In Re: 2014 Allegheny County, Appeal of: WPXI , 181 A.3d 349 ( 2018 )

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2018 Pa. Super. 56
IN RE: 2014 ALLEGHENY COUNTY : IN THE SUPERIOR COURT OF
INVESTIGATING GRAND JURY : PENNSYLVANIA
:
:
APPEAL OF: WPXI, INC. : No. 950 WDA 2015
Appeal from the Order May 22, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-MD-0003179-2015
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED MARCH 14, 2018
This matter comes before us on remand from the Pennsylvania
Supreme Court, following its entry of an order reversing our determination
of mootness of the appeal of WPXI, Inc. (WPXI). WPXI appeals from the
May 22, 2015 order that denied its motion to intervene and obtain access to
a search warrant and sealing order issued in connection with the 2014
Allegheny County investigating grand jury.1 We affirm.
The following from our prior opinion summarizes the relevant
underlying facts.
In early 2015, allegations of improper sexual relations between
faculty and students at Allegheny County’s Plum High School
became public. In covering the ongoing news story surrounding
the contentions and resulting grand jury investigation into them,
WPXI, a Pittsburgh-based television station, presented to the
trial judge serving as the supervising judge of the grand jury a
motion to intervene and to access public judicial records.
1 WPXI’s requests were denied in open court on May 22, 2015; however, the
docket does not reflect that an order was filed. We treat May 22, 2015 as
the date of entry of the appealed-from order pursuant to Pa.R.A.P. 108(a)(1)
(“The day of entry of an order may be the day of its adoption by the court…
as required by the actual circumstances.”).
*Retired Senior Judge assigned to the Superior Court.
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Therein, WPXI averred, upon information and belief, that the
trial court had on May 18, 2015, issued (1) a warrant authorizing
a search at the Plum High School Administration Building, and
(2) an order sealing the affidavit of probable cause that
supported the search warrant.1 After hearing argument on the
motion on May 22, 2015, the trial court denied WPXI’s motion.
______
1 WPXI was not seeking access to the supporting affidavit
or any attachment identifying suspected juvenile victims.
In re 2014 Allegheny Cty. Investigating Grand Jury, 147 A.3d 922, 923
(Pa. Super. 2016) (internal citations and quotation marks omitted).
WPXI timely filed an appeal, which we sua sponte dismissed as moot
on the basis that WPXI had otherwise obtained the documents in question
when they were made public by another source. Id. at 924. Our Supreme
Court determined that this Court lacked sufficient information to make the
mootness determination, and remanded for us to consider the merits of the
appeal. In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d
653 (Pa. 2017).
The questions before us are as follows.
1. Whether the lower court erred in not granting WPXI’s
motion to intervene.
2. Whether the lower court erred and abused its
discretion in denying WPXI’s motion for access to:
(a) the application for search warrant and
authorization (i.e., the search warrant) for a search at
Plum School District High School/Administrative Building,
when the search warrant was issued by the court on May
18, 2015 and executed prior to WPXI’s motion to intervene
and obtain access, and WPXI’s motion for access did not
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seek any materials identifying any suspected juvenile
victims, and
(b) the related order of court dated May 18, 2015
that sealed only the attachment to the search warrant
application and affidavit for probable cause identifying
suspected juvenile victims (which order of court was not
itself sealed by an order entered on the record).
3. Whether the lower court erred in not making specific
findings as to any compelling governmental interests or public
and private interests that would outweigh WPXI’s and the
public’s right to access.
WPXI’s Brief at 4 (unnecessary capitalization omitted).
We begin with the propriety of WPXI’s request to intervene and the
trial court’s denial thereof. “The filing of a motion to intervene in a criminal
case by the news media has long been recognized by [our Supreme] Court
as an appropriate means of raising assertions of public rights of access to
information regarding criminal case proceedings.”2 Commonwealth v.
Fenstermaker, 530 A.2d 414, 416 n.1 (Pa. 1987). “Intervention of this
type may properly be termed de bene esse, to wit, action that is provisional
in nature and for the limited purpose of permitting the intervenor to file a
motion, to be considered separately, requesting that access to proceedings
or other matters be granted.” Id.
Thus, under Fenstermaker, WPXI should have filed a motion seeking
only to intervene. The trial court should have granted it, after which WPXI
2 “Access rights of the news media, and of the general public, are identical in
scope.” Fenstermaker, 530 A.2d at 416 n.1.
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should have filed its motion to access the documents in question. The trial
court then should have scheduled a hearing on the motion for access, and
ruled on the merits of that motion.
Instead, WPXI filed a single motion: a “motion to intervene and obtain
access to public judicial records.” Motion to Intervene, 5/21/2015. The
following day, the trial court held a hearing on the motion, at which it
considered WPXI’s standing as well as the substance of WPXI’s request for
access to the requested documents. N.T., 5/22/2015, at 11-15. At the
conclusion of the hearing, the trial court denied WPXI’s motion on several
alternative bases. Id. at 14-15.
To the extent that it denied the intervention portion of WPXI’s motion,
the trial court did err. See, e.g., Fenstermaker, 530 A.2d at 416 n.1.
However, because the court held a hearing at which WPXI presented the
substance of its request, and the court ruled on the merits thereof, WPXI de
facto was permitted to intervene. Accordingly, although there was technical
error, no relief is warranted.
We next consider whether the trial court erred in denying WPXI’s
claims of access to the grand-jury-related documents. WPXI sought to
obtain the search warrant and sealing order pursuant to both common law
and the First Amendment. See N.T., 5/22/2015, at 8.
Neither WPXI nor the Commonwealth cites any Pennsylvania decision
addressing the public’s right (or lack thereof) to access or copy grand jury
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documents or search warrant documents issued in connection with a grand
jury investigation. Nor have we found any. In deciding this issue of first
impression, we first examine cases that establish the legal principles
applicable to requests for other judicial documents, and then consider how
the special nature of grand jury proceedings impacts the analysis of those
principles.
Our Supreme Court set forth the standard for establishing the common
law right of access to public judicial documents in Fenstermaker, a case in
which a newspaper sought access to arrest warrants and supporting
affidavits. “The threshold inquiry … is whether the documents sought to be
disclosed are public judicial documents, for not all writings connected with
judicial proceedings constitute public judicial documents.” Fenstermaker,
530 A.2d at 418. There is a presumption of openness where public judicial
documents are involved; however, the right is not absolute. Id. at 420.
Access to public judicial documents may be denied when the presumption
“is outweighed by circumstances warranting closure of the document to
public inspection[.]” Id.
Applying the above test to the arrest warrants at issue, the Court
concluded that the documents were judicial because they informed the
decision to issue an arrest warrant. Further they were public because
procedural rules provide for the filing of warrants and affidavits, making
them part of the permanent public record of the case. Id. at 418-19.
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Having concluded that the requested documents were public judicial
documents, the Court held that the newspaper should have been granted
access to the arrest warrant affidavits:
When arrests have been made pursuant to warrants, the
supporting affidavits must be deemed open to public inspection
until such times as District Attorneys or defense counsel have
obtained court orders that the affidavits be sealed from public
access. This places upon those wishing to seal affidavits a
burden of moving swiftly to obtain the necessary court orders,
but it is a burden that is necessary in order to accord due
recognition to the common law right of the public to secure
access to such documents. The decision of the trial court shall
be appealable and shall be rendered following a hearing, and the
record shall contain an articulation of the factors taken into
consideration in reaching a determination as to sealing of the
affidavits.
Id. at 420-21.
Our Supreme Court again considered the issue of the common law
right of access in PG Publishing Company v. Commonwealth, 614 A.2d
1106 (Pa. 1992). In that case, the Pittsburgh Post-Gazette sought access to
search warrants and supporting affidavits after the warrants had been
executed, but before the target had been charged with murder. Id. at 1107.
After examining Fenstermaker, and recognizing “that the purposes of
arrest warrants and search warrants differ,” the Court nonetheless concluded
that “the differences do not compel a conclusion that search warrants are
not public records once the warrants have been executed.” Id. at 1108.
A search warrant is a public judicial document. There is no
historical tradition of public access to search warrant
proceedings. As with arrest warrants, however, the search
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warrant application is filed with district justices who are part of
the Commonwealth’s unified judicial system. The documents
upon which the district justice bases a decision to issue a search
warrant are also judicial in character, for the decision to issue a
search warrant is a judicial decision.
The ex parte application for the issuance of a search
warrant and the issuing authority’s consideration of the
application are not subject to public scrutiny. The need for
secrecy will ordinarily expire once the search warrant has been
executed.
Id. at 1108.
Our Supreme Court once more took up the issue in Commonwealth
v. Upshur, 924 A.2d 642 (Pa. 2007) (Opinion Announcing the Judgment of
the Court), a case in which WPXI sought access to an audiotape that was
played at Upshur’s preliminary hearing but was not entered into evidence.
Upshur, 924 A.2d at 645. Justice Saylor, announcing the judgment of the
Court, first revisited the pertinent precedent, noting generally that “the
public right to review and copy judicial records and documents provides an
important check on the criminal justice system, ensuring not only the fair
execution of justice, but also increasing public confidence and
understanding.” Id. (citing Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 572 (1980) (plurality opinion) (“People in an open society do not
demand infallibility from their institutions, but it is difficult for them to
accept what they are prohibited from observing.”)). In the review of the
case law, the plurality, citing Fenstermaker and PG Publishing, observed:
“Certainly… any item that is filed with the court as part of the permanent
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record of a case and relied upon in the course of judicial decision-making will
be a public judicial record or document.” Id. at 648. The plurality also
noted as follows:
The constitutional presumption of openness extends to
pretrial proceedings, including preliminary hearings. Preliminary
hearings, like other pretrial proceedings, are an important part
of the criminal justice process. Evidence presented at preliminary
hearings and determinations made at pretrial proceedings may
dictate whether a full trial will be held. Indeed, preliminary
hearings, though often waived, may at times provide the only
opportunity for the public to observe the criminal process
because the vast majority of criminal cases are disposed of via
pleas.[]
Id. at 649 n.6 (citations omitted).
Applying these principles to the facts before it, Justice Saylor
determined that, although the tape “was never filed with the court, entered
into evidence, or otherwise made part of the record[,]” id. at 649, it was as
a matter of law a public judicial document. While the status of a document
as having been made part of the record is relevant, it is not dispositive: “The
common law right of access is based upon the public’s interest in knowing
about events as they actually transpire and not simply on what is filed with a
court or formally admitted into evidence.” Id. The tape had been presented
at a preliminary hearing and thus formed “the basis of the magistrate district
judge’s legal decision as to whether the charges [were] held for trial, and
thus … was clearly the type of material upon which a judicial decision is
based.” Id. at 650-51. Further, the plurality indicated, “the disclosure of
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the tape recording at the open preliminary hearing and in the form of a
transcript, regardless of potential admissibility at trial, renders the
Commonwealth’s assertion that the tape is not a public document
untenable.” Id. at 651.
We next review the impact of the First Amendment on access to court
documents.3 The United States Supreme Court in Richmond Newspapers,
noting the presumption of openness to criminal trials, concluded that the
First Amendment rights include the right of the public to attend such trials.
448 U.S. 573, 580. This is based upon, inter alia, the following interests.
1. Public access to criminal proceedings promotes informed
discussion of governmental affairs by providing the public with a
more complete understanding of the judicial system, serving an
important educative interest;
2. Public access to criminal proceedings gives the assurance that
the proceedings were conducted fairly to all concerned and
promotes the public perception of fairness. Public confidence in
and respect for the judicial system are served only by permitting
full public view of the proceedings;
3. Public access to criminal proceedings has a significant
community therapeutic value because it provides an outlet for
community concern, hostility, and emotion;
4. Public access to criminal proceedings serves as a check on
corrupt practices by exposing the judicial process to public
3 Although First Amendment claims were before our Supreme Court in
Fenstermaker and Upshur, the Court declined to address them after it
determined that there was a right of access under the common law. See,
e.g., Upshur, 924 A.2d at 653 n. 11 (“As the common law right of access is
dispositive in the present case, we need not address any constitutional
claims that have been advanced.”); Fenstermaker, 530 A.2d at 419
(same).
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scrutiny, thus discouraging decisions based on secret bias or
partiality;
5. Public access to criminal proceedings enhances the
performance of all involved; and
6. Public access to criminal proceedings discourages perjury.
United States v. Kemp, 365 F. Supp. 2d 618, 627-28 (E.D. Pa. 2005) (citing
generally Richmond Newspapers).
In Press-Enterprise Co. v. Superior Court of California for
Riverside Cty., 478 U.S. 1 (1986) (Press-Enterprise II), the Court
applied Richmond Newspapers to preliminary hearings, establishing that
the existence of a First Amendment right of access initially is based upon
consideration of “whether the place and process have historically been open
to the press and general public,” Press-Enterprise II, 478 U.S. at 8, and
“whether public access plays a significant positive role in the functioning of
the particular process in question.” Id. at 9. In other words, “[t]his test
asks whether (1) experience and (2) logic favor public access.” In re
Newark Morning Ledger Co., 260 F.3d 217, 220 n.6 (3d Cir. 2001) (citing
Press-Enterprise II). “If the particular proceeding in question passes
these tests of experience and logic, a qualified First Amendment right of
public access attaches.” Press-Enterprise II, 478 U.S. at 9.
“But even when a right of access attaches, it is not absolute.” Id.
“[The] presumption [of access] may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher values
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and is narrowly tailored to serve that interest.” Kemp, 365 F. Supp. 2d at
628 (internal quotation marks and citation omitted). “The interest is to be
articulated along with findings specific enough that a reviewing court can
determine whether the closure order was properly entered. Further, the
court must in a timely manner state its reasons on the record for rejecting
alternatives to closure.” Id. at 628-29 (internal citations and quotation
marks omitted).
In sum, to prevail on its common-law claim, WPXI initially had to show
that the documents it sought were public judicial documents; then, if the
Commonwealth wished to have them sealed, the trial court was required to
balance the public’s right of access with the Commonwealth’s interests in
preventing disclosure. To prevail on its First Amendment claim, WPXI had to
establish that experience and logic favor the public’s having access to the
documents, after which the Commonwealth could nonetheless prevent
access upon showing an overriding government interest narrowly tailored to
serve that interest. Both claims require the trial court, in deciding the issue,
to make specific factual findings that support its rationale.
As we noted above, we are unaware of any Pennsylvania case that
applied these legal principles to a request to access or copy search warrant
documents issued in connection with a grand jury investigation.
Accordingly, we shall next examine the nature of grand jury proceedings in
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general, and consider how other jurisdictions have ruled upon a claim of
access to grand-jury-related documents.
“In Pennsylvania, grand jury proceedings have traditionally been
conducted in secrecy, and for a salutary reason. The secrecy of grand jury
proceedings is indispensable to the effective functioning of a grand jury.”
In re Dauphin Cty. Fourth Investigating Grand Jury, 19 A.3d 491, 502
(Pa. 2011) (internal quotation marks and citation omitted). This secrecy… is
designed
(1) To prevent the escape of those whose indictment
may be contemplated; (2) to insure the utmost
freedom to the grand jury in its deliberations, and to
prevent persons subject to indictment or their friends
from importuning the grand jurors; (3) to prevent
subornation of perjury or tampering with the
witnesses who may testify before grand jury and
later appear at the trial of those indicted by it; (4) to
encourage free and untrammeled disclosures by
persons who have information with respect to the
commission of crimes; [and] (5) to protect innocent
accused who is exonerated from disclosure of the
fact that he has been under investigation, and from
the expense of standing trial where there was no
probability of guilt.
In re Investigating Grand Jury of Philadelphia Cty., 437 A.2d 1128,
1130 (Pa. 1981) (internal quotation marks and citation omitted).
The secrecy of investigating grand jury proceedings is further
mandated by rule and statute. The Rules of Criminal Procedure state that,
except under circumstances not relevant here, “the court shall control the
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original and all copies of the transcript and shall maintain their secrecy.
When physical evidence is presented before the investigating grand jury, the
court shall establish procedures for supervising custody.” Pa.R.Crim.P. 229.
Although witnesses are not precluded from disclosing their own testimony,
with exceptions not relevant here,
a juror, attorney, interpreter, stenographer, operator of a
recording device, or any typist who transcribes recorded
testimony may disclose matters occurring before the grand jury
only when so directed by the court. All such persons shall be
sworn to secrecy, and shall be in contempt of court if they reveal
any information which they are sworn to keep secret.
42 Pa.C.S. § 4549(b).
Hence, while the cases discussed above were based upon a
presumption of access flowing from the historical tradition and constitutional
requirements of open courts and public trials, the opposite is true of grand
jury proceedings. Indeed, as the trial court noted,
Even the Upshur case cited by WPXI cites to the U.S.
Supreme Court case Press[-]Enterprise [II], and [that case]
states,
Although many governmental processes operate best
under public scrutiny, it takes little imagination to
recognize that there are some kinds of government
operations that would be totally frustrated if
conducted openly. A classic example is that “the
proper functioning of our grand jury system depends
upon the secrecy of grand jury proceedings.”
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N.T., 5/22/2015, at 12 (quoting Press-Enterprise II, 478 U.S. at 8-9
(quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218
(1979))).
Given this stark difference between grand jury proceedings on one
hand, and criminal trials at their various stages on the other, it is
unsurprising that courts in other jurisdictions that have considered requests
for public access to documents related to grand jury proceedings have held
that denial of access was appropriate.
For example, in United States v. Smith, 123 F.3d 140, 146 (3d Cir.
1997), the Third Circuit considered whether the district court erred in
disallowing newspapers access to a sentencing memorandum that contained
grand jury material, as well as the briefs and hearing on whether the
government had violated the federal rule against disclosure of grand jury
material when it had (for a time) made the sentencing memorandum
available to the public. After determining that any issues related to the
sentencing memorandum were moot because the newspapers had already
obtained copies of it, the court affirmed as to the briefs containing grand
jury material, holding “there is no presumptive First Amendment or common
law right of access to them if secret grand jury material would be disclosed
by that access.” Smith, 123 F.3d at 143. The Smith court offered the
following discussion about grand jury secrecy.
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The longstanding rules preserving grand jury secrecy are
well established. As the Supreme Court explained in Douglas
Oil, “[s]ince the 17th century, grand jury proceedings have been
closed to the public, and records of such proceedings have been
kept from the public eye.” The secrecy of grand jury
proceedings is a necessary incident to the proper functioning of
the grand jury system. The Court has:
noted several distinct interests served by
safeguarding the confidentiality of grand jury
proceedings. First, if preindictment proceedings
were made public, many prospective witnesses
would be hesitant to come forward voluntarily,
knowing that those against whom they testify would
be aware of that testimony. Moreover, witnesses
who appeared before the grand jury would be less
likely to testify fully and frankly, as they would be
open to retribution as well as inducements. There
also would be the risk that those about to be indicted
would flee, or would try to influence individual jurors
to vote against indictment. Finally, by preserving
the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the
grand jury will not be held up to public ridicule.
Moreover, these interests in grand jury secrecy, although
reduced, are not eliminated merely because the grand jury has
ended its activities.
Thus, 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.
Not only are grand jury proceedings not subject to any
First Amendment right of access, but third parties can gain
access to grand jury matters only under limited circumstances.
Even after the grand jury has concluded its proceedings, a
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private party petitioning for access to grand jury materials must
show that the need for [access] outweighs the public interest in
secrecy, and ... the burden of demonstrating this balance rests
upon the private party seeking disclosure.
Smith, 123 F.3d at 148 (some citations and quotation marks omitted).
Examining the briefs and hearing at issue in Smith, the court noted
that the federal rules of grand jury secrecy apply to “anything which may
reveal what occurred before the grand jury,” including “[r]ecords, orders and
subpoenas relating to grand jury proceedings….” Id. at 148, 149 (internal
quotation marks omitted; emphasis added in Smith). Because the briefs
and hearing related to a grand jury proceeding, and might have revealed
what happened in the grand jury room, they were subject to the same
secrecy as the proceedings themselves. Id. at 149-50. Hence, there was
no First Amendment right to access the briefs and hearing. Similarly, the
court found no common law right of access: “Unlike judicial records to which
a presumption of access attaches when filed with a court, grand jury
materials have historically been inaccessible to the press and the general
public, and are therefore not judicial records in the same sense.” Id. at
156.
Another federal circuit court of appeals held that a Massachusetts
statute that automatically sealed records when the grand jury decided not to
issue an indictment withstood a First Amendment challenge by the Boston
Globe, reasoning as follows:
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The public has a First Amendment right to judicial documents
and records because without them a full understanding of
judicial proceedings would be impossible. Accordingly, the First
Amendment attaches only to those records connected with
proceedings about which the public has a right to know. The
public has no right to attend grand jury proceedings, and
therefore, has no right to grand jury records. In contrast to
criminal trials, grand jury proceedings have traditionally been
closed to the public and the accused, and the Supreme Court has
stated repeatedly that the proper functioning of our grand jury
system depends upon the secrecy of grand jury proceedings….
Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989). The
court thus concluded that neither the experience nor the logic prong was
satisfied.
In In re Gwinnett Cty. Grand Jury, 668 S.E.2d 682 (Ga. 2008), the
Supreme Court of Georgia held that “certain materials used by the grand
jury in its civil investigation” did not constitute court records subject to
public inspection under the state’s court rule USCR 21. The rule, consistent
with the Pennsylvania law discussed above, provided that all court records
are public and presumptively will be accessible to the public. Id. at 683.
The court explained:
Documents and recorded testimony received by a grand jury in
pursuit of its civil duties are not subject to disclosure under
USCR 21 because they do not fall within that which USCR 21
embodies: they are not court records to which the public and
press in Georgia have traditionally enjoyed access.
***
Accordingly, even if we assume that evidence and
testimony presented to a grand jury in pursuit of its civil duties
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are records of the superior court, they are not court records
subject to USCR 21 because the press and public have not
traditionally enjoyed access to such material due to the
preservation of the secrecy of grand jury proceedings.
… [D]ocuments and recorded testimony presented to and
maintained by the grand jury and not included in the
presentment made in open court are not court records under
USCR 21 and therefore do not carry the presumption of public
access.
Id. at 684-85 (internal citations, quotation marks, and footnote omitted).
Mindful of all of the above, we turn to the documents requested by
WPXI in this case.4 Again, those documents are the application for a search
warrant and the authorization thereof, as well as the court’s order that
sealed attachments thereto. We begin our review with the threshold issue of
whether the search warrant and court order sought by WPXI are (1) public
judicial documents for purposes of the common law right of access, and/or
(2) documents for which experience and logic favor public access under the
First Amendment. We conclude that they are not.
The search warrant application submitted to the supervising judge of
the grand jury in connection with the grand jury investigation, the resulting
warrant, and the order that sealed the attachments to the warrant
application clearly are judicial documents under our Supreme Court’s
4 We exercise plenary review over the questions of law of whether the
common law or the First Amendment creates a presumptive right of access
to the documents in question. Upshur, 924 A.2d at 647; Smith, 123 F.3d
at 146.
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pronouncements. The documents in question were either used by a judge as
bases for a decision or embodiments of the judicial decisions made.
However, the documents are not public judicial documents. As the
law discussed above makes clear, grand jury proceedings are unlike the
proceedings at issue in Fenstermaker, PG Publishing, or Upshur to which
a constitutional presumption of openness attaches. Secrecy “is
indispensable to the effective functioning of a grand jury.” In re Dauphin
Cty. Fourth Investigating Grand Jury, 19 A.3d at 502. Pennsylvania law
includes statutes, rules, and cases that impose and maintain ongoing
secrecy regarding grand jury proceedings. Granting WPXI access to the
information and items sought via the subpoena would defeat the purpose of
secrecy: it would make public the subjects of the ongoing grand jury
investigation, disclose which provisions of the crimes code the grand jury
was investigating, and reveal to potential witnesses, targets, and persons
who might have access to similar materials stored at a different location the
precise nature of the items relevant to the investigation.
Furthermore, grand jury documents are not filed with the clerk of
courts; rather, the court controls the documents to maintain their secrecy.
Pa.R.Crim.P. 229. Simply put, there is not, nor has there ever been, any
public access to or oversight of grand jury proceedings such that a
presumption of openness attaches to the documents to which WPXI sought
access. Thus, WPXI’s common law claim fails as a matter of law.
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The First Amendment experience-and-logic test yields the same result.
As succinctly explained by the Third Circuit, the Unites States Supreme
Court’s 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.
Smith, 123 F.3d at 148. Hence, as a matter of law, no First Amendment
right of public access attaches to the grand jury documents WPXI sought to
inspect and copy in the instant case.
Because our resolution of the threshold legal questions under both the
common law and the First Amendment tests establishes that no public right
of access attached to the documents sought by WPXI, we need not consider
WPXI’s final question of 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.5
5 “In order for the appellate review of a trial court’s discretionary ruling to be
meaningful, the appellate court must understand the factual findings upon
which a trial court’s conclusions of law are based.” PG Publishing, 614
A.2d at 1109. Here, the trial court did not offer its case-specific reasoning
on the record or in its opinion, instead stating “that other factors existed in
support of nondisclosure in this case which this [c]ourt declined to state on
the record out of concern for violating the secrecy of the underlying grand
jury proceedings.” Trial Court Opinion, 7/23/2015, at 5. Had we reached
the opposite conclusion on the threshold legal issue, we would have been
required to remand the case for the trial court to disclose its reasoning. See
Upshur, 924 A.2d at 646 (“As the court did not develop its reasoning with
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2018
regard to [its exercise of discretion] in its Rule 1925(a) opinion, … we
remanded the case for preparation of an opinion specifying the rationale,
together with any necessary factual findings, supporting the discretionary
component of its ruling.”). For the sake of judicial economy, a trial court
faced with such concerns should detail its findings and rationale for this
Court and then seal the opinion.
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