Lungren, 091296 CAAGO, AGO 96-307

• Case Date: September 12, 1996
• Court: California

DANIEL E. LUNGREN Attorney General CLAYTON P. ROCHE Deputy Attorney General AGO 96-307 No. 96-307 California Attorney General Opinion Office of the Attorney General State of California September 12, 1996          THE HONORABLE JAMES B. LINDHOLM, COUNTY COUNSEL, SAN LUIS OBISPO COUNTY, has requested an opinion on the following questions:          1. When a grand jury is conducting a civil "watchdog" investigation of a local police agency, does it have the right to examine peace officer personnel records, including citizens' complaints, or information compiled from such records, without first obtaining issuance of a subpoena or court order?          2. Must a grand jury be investigating a specific case or citizen's complaint in order to examine such records?          3. May a grand jury require that such records be provided without the elimination of officers' names or statements or other alterations?          CONCLUSIONS          1. When a grand jury is conducting a civil "watchdog" investigation of a local police agency, it has the right to examine peace officer personnel records, including citizens' complaints, or information compiled from such records, without first obtaining issuance of a subpoena or court order.          2. A grand jury need not be investigating a specific case or citizen's complaint in order to examine such records.          3. A grand jury may require that such records be provided without the elimination of officers' names or statements or other alterations.          ANALYSIS          In this opinion we are asked to examine a grand jury's civil function "to act as the public's `watchdog' by investigating and reporting upon the affairs of local government . . . ." (McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170; see Brooks v. Binderup (1995) 39 Cal.App.4th 1287, 1290.) The three questions presented for resolution concern the authority of a grand jury to investigate the operations of local law enforcement agencies. Under what circumstances may a grand jury examine peace officer personnel records, including citizens' complaints?          1. Subpoena or Court Order          The first question to be resolved is whether a grand jury must obtain the issuance of a subpoena or court order in order to review peace officer personnel records, including citizens' complaints. We conclude that such records must be produced for a grand jury's review without issuance of a subpoena or court order.          Preliminarily, we note that a grand jury has broad authority to investigate the conduct of local public officials, including peace officers. With respect to counties and certain special districts, Penal Code section 9251 provides in part:

"The grand jury shall investigate and report on the operations, accounts, and records of the officers, departments, or functions of the county including those operations, accounts, and records of any special legislative district or other district in the county created pursuant to state law for which the officers of the county are serving in their ex officio capacity as officers of the districts."

         Regarding cities and joint powers agencies, section 925a provides:

"The grand jury may at any time examine the books and records of any incorporated city or joint powers agency located in the county. In addition to any other investigatory powers granted by this chapter, the grand jury may investigate and report upon the operations, accounts, and records of the officers, departments, functions, and the method or system of performing the duties of any such city or joint powers agency and make such recommendations as it may deem proper and fit. . . ."

         With respect to special purpose districts and local agency formation commissions, section 933.5 provides:

"A grand jury may at any time examine the books and records of any special-purpose assessing or taxing district located wholly or partly in the county or the local agency formation commission in the county, and, in addition to any other investigatory powers granted by this chapter, may investigate and report upon the method or system of performing the duties of such district or commission."

         Accordingly, the Penal Code empowers a grand jury in its civil watchdog function to examine any records of cities, counties, and special districts. Such records would include peace officer personnel records, including citizens' complaints, in the custody of these public agencies.          Significantly, we note that the proceedings of a grand jury are confidential. The oath administered to grand jurors requires that each juror "not disclose any evidence brought before the grand jury . . . ." (§911.) Section 924.1 makes it a misdemeanor for a grand juror to willfully disclose "any evidence adduced before the grand jury" except when required by a court. In Farnow v. Superior Court (1990) 226 Cal.App.3d 481, 487-489, the court explained the need for secrecy in the performance of a grand jury's civil watchdog function:

"... As our Supreme Court stated in considering an issue regarding disclosure of evidence by a grand jury, [t]he secrecy of all grand jury proceedings is "deeply rooted in our traditions . . . .'" (McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1173, quoting Illinois v. Abbott & Associates, Inc. (1983) 460 U.S. 557, 572 [75 L.Ed2d 281, 293, 103 S.Ct. 1356].) Indeed, this tradition dates to the 12th century, explained as a requirement to prevent the escape of offenders; in the 17th century, secrecy came to be used to protect grand jurors from the influence of the king and 'for the most part, grand jury proceedings since that time have been closed to the public and records of such proceedings have been kept from the public eye.' (McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at p. 1173.) 'A number of interests are served by the "strong historic policy of preserving grand jury secrecy" {United States v. Sells Engineering, Inc. (1983) 463 U.S. 418, 428 [77 L.Ed.2d 743, 103 S.Ct. 3133]). As described by the United States Supreme Court, these are: "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 to inducements.

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