Don’t Take ‘No’ for an Answer in Pursuit of Agency Records, Vol.12, No.5, CGJA Grand Jurors’ Journal, October 2011

ABSTRACT:  The CALIFORNIA GRAND JURORS' ASSOCIATION (CGJA), a 501(c)(3) nonprofit organization, publishes the Grand Jurors’ Journal.  The CGJA’s MISSION STATEMENT (Revised April  2014): “To promote, preserve, and support the grand jury system through training, education, and outreach.”  Don’t Take “No” for an Answer in the Pursuit of Local Agency Records, By Bill Trautman, Chair CGJA Legislative Affairs Committee, states, in part, “The United States Supreme Court has also affirmed that a grand jury cannot be required to justify the issuance of a grand jury subpoena by presenting evidence of good cause because the very purpose of requesting the information may be to determine the facts which would establish good cause. Therefore, such a requirement cannot lawfully be applied.” “An agency may also try to raise an objection to producing records pertaining to its employees on the basis that notice to the employee whose records are being sought must be given. Courts have readily recognized that notice to the employee would infringe on the need for confidentiality of grand jury proceedings. A requirement of notice to an employee seeking his or her permission for a grand jury review of a personnel record would be incompatible with the right of a grand jury to review confidential information. Johnson v. Superior Court, 15 Cal. 3rd 248, 254 (1975). The first question by an employee when asked to allow the grand jury to obtain his or her personnel file will be; “Why does the grand jury want it?” Obviously, that question cannot be answered without disclosing information about the investigation. Thus, Courts have held that there is no basis for requiring notice to the “consumer”/ employee for no other reason than the confidentiality strictures placed on the grand jury prevents it from giving the employee sufficient information to frame a meaningful objection.”   And importantly, “a grand jury seeks such records pursuant to the express direction of Penal Code sections 925 and 925a. While there are some exceptions to obtaining records, such as Welfare and Institutions Code section 827(a)(1)(P) (juvenile court records) where confidential requirements of such records may outweigh the grand jury’s investigative function, these exceptions are few. So don’t take “No” as an answer to your request for records from local governmental agencies. The law is on your  side!”

NOTE: "Civil" Grand Juries 

CGJA tries to avoid the use of the term "Civil" Grand Jury because the term is not recognized in California law and CGJA believes the use of the term as a shorthand reference is misleading. We prefer to use the following form - "(Name of County) Grand Jury."

REFERENCES:

Don’t Take ‘No’ for an Answer in Pursuit of Agency Records, By Bill Trautman, Chair CGJA Legislative Affairs Committee, Vol.12, No.5, CGJA Journal, October 2011, Page 9

When a Grand Jury Seeks Records of a Public Agency it is Not Required to Provide an Affidavit Establishing Good Cause, LIEBERT CASSIDY WHITMORE, August 10, 2011

Grand Jury Is Entitled To Police Department Documents, Including Peace Officer Personnel Information, Without A Showing Of Good Cause, LIEBERT CASSIDY WHITMORE, September 10, 2011