The Pennsylvania Superior Court has ruled in a case of first impression that records pertaining to grand jury proceedings, including search warrants and related documentation issued in connection with those proceedings, are not open to the public.

In a published opinion in In re 2014 Allegheny County Investigating Grand Jury, a three-judge panel of the court upheld a ruling by the grand jury supervising judge denying a motion by Pittsburgh-based television station WPXI seeking to intervene and access a search warrant and related documents.

Senior Judge Eugene B. Strassburger III, writing for the panel, said neither it nor the parties could find any prior Pennsylvania rulings address the public's right to view or copy grand jury documents or search warrants issued in connection with a grand jury investigation.

Instead, the panel looked to several cases in which state courts had upheld the public's right of access to documents related to criminal prosecutions, including an arrest warrant, a search warrant in a murder case and an audiotape that was played at a preliminary hearing in a homicide case but never admitted into evidence.

Strassburger, however, said the secrecy of grand jury proceedings compels a different result.

“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,” said Strassburger, joined by Judges Jacqueline O. Shogan and Judith Ference Olson.

The panel reached the decision on remand from the Supreme Court after the justices reversed the Superior Court's previous ruling dismissing WPXI's appeal as moot.

WPXI had initially sought the documents in the course of its reporting on allegations of improper sexual relations between faculty and students at Plum High School in Allegheny County. The station was ultimately able to obtain the documents after they were obtained and made public by another media outlet.

But the Supreme Court found that the Superior Court acted on insufficient information when it determined sua sponte that the appeal was rendered moot by the existence of unofficial copies. The justices remanded the case so the intermediate appellate court could determine whether WPXI had a right to access official copies of the documents.

On remand, Strassburger said that while the records WPXI sought are judicial documents, they are not public judicial documents and there is no common-law public right to access them because secrecy is essential to grand jury investigations.

“Furthermore, grand jury documents are not filed with the clerk of courts; rather, the court controls the documents to maintain their secrecy,” Strassburger said. “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.”

There is also no First Amendment right of access to grand jury documents, Strassburger continued, citing language from the U.S. Court of Appeals for the Third Circuit's 1997 ruling in United States v. Smith. In that case, the federal appeals court said the U.S. Supreme Court's 1979 ruling in Douglas Oil v. Petrol Stops Northwest “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.”

“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,” Strassburger said.

Counsel for WPXI, Walter P. DeForest III of DeForest Koscelnik Yokitis & Berardinelli in Pittsburgh, could not be reached for comment.