The RTKL and Grand Juries

In a recent appeal, the Office of Open Records confronted the issue of how Pennsylvania’s Right-to-Know Law intersects with the state’s Investigating Grand Jury Act.

The OOR’s Final Determination in Hockeimer v. City of Harrisburg (Docket No.: AP 2015-1793) held that:

“In the instant matter, it is clear that the requested records exist independently of any grand jury investigation. The Request seeks records, including financial records, created by the City and various City personnel over the course of several years for various purposes in relation to the City’s operations. There is no evidence demonstrating that any of the requested records were created for use by the grand jury. Accordingly … the requested records are subject to disclosure under the RTKL.”

The Investigating Grand Jury Act, as a general rule, prohibits “disclosure of matters occurring before the grand jury.” Thus, the meaning of the phrase “occurring before the grand jury” becomes very important in this analysis.

As the Final Determination held, “There is little authority available in Pennsylvania jurisprudence which clarifies the meaning of ‘occurring before the grand jury.’ Consequently, the OOR looks to federal law for guidance.” (The wording of the federal grand jury law is very similar to the wording of Pennsylvania’s.)

Under federal case law, “information does not become a matter occurring before a grand jury simply by being presented to the grand jury, particularly where it was developed independently of the grand jury.” Further, “it has been well-established in this Circuit for over 14 years that if documents exist independently of the grand jury process, they are not matters occurring before the grand jury for purposes of Rule 6(e).” (Federal Rule of Criminal Procedure 6(e) deals with the secrecy of grand jury proceedings.) And, “The mere fact that a particular document is reviewed by a grand jury does not convert it into a ‘matter occurring before a grand jury’ within the meaning of Rule 6(e).”

As a result of this analysis, the OOR ordered the City of Harrisburg to release the requested records.

According to a report on Pennlive.com, the City “will appeal the Office of Open Records ruling with the Dauphin County Court of Common Pleas.”

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