Court of Common Pleas.
  • § 4552(b) mandates that the Judge issue an Order requiring the report to be a public record filed with the Court of Common Pleas if the report was a) approved by majority vote of the grand jurors under § 4552(a) and the Judge found it based on the facts received.

IV. BUCKS COUNTY: INVESTIGATING GRAND JURY REPORT

Here is a Bucks County, PA grand jury report from 2017 in which the supervising Judge correctly issued an Order under § 4552(b) requiring the report be filed with the Clerk of Courts. Judge Gibbons followed the requirement of § 4552(b) to create a public judicial record of the Court of Common Pleas.

V. CENTRE COUNTY: GRAND JURY SUPERVISING JUDGE KISTLER DID NOT FOLLOW THE LAW (§ 4552)

This 10-20-17 Court Order and this 12-13-17 Court Order from Judge Kistler do not comport with the requirements of 42 Pa. C.S. § 4552 Investigating grand jury reports.