[1995/oagheade.htm]

OAG 95-17

May 10, 1995

Subject: Grand Jury Testimony

Written By: David E. Spenard

Requested By: Hon. Ray Larson

Syllabus: A transcript of grand jury testimony is a record subject to the exclusive control of the judiciary. Therefore, a person seeking the release of grand jury testimony must do so by motion to the court with control over the record.

Statutes construed: KRS 610.320; KRS 610.340; KRS 610.340(6)

OPINION OF THE ATTORNEY GENERAL

This opinion is in response to an inquiry from the Fayette County Commonwealth's Attorney raising several questions concerning the release of the transcript of testimony before the regular Grand Jury of the Fayette Circuit Court.

The first question asks whether there is any legal basis or precedent upon which a Commonwealth's Attorney could obtain an Order which would allow him to release the transcript of grand jury testimony to the public. "A grand jury is a part of the court and under judicial control, so there can be no doubt that a session of the grand jury is a 'proceeding in a circuit court.'" Greenwell v. Commonwealth, Ky., 317 S.W.2d 859, 861 (1958). Consequently, the grand jury testimony is a court record. The custody and control of such records is subject to the exclusive control of the judiciary. See Ex Parte Farley, Ky., 570 S.W.2d 617, 624, 625 (1978)(custody and control of court records not subject to statutory regulation and policy with respect to court records set by judiciary); also see York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991).

Secrecy has long been the general rule for grand jury testimony and proceedings. See Greenwell v. Commonwealth, 317 S.W.2d at 861; also see Branzburg v. Meigs, Ky., 503 S.W.2d 748 (1971) aff'g sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); cf. Douglas Oil v. Petrol Stops Northwest, 411 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)(secrecy policy for federal grand jury transcripts). There are, however, exceptions to this general rule. Specifically, the Supreme Court of Kentucky has promulgated RCr (Kentucky Rule of Criminal Procedure) 5.24 which provides as follows:

Subject to the right of a person indicted to procure a transcript or recording as provided by Rule 5.16(3), and subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony before it secret, except that counsel may divulge such information as may be necessary in preparing the case for trial or other disposition. [Emphasis added.]

There are two separate exceptions that permit disclosure of grand jury testimony. First, a person who has been indicted may procure a transcript. RCr 5.16(3). This exception is clearly inapplicable to the situation set out in the letter to the Office of the Attorney General. Additionally, per the plain language of RCr 5.24(1), a circuit court has the authority to direct the disclosure of grand jury testimony which is ordinarily kept secret. Accordingly, a Commonwealth's Attorney could apply to the circuit court pursuant to this rule for permission to disclose grand jury testimony if he chooses to do so.

One should note, however, that while the exact nature of the authority of the circuit court under the current version of RCr 5.24(1) is unclear, the history of the rule does not manifest an intent to promote a policy of public disclosure. Prior to an amendment effective September 1, 1981, RCr 5.24(1) expressly provided that grand jury testimony could be disclosed only if "preliminary to or in connection with a judicial proceeding." This limit derived from Section 110 of the Kentucky Criminal Code of Practice, RCr 5.24(1)'s forerunner, first effective July 1, 1854. Per Section 110 (subsequently renumbered Section 113, effective January 1, 1877, and thereafter amended to include false swearing, effective March 18, 1892) a member of the grand jury could be required to disclose the testimony of a witness for impeachment at trial or in a proceeding for perjury. See Pritchett v. Frisby, 112 Ky. 629, 66 S.W. 503, 504 (1902)(fact that legislature specified the instances wherein grand jurors could be required to disclose grand jury testimony excluded idea that it intended to permit disclosure in instances other than those specified).

The general policy set forth by RCr 5.24 specifies secrecy; therefore, the party seeking disclosure bears the burden of establishing the necessity and propriety of its disclosure request. Furthermore, we note that even if a circuit court has the power to direct disclosure of grand jury testimony under RCr 5.24(1), it does not necessarily follow that such authority will be exercised in favor of a person seeking disclosure of grand jury testimony.

The second question asks who would have legal standing to object to the release of the Grand Jury transcript and upon whom should notice be served if a motion to release is filed. CR (Kentucky Rule of Civil Procedure) 19.01, applicable via RCr 13.04, sets forth the guidelines for determining parties indispensable to an action. Also see, generally, Bertelsman & Philipps, Kentucky Practice, 4th Ed., Civil Rule 19.01. Per CR 19.01(b)(i), a person who has an interest that may be impaired or whose ability to protect that interest may be impeded should be joined as a party if subject to service of process.

The list of indispensable parties depends upon the unique circumstances of each case. The subject of the grand jury testimony may be such a person. See Bowling v. Sinnette, Ky., 666 S.W.2d 743, 745 (1984)(Grand Jury has no right to file a report that reflects on the character of a citizen or public officer when no indictment is returned against that person). If the Grand Jury refers the matter to the next grand jury, then any official who may be required to take official action based upon the grand jury testimony may be such a person. See Matthews v. Pound, Ky., 403 S.W.2d 7 (1966). Even if not referred, the same logic applies if the matter is still under active investigation. Finally, the victim, or the victim's legal representative, may be such a person. Because there is no legal precedent establishing who the necessary parties are with respect to a request for release of grand jury transcripts, a prudent course of action would be to provide notice to all parties who participated in or were directly affected by the grand jury proceedings.

Also note that there is precedent indicating that disclosure of court records may be sought by ex parte motion. See Ex Parte Farley, 570 S.W.2d at 618, 619 (request for inspection of and right to copy court records treated and practiced via ex parte motion); also see Ex Parte Auditor Of Public Accounts, Ky., 609 S.W.2d 682 (1980)(request for records under judicial control by ex parte motion in forum which could hear the action).

The third question asks whether grand jury testimony containing references to Juvenile Court proceedings must be deleted before a transcript is released. The Unified Juvenile Code mandates a policy of secrecy for juvenile records and proceedings. See F.T.P. v. Courier-Journal and Louisville Times Co., Ky., 774 S.W.2d 444, 446 (1989); also see KRS 610.320; 610.340. A person may not obtain or seek to obtain any records that have been made confidential pursuant to the Unified Juvenile Code except by proper motion to a court of competent jurisdiction. KRS 610.340(6). Therefore, absent a court order authorizing disclosure, references to Juvenile Court proceedings may not be released. Thus, any such references would have to be deleted.

The fourth question asks whether testimony that identified a person who provided confidential information to the police could be redacted from a grand jury transcript made public. There is no "fixed rule" governing the disclosure of the identity of a confidential informant. See, for example, Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639, 646 (1957). Hence, disclosure of such information depends upon the unique circumstances of the case. Schooley v. Commonwealth, Ky., 627 S.W.2d 576, 578 (1982). Absent litigation wherein disclosure is constitutionally or otherwise required (see, for example, Burks v. Commonwealth, Ky., 471 S.W.2d 298, 301 (1971)), redaction of the identity of a person who provided confidential information lies within the sound discretion of the trial court. Presumably a request to redact testimony would be granted upon a showing that redaction is reasonably required to protect the identity of the informant.

The fifth question asks whether release of the Grand Jury testimony in this case would create a precedent which would jeopardize the secrecy of future Grand Juries. Each case is unique, and the impact that a case will have depends upon a variety of factors. Hence, it is difficult to gauge the impact of a release of the Grand Jury testimony in the situation described in the letter to this Office. Unless the exercise of court authority to release Grand Jury testimony is limited to extraordinary circumstances, releasing such testimony would potentially have an impact upon the secrecy of future Grand Juries.

In terms of establishing a precedent, all we can say is that a ruling from the Fayette Circuit Court would create a precedent in Fayette County, but the precedent would not bind the court in other cases. We are aware of no other instances in which a prosecutor has requested, or a court has allowed, release of a grand jury transcript to the public.

The sixth question asks whether there is any legal basis upon which it can be anticipated that releasing a transcript of the Grand Jury proceedings with an appropriate Court Order could result in civil litigation against the Commonwealth Attorney's office or any member of the Grand Jury. It is impossible to conceive all potential scenarios under which a party might initiate civil litigation. Questions concerning liability always depend on the attendant circumstances, and it is impossible to foresee every eventuality. Likewise, the degree of immunity applicable varies with the function, or role, the person is serving under at the time of their conduct. Generally speaking, prosecutors, judges and grand juries have immunity as long as they act within their authority, but there is nothing to preclude litigation.

CHRIS GORMAN

ATTORNEY GENERAL

David E. Spenard

Assistant Attorney General