McCLATCHY NEWSPAPERS v. SUPERIOR COURT (1984)

OPINION

INTRODUCTION

In 1983 Fresno County bought a computer service contract from Systems and Computer Technology Corp. (SCT) for $1.37 million.   The 1983–1984 grand jury conducted a lengthy investigation of the circumstances surrounding the awarding of the contract and certain alleged irregularities in the relationship between Fresno County and SCT.   This investigation was carried out as an exercise of the grand jury's “watchdog” power to investigate county affairs (Pen.Code, § 925 et seq.) ¹ and with the assistance of the district attorney's office.   Some 62 witnesses were examined under oath over a period of 6 months producing several thousand pages of transcripts and documents.   John Rust, associate general manager of SCT, was granted immunity from prosecution before he fully testified.  (Gary Provost of SCT claimed Fifth Amendment rights, was not offered immunity and did not testify.)

When the grand jury filed its annual report with the superior court, it gave a summary description of its investigation, made certain findings of fact and recommendations, and then stated in section G of its report:

“G. Public Records

The Grand Jury will make public the following records and documents which the Grand Jury believes are relevant to the matters referred to in this report and to support the recommendations herein:

“1. District Attorney's report to the Grand Jury

“2. The transcripts of the hearings before the Grand Jury

“3. Pertinent interviews conducted by the District Attorney which were made available to the Grand Jury

“4. Documents relevant to the matters discussed in the Grand Jury report and the District Attorney report.”  (Emphasis added.)

The presiding judge of the superior court ruled that section G of the report violated Penal Code sections 939.9 and 939.1.   The court thereupon ordered section G stricken from the report and stated in its order that the records and documents referred to therein “shall be forthwith sealed, marked ‘confidential’ and held in safekeeping by the county clerk's office until further order of the court.”

 McClatchy Newspapers et al., Capital Cities Communications et al., and the 1983–1984 Fresno County Grand Jury (represented by the Fresno County District Attorney) have all filed petitions for writ of mandate or, in the alternative, writ of prohibition, attacking the above order.   These petitions have been consolidated for hearing in this case.²

Also, two of the witnesses whose testimony is included in the section G materials have intervened to support the respondent court's order.   One is an unnamed county employee (Doe), who alleges that he was promised that his testimony would remain confidential.   The other is John Rust, an SCT executive who received criminal immunity for his testimony.   He alleges that he was “given to understand” that his testimony would be kept secret, but primarily argues for keeping other witnesses' testimony secret to avoid biased, one-sided “nonjudicial punishment.”

 The basic question presented by the trial court's suppression of the documents and transcripts contained in section G of the grand jury report and one of first impression in California is whether a grand jury has the right to include in its report the evidence it considered in making its report.   Specifically, may the grand jury go beyond making factual findings and recommendations by including in its report transcripts of the testimony of witnesses who appeared before it during its investigation as well as supporting documents presented to the jury including the district attorney's report of his investigation and interviews of witnesses?   We conclude under the authority of People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761 that only when the grand jury report goes beyond some explicit or otherwise unmistakably clear statutory limitation on the jury's power to report does the superior court have the right to refuse to file the offending portions of the report.   We find no such limitation in the present case.

 We further conclude that a grand jury may be estopped from publishing the testimony of a particular witness or any documents presented to it by the witness during its investigation if the jury has clearly promised the witness that his testimony or the documents would remain confidential, the witness relies on such a promise by giving testimony or providing documents, and the publication of the testimony or documents would substantially injure the witness.   Such a promise was given to the unnamed county employee in this case.   Accordingly, his testimony in response to the assurance of confidentiality shall remain sealed.   We reject Mr. Rust's similar claim because the record does not contain a clear promise of confidentiality to him.

DISCUSSION

 We begin our analysis with a statement of some fundamental principles which will guide us in our review of the statutory scheme governing grand jury reports.   First, this court is not a policymaking body.   Unlike the Legislature, we cannot determine the dimensions of the grand jury's power to report on a civil investigation on the basis of our personal views of the wisdom of the jury's action or the social consequences to individuals who may be affected by the report.

 Second, the grand jury is not just a “creature of statute” as argued by respondent and the unnamed real party in interest.   In People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761, in analyzing the relationship of common law principles and the California grand jury system, the court quoted approvingly from Fitts v. Superior Court (1936) 6 Cal.2d 230, 57 P.2d 510 which holds that, “ ‘The [California] grand jury system is a product of the common law․  The members of the [1849] constitutional convention ․ must have had in mind the grand jury as known to the common law․  The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law.   It is in no sense a statutory grand jury as distinguished from the common-law grand jury ․’ ”  (13 Cal.2d 430 at p. 440, fn. 11, 119 Cal.Rptr. 193, 531 P.2d 761.)   Thus, it may be said that the common law still determines to a large extent the powers of California grand juries.  (See Coffey v. Superior Court (1905) 2 Cal.App. 453, 83 P. 580;  see also Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 Cal.L.Rev. 251, 262.)

While the reporting power of the common law grand jury as distinguished from its indictment or “presentment” power is less clear insofar as what may be included in the details of the report, it is undisputed that grand jury reports were issued without charging crime “during the years when the grand jury was developing as an instrument against despotism.”  (See cases cited in Kuh, The Grand Jury “Presentment” Foul Blow or Fair Play?  (1955) 55 Colum.L.Rev. 1103 at pp. 1109–1110.)

 Although in a sense the grand jury operates as part of the judicial branch of government, it obviously represents the people and not the judiciary insofar as its investigative and reporting powers are concerned.   Again, our Supreme Court quotes from Monroe v. Garrett (1971) 17 Cal.App.3d 280, 284, 94 Cal.Rptr. 531, “ ‘In our system of government, a grand jury is the only agency free from possible political or official bias that has an opportunity to see ․ the operation of government ․ on any broad basis.   It performs a valuable public purpose in presenting its conclusions drawn from that overview.   The public may, of course, ultimately conclude that the jury's fears were exaggerated or that its proposed solutions are unwise.   But the debate which reports ․ provoke [can] lead only to a better understanding of public governmental problems.’  (See generally Olson, Ombudsman on the West Coast:  An Analysis and Evaluation of the Watchdog Function of the California Grand Jury (1968) Cont.Ed.Ser., Mich.St.U., Institute for Community Devel. Series.)”  (People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at p. 437, 119 Cal.Rptr. 193, 531 P.2d 761, emphasis added.) ³

 Finally, we observe that the people of California have a basic right to know about the workings of their state and local government including the activities of public officials in the performance of their official duties.   This right to know is implicit in article II, section 1 of the California Constitution which provides, “All political power is inherent in the people.   Government is instituted for their protection, security, and benefit ․” (emphasis added) and is explicit in Government Code section 6250 which provides that “the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”  (Emphasis added.)

As one writer has put it, “Freedom of information about governmental affairs is an inherent and necessary part of our political system.   Ours is a system of self government—and self government can work effectively only where the people have full access to information about what their government is doing.”   (Hennings, Constitutional Law:  The People's Right to Know (1959) 45 A.B.A.J. 667, 668.)

 While the California Public Records Act (Gov.Code, § 6250 et seq.) facilitates this right to know for individuals by opening public records for their review, the investigative and reporting function of the grand jury furthers this right for the community as a whole.   Chief Justice Vanderbilt of New Jersey articulated this point over 30 years ago:

“If presentments of matters of public concern were found necessary in the public interest in the relatively simple conditions of English and colonial life three centuries ago, how much more essential are they in these days when government at all levels has taken on a complexity of organization and of operation that defies the best intentions of the citizen to know and understand it.   What is not known and understood is likely to be distrusted.   What cannot be investigated in a republic is likely to be feared.   The maintenance of popular confidence in government requires that there be some body of laymen which may investigate any instances of public wrongdoing․

“Thus grand jury presentments of public affairs serve a need that is not met by any other procedure.   The grand jury provides a readily available group of representative citizens of the county empowered, as occasion may demand, to voice the conscience of the community.   There are many official acts and omissions that fall short of criminal misconduct and yet are not in the public interest.   It is very much to the public advantage that such conduct be revealed in an effective, official way.   No community desires to live a hairbreadth above the criminal level, which might well be the case if there were no official organ of public protest.   Such presentments are a great deterrent to official wrongdoing.   By exposing wrongdoing, moreover, such presentments inspire public confidence in the capacity of the body politic to purge itself of untoward conditions.”  (In re Presentment by Camden County Grand Jury (1952) 10 N.J. 23, 65 [89 A.2d 416, 443–444].)

 We subscribe to the general principle that the grand jury's reporting power is coextensive with its investigative power in order that the people's right to know about the affairs of their government not be thwarted.  “Law and common sense combine to compel the conclusion that, if a grand jury is authorized and bounden to inquire of public offense, a necessary element of this power must be the power and duty to disclose the result of the inquiry.”   (Irwin v. Murphy (1933) 129 Cal.App. 713, 717, 19 P.2d 292.)

 We assume, without deciding the point, that the Legislature has the power to impose reasonable limitations on the exercise of the grand jury's watchdog function including the jury's power to report the matters it deems important (see Gillett-Harris-Duranceau & Associates, Inc. v. Kemple (1978) 83 Cal.App.3d 214, 221, 147 Cal.Rptr. 616); ⁴  however, legislative intent to impose such limitations must be stated clearly.   Anything short of this standard would allow a fundamental right proclaimed by the Legislature and grounded on the state Constitution to be abrogated by implication—an unacceptable result.

 The Legislature has met this standard in the Public Records Act (see Gov. Code, § 6254 exempting particular records from disclosure) and in the statutory scheme governing grand jury reports.  (See Pen.Code, § 939.9 prohibiting recommendations and reports except on the basis of the grand jury's own investigation, and Pen.Code, §§ 924, 924.1 and 924.2 prohibiting individual jurors from disclosing the deliberation or vote of the jurors or the evidence presented to the jury).   But the Legislature has not restricted the grand jury's power to report its own proper investigation.   Indeed, the Legislature has recognized the possibility that a grand jury report may be unfair, unfounded or libelous.   Instead of barring the publication of such a report, which would fully protect the alleged victims but would also encourage judicial censorship, the Legislature has limited the individual juror's privilege against civil actions.  (Pen.Code, § 930, see Gillett-Harris-Duranceau & Associates, Inc. v. Kemple, supra, 83 Cal.App.3d 214, 147 Cal.Rptr. 616.)   This provides an incentive for accuracy and care in the preparation of the report but does not limit the jury's power to report.   It also demonstrates that the grand jury's power to report does not depend on a court's evaluation of the basis for, or propriety of, the report's content.

From this analysis, we conclude that any uncertainty in a statute regarding the parameters of the jury's reporting power should be construed to favor the jury's right to report.   We should defer to the jury's exercise of discretion in deciding what to report absent some explicit or otherwise unmistakably clear indication to the contrary by the Legislature.

This rule is in accord with the Supreme Court's decision in People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761.   In that case, the Supreme Court decided the single question of whether the superior court had any authority “under any circumstances” (emphasis added) to review a proposed grand jury report before filing.   (Id., at p. 442, 119 Cal.Rptr. 193, 531 P.2d 761.)   The court rejected the “absolute denial of authority” sought by that grand jury.  (Ibid.)  It noted that although there is no statute which explicitly authorizes the superior court to refuse to accept an unauthorized report, such authority is implicit in the statutory provisions establishing definite, albeit broad, limits for the grand jury's reporting power.   In the absence of judicial authority to refuse to file an unauthorized report, the established statutory limits would be meaningless.  (Id., at p. 439, 119 Cal.Rptr. 193, 531 P.2d 761.)   Furthermore, such judicial authority is confirmed by the established common law doctrine in this area.  “[T]he numerous cases throughout the United States which have addressed the question uniformly recognize that under the common law the court which convenes a grand jury has the authority to refuse to file a report that violates governing legal standards.”  (Id., at p. 440, 119 Cal.Rptr. 193, 531 P.2d 761.)

Nevertheless, the Supreme Court carefully noted that “the superior court's reviewing authority in this area is narrowly circumscribed, for the court may only refuse to file a proposed report if it exceeds the grand jury's lawful reporting powers.”  (Id., at p. 441, 119 Cal.Rptr. 193, 531 P.2d 761, emphasis added.)   The court cited two situations where this would occur:  (1) when a grand jury investigates matters outside its own county, i.e., “roam[ing] at will throughout the state or country reporting on what it might view as shortcomings in distant locales” (id., at pp. 437–438, 119 Cal.Rptr. 193, 531 P.2d 761);  and (2) when a grand jury adopts the recommendation of some other, perhaps partisan organization without conducting its own investigation in violation of Penal Code section 939.9 ⁵ (id., at pp. 439–440, 119 Cal.Rptr. 193, 531 P.2d 761).

The Supreme Court then said, “The superior court must respect the grand jury's independence of judgment;  the court has no authority either to impose its own views on the grand jury or to suppress a report simply because it considers it ill-advised, insufficiently documented or even libelous.”  (Id., at p. 439, 119 Cal.Rptr. 193, 531 P.2d 761, emphasis added.)

To further narrow the reviewing power of the superior court, the Supreme Court continued in a footnote to describe the court's reviewing power as an application of “the established common law rule that a court may prevent one of its instrumentalities from taking action explicitly prohibited by statute ․”  (Id., at p. 442, fn. 14, 119 Cal.Rptr. 193, 531 P.2d 761, emphasis added.)   While this language is dicta, it is persuasive evidence that the Supreme Court viewed its holding as extremely narrow—that the power to suppress a report only exists when the report violates some explicit statutory prohibition.

With these fundamental principles in mind, we turn now to the specific arguments made by respondent superior court and real parties in interest Rust and Doe to support the order striking section G from the grand jury report.

I. Does section G violate Penal Code section 939.1?

 The superior court's order states that section G violates Penal Code section 939.1,⁶ but does not provide any reasons for this conclusion.   Respondent's briefs, however, contain the following arguments supporting the court's finding:

(a) The grand jury's reporting methods are narrowly defined by statute;  Penal Code section 939.1 is one of the narrowly defined ways of making investigatory proceedings public so if it is not used, publication of testimony must be illegal.

(b) Publication essentially makes the grand jury's investigation into a public session without complying with Penal Code section 939.1.

Respondent's arguments must be rejected.   First, as we have already explained, the grand jury's power to report, i.e., to communicate to the public the facts produced at the investigation is so fundamental that it may be restricted only by an explicit statutory directive or at least by a directive that is so clear that reasonable minds may not differ as to the legislative intent.   This certainly is not the case with section 939.1 as applied to a report.   Restriction by implication will not suffice (People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 430 at pp. 441–442, fn. 14, 119 Cal.Rptr. 193, 531 P.2d 761), and the implication advocated by respondent is a strained one at best.

Second, a contrary inference may be drawn from section 939.1.   The statute provides a way to make proceedings public while they are in progress;  while this impliedly restricts other ways of making ongoing proceedings public, it does not affect the grand jury's power to publish a report after proceedings are completed.   To the contrary, section 939.1 suggests that the Legislature recognizes the value of full disclosure of an investigation involving alleged corruption, misfeasance or dereliction of duty of public officials.   Publishing evidence in a report after the investigation is completed is another way to make the facts public without disrupting an ongoing investigation.   Making a proceeding public while it is in progress is not the same as releasing transcripts afterward.   In public sessions, one witness can watch or read about another's testimony and adjust his story accordingly;  publication of testimony after an investigative proceeding is over cannot have this effect.   Publication after an investigative proceeding is complete serves the public interest by opening official behavior to review, while a public session involving the same witnesses and the same evidence would be counter-productive, aid in the concealment of evidence and create unnecessary pressures on the grand jury's deliberations.

We assume the grand jury's decision to make its evidence and testimony public was motivated by its evaluation of this evidence and its judgment that this material should be open to public scrutiny.   The jury stated in section G that it was making the evidence public because “[it] believes [it is] relevant to the matters referred to in the report and to support the recommendations herein.”  (Emphasis added.)   This is a very different judgment than that contemplated in section Penal Code 939.1.   The decision to open a grand jury session to the public is based on guesswork.   To comply with section 939.1, the grand jury, the district attorney or the Attorney General, and the superior court must all agree in advance that the testimony will be appropriate for publication.   But publication in a report after an investigation is complete only requires the grand jury to evaluate evidence and testimony it has already received.   The latter judgment is obviously much easier to make.

II. Does section G violate Penal Code section 939.9?

 The superior court's order also states that section G violates Penal Code section 939.9.⁷  This section requires all grand jury reports to be based on the grand jury's own investigation.

All of respondent's arguments give an extremely broad reading to the prohibition in section 939.9.   Section G purports to “make public” a range of documents and transcripts, it does not explicitly “adopt” anything as a report of the grand jury.

The section G documents, including the interviews of witnesses by the district attorney, constitute evidence used by the grand jury in its investigation.   Making them public, in effect, is the same as reporting, “this is what we were told [section G] and these are our findings and recommendations [the rest of the grand jury report].”  Section 939.9 is irrelevant to this direct exercise of the grand jury's reporting function.   Publication of the section G documents is logically and functionally the same as the numerous paraphrases and apparent quotes from testimony and evidence that appear, unchallenged by respondent, in the rest of the grand jury report.⁸  Respondent offers no rational distinction between the use of these quotations, which it accepted without question, and publication of the materials “made public” in section G.   If it is legal to paraphrase or to quote a witness in the report, why is it illegal to open his entire testimony to view so that the paraphrased statement or the quote can be seen in context?   Respondent never answers this question.

We finally note that releasing the district attorney's report may not be considered an “adoption,” under section 939.9.   While the district attorney's report is arguably a more detailed version of the grand jury report already published, naming names and pointing out specific inconsistencies and apparent dissimulation on the part of individual witnesses, it is also a summary and description of the grand jury's own investigation.   Because of this latter aspect, section 939.9 is not clearly violated.

III. Does section G violate any other statutory limitation on the grand jury's report?

No statutory provision explicitly limits the grand jury's power to decide what to put in its reports.   Respondent's arguments are based on the absence of any specific statute giving the grand jury power to release evidence and transcripts of testimony.   Respondent and the real parties involved in the case concede that Penal Code sections 924 and 924.1 ⁹ apply to individual grand jurors, not to the panel as a whole.

 The unnamed county employee (Doe) seems to argue that Penal Code section 933 ¹⁰ requires superior court approval of a grand jury's report prior to filing.   But a reading of section 933 reveals no such requirement.   This section only requires the grand jury to submit its final report to the court for filing.   Nothing in it even suggests an editorial power in the court.

 John Rust argues that Penal Code section 924.4 ¹¹ limits the grand jury's power to release testimony.   This section gives the grand jury and the superior court the right to release transcripts to succeeding grand juries.   Rust argues that this narrow power to release transcripts implies that any other release would be improper.   But section 924.4 is designed for situations where the grand jury chooses not to release evidence or testimony to the public in its report.   It would then need specific statutory authorization to pass the documents on to succeeding grand juries.

 Doe also argues that section G would violate the grand juror's oath, found in Penal Code section 911.¹²  This oath, like section 924.1, ante, obviously applies to individual grand jurors, and its prohibition is intended to prevent leaks about pending investigations.   It does not control the grand jury's reporting power.

Although there is language in People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761 which limits the grand jury's investigatory power to specifically enumerated fields (id., at p. 437, 119 Cal.Rptr. 193, 531 P.2d 761), no one has claimed that the SCT investigation was improper.   These petitions only involve the form and content of the grand jury's report.   Nothing in the statutes or cases cited by respondent suggests, in spite of respondent's assertion to the contrary, that the form of report employed by the grand jury is specifically controlled by statute.   Respondent cites Gillett-Harris-Duranceau & Associates, Inc. v. Kemple, supra, 83 Cal.App.3d 214, 147 Cal.Rptr. 616, for this claim, but that case only upholds Penal Code section 930's legislative limitation on grand jurors' “judicial privilege” defense.   Other cases only restrict the grand jury's power to hire experts to assist in the investigations or limit the investigations to those areas specified by statute.  (Allen v. Payne (1934) 1 Cal.2d 607, 36 P.2d 614;  Co. of Fresno v. Roberson, M. & Co. (1954) 124 Cal.App.2d Supp. 888, 269 P.2d 252;  Board of Trustees v. Leach (1968) 258 Cal.App.2d 281, 65 Cal.Rptr. 588.

Our holding that the grand jury's power to report is coextensive with its power to investigate absent clear statutory limitations compels the conclusion that the proposed report is lawful.

IV. Does Penal Code section 933 restrict the report of the grand jury on public affairs to the making of “findings and recommendations”?

 Penal Code section 925 requires the grand jury to “investigate and report on the operations, accounts, and records of the officers, departments, or functions of the county ․”  (Emphasis added.)   This section clearly authorizes the SCT investigation and requires the grand jury to report on its investigations, but does not define the form or content of the report.   Section 925a authorizes investigation and a report on the needs of joint power agencies, section 927 authorizes a report on the need to change the salaries of elected officials, and section 928 authorizes a report on the needs of county officers.

None of these reports are restricted, implicitly or explicitly, by statute.

Section 933, subdivision (a) requires a grand jury to submit “a final report of its findings and recommendations that pertain to county government matters other than fiscal matters” to the presiding judge of the superior court.   Seizing on this “findings and recommendations” language, respondent argues that all evidentiary material should be excluded from the grand jury report.   This argument is a red herring.

There is no reason to construe the language of section 933, subdivisions (a) and (b) as a restriction on the grand jury's power to report.   Taken literally, this language only specifies that the grand jury's final report must include annual findings and recommendations.   It insures that reports on county affairs will be specific and advisory, not merely descriptive.

 It is not clear that the reports described in section 933 are the same as the reports required by section 925.   Of course, one report could, and normally does, fulfill both functions, but a grand jury could file a general descriptive report on its investigations pursuant to section 925 and then also file separate sets of findings and recommendations for official comment pursuant to section 933.   The purpose of the section 933 reports is to advise public officials and to compel a public response to the grand jury's recommendations.   The purpose of the section 925 reports is more general:  to report the outcome of the grand jury's investigation.  Section 925 does not indicate who is to receive this report, but it seems to be a report to the public at large.

This distinction between the general report on the grand jury's investigation (§ 925) and the grand jury's report of findings and recommendations to the board of supervisors (§ 933) is reinforced by their separation into two distinct sections of the Penal Code.   An interesting by-product of this separation is its effect on the grand juror's privilege against civil actions.  Section 925 precedes section 930.  Section 930 states that “[i]f any grand jury shall, in the report above mentioned, comment upon any person or official who has not been indicted by such grand jury such comments shall not be deemed to be privileged.”  (Emphasis added.)  Section 933's report of “findings and recommendations” is excluded from section 930 because it follows section 930 in the code—raising an inference that mentioning an individual in the findings and recommendations is privileged.

 This distinction makes sense.  Section 930 contemplates publication of the grand jury's report on its investigation.   But the (§ 930) limit on privilege provides a necessary incentive for the grand jury to carefully weigh the accuracy and effect of their report.   The findings and recommendations to public bodies (§ 933) are a different matter.   While they are also presumably available to the public, their direct and primary purpose is to promote improvements in county government by requiring an articulated response from county officials.   Recognizing that this purpose should not be inhibited by fear of libel or other civil actions, the Legislature placed the “findings and recommendations” language of section 933 after section 930, thus removing it from the latter section's purview.

Respondent's argument from section 933's “findings and recommendations” language is inconsistent with respondent's action.   The parts of the grand jury report which were not sealed or “stricken” contain far more than mere “findings and recommendations” as do other routinely accepted grand jury reports.   If respondent's section 933 argument were accepted, the court would have had to excise most of the report it accepted, as well as the majority of other reports it has accepted in the last several years.

We have obtained copies and take judicial notice of Fresno County Grand Jury reports for 1976 through 1981.  (Evid.Code, §§ 452, 459.) ¹³  Each of these reports contains the report of an outside auditor, letters and other exhibits which could be described as evidence.   All of the reports include more than “findings and recommendations.”

It is obvious that the “findings and recommendations” language in section 933 does not restrict the general reporting power of the grand jury under section 925.

V. Promissory estoppel.

Both John Rust and the unnamed county employee (Doe) claim they testified after having been promised confidentiality and that releasing the section G documents would injure their reputation, professional standing and other interests.   John Rust (the SCT executive directly involved in the actions most deeply questioned by the grand jury) was given immunity from prosecution during the investigation.   His declaration does not claim direct promises of confidentiality by the grand jury itself, but it does claim that he believed that his testimony would be kept secret because the district attorney made assurances to SCT's attorney to the effect that SCT documents furnished to the grand jury would not be released.   This amounts to an implied promissory estoppel claim for equitable relief.

The unnamed county employee (Doe) does claim to have received direct promises of confidentiality from the grand jury.   The record supports this claim.   He did testify, but said nothing consequential.   When individual grand jurors took over the questioning, they asked him a question about his personal opinion concerning a coworker.   When he hesitated, a grand juror said, “What you say is not going to go out of this room unless you tell somebody.”   Doe then gave his opinions.   One of these opinions might be embarrassing to a particularly sensitive individual.

The first Restatement of Contracts section 90 states the doctrine of promissory estoppel:  “A promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.”  (See also 1 Witkin, Summary of Cal.Law (8th ed. 1973) Contract, section 189, pp. 174–175.)

 To be enforceable under this theory, a promise must be clear and unambiguous and must cause substantial justifiable reliance by the promisee.  (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 891, 131 Cal.Rptr. 836;  Blatt v. University of So. California (1970) 5 Cal.App.3d 935, 943, 85 Cal.Rptr. 601.)   To justify enforcement of the promise, the promissee normally has to show that he will be harmed by a failure to keep the promise.   This is particularly true when the party to be bound is a government entity like the grand jury;  then, the court must conclude that the injustice from failing to enforce the promise outweighs any negative effect on public interests or policy that would result from enforcing the estoppel.   (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496–497, 91 Cal.Rptr. 23, 476 P.2d 423.)   If all of these conditions are met, the remedy is enforcement of the promise.  (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 649, 39 Cal.Rptr. 731, 394 P.2d 571.)

 Rust's promissory estoppel argument fails because he does not allege a clear and unambiguous promise to keep his or anyone else's testimony confidential.   He relies on assurances made to SCT's attorney regarding SCT's documents and has not produced any evidence direct promises of confidentiality to himself.   He may be embarrassed by details of his own testimony, but he has received immunity from criminal prosecution in exchange for the same testimony.   The immunity promised, however, does not extend to immunity from embarrassment.

The unnamed party (Doe) does rely on explicit direct promises from the grand jury itself.   These promises are in the record of his testimony.   The record also shows that he gave open responsive answers to questions in reliance on these promises.   If he had not believed these promises, he might have kept his personal opinions to himself.

The questions of damage and the balance of private injustice to Doe against the public policy supporting the grand jury's freedom to report are difficult questions, complicated by the fact that the issue is one of confidentiality.   We cannot fully discuss the facts in this type of case without rendering the question moot.

 We must balance the value of the grand jury's untrammelled right to report on investigations against individual witnesses' right to rely on promises of confidentiality.  (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 496–497, 91 Cal.Rptr. 23, 476 P.2d 423.)   This abstract approach is necessary because the enforceability of such promises should not depend on the importance of the answers the witness gives after the promise is made.   If it did, parties contesting the estoppel issue could not present meaningful arguments without breaching the confidentiality at issue and rendering the case moot.   Other parties seeking access, like the media petitioners in this case, would be deprived of due process because they could not be informed of the relevant facts without rendering the case moot.   Also, the normal process of open judicial review could be affected by inhibiting appellate courts from stating the true reasons for their decisions.   In short, confidentiality cannot be preserved when the content of the testimony involved determines the confidentiality issue.

 Two arguments convince us that direct grand jury promises of confidentiality should be enforceable.   First, the grand jury would lose much of its image of integrity and fairness if it could make such direct promises and then renege, without explanation.   Since government sets an example with its conduct, it must obey its own laws.  (Olmstead v. United States (1928) 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, dis. opn. by Brandeis, J.)   Preserving this integrity and fairness in government is the purpose of grand jury “watchdog” investigations in the first place, so the grand jury itself must be bound by its own promises.

Second, allowing the grand jury to renege on direct promises of confidentiality could dry up future sources of grand jury information.   If a witness knew that such a promise would not be enforced, it would have little persuasive effect.   Contempt remedies and promises of immunity would not be effective substitutes, especially when grand jurors are seeking a witness' impressions or personal opinions.

 The estoppel, however, is limited to carrying out the exact promise made, i.e., sealing the testimony given by the witness in response to the promise of confidentiality.   Therefore, only the very limited testimony given by Doe in response to the grand juror's assurance of confidentiality shall remain sealed.   No estoppel compels sealing any other witness' testimony.¹⁴

 Doe has also filed a motion asking that his identity as a party in this proceeding be kept secret.   He is afraid that if his name becomes known, people will speculate about the contents of his testimony, and he will suffer the same injuries as if his testimony were released.   This argument will not hold up.   When Doe chose to make use of a public forum, he accepted the risk that his identity might become known.   No one promised him that he could intervene in this action without revealing his identity as a party.   The simple fact that he was a witness before the grand jury is not a secret, nor the subject of a clear and unambiguous promise of secrecy.   We have held that we will enforce direct promises of confidentiality by the grand jury, but we reject the claim that this promise extends to Doe's identity or other parts of the section G materials.   While we see no need to publicize his name and choose not to do so here, we cannot prevent others from publicizing it.

 Doe's affidavit states that he “[has] been informed by three other employees that they too were promised confidentiality in tape recordings by the district attorney and two of the three are currently fearful of stepping forward as they feel this might jeopardize their positions or expose them to media attention.”   However, since these employees are not parties to this action, we may not recognize or determine their rights in this proceeding.

VI. The section G materials

 An uncertainty has developed about the grand jury's intent to make public the “pertinent interviews conducted by the district attorney which were made available to the grand jury” (emphasis added) as specified in paragraph 3 of section G of the final report.   The uncertainty arises because of two factors:

1. Some transcripts of district attorney interviews forwarded to this court by the Fresno County Clerk (which do not appear relevant to the SCT investigation) are marked in red pencil “not to be released.”

2. On September 14, 1984, Walter Staley, secretary of the 1983–1984 Fresno County Grand Jury and currently the foreman of the 1984–1985 grand jury, filed a sworn declaration with this court to the effect that the 1983–1984 grand jury had reviewed certain “[t]ranscriptions of interviews and investigative contacts, conducted by the Fresno County District Attorney's office” and had determined that the information contained therein was “not relevant or pertinent” to the grand jury investigation of the SCT contract;  that the grand jury therefore “elected not to include as part of its ‘final report’ the above mentioned transcription of interviews or any information contained therein;  ․ that the above mentioned transcriptions ․ would be sealed and not made part of section G ․”  Mr. Staley then declared that as the secretary of the 1983–1984 grand jury he personally delivered to the office of the Fresno County Clerk the documents relevant and pertinent to the SCT contract investigation but that as a result “of mistake and inadvertence” he delivered the transcriptions of the interviews and investigative contacts by the district attorney's office to the Fresno County Clerk.  “That it was and is the desire of the ․ grand jury that the above mentioned transcripts not be considered as part of the ․ grand jury final report ․”  The declaration further states that Mr. Staley contacted the presiding judge of respondent court and advised him of the inadvertent inclusion of the above described transcripts as part of the materials delivered to the county clerk.

Because of the apparent conflict between Mr. Staley's declaration and paragraph 3 of section G of the grand jury report pertaining to “pertinent” interviews of witnesses by the district attorney, this matter should be remanded to the respondent court with directions to conduct an in camera hearing to determine the sole question of what district attorney interviews of witnesses and investigative materials, if any, the grand jury intended to include in its report.   The transcripts of these interviews and investigative materials intended to be released shall be released along with the other items specified in section G.

The transcripts of district attorney interviews of witnesses and investigative materials not intended to be released by the grand jury and any other documents inadvertently forwarded to this court and not intended to be released by the grand jury shall not be released as part of the grand jury report.

VII. Disposition.

The writ of mandate shall issue commanding respondent superior court to release all transcripts and documents described in section G of the grand jury report except the testimony of the unnamed party Doe set forth at pages 170 line 14 to 171 line 17 in volume XVI of the reporter's transcript of May 7, 1984, and except the transcripts of district attorney interviews, investigative materials and reports and any other documents which the grand jury did not intend to include in its report.

The matter is remanded to the superior court with directions to conduct an in camera hearing for the sole purpose of determining the grand jury's intent insofar as publishing the district attorney interviews and materials arising from investigative contacts with witnesses.

I concur in the opinion and judgment.

I write to bring to legislative attention the need for legislation in this area of public administration and law to accord greater protection to the privacy and reputation of witnesses, particularly where, as here, the grand jury makes public almost the entire investigation of the district attorney.¹

A grand jury is a specially selected group of responsible citizens.   When a witness appears before the grand jury and testifies he/she is under oath, in a formal setting, and is admonished that his/her testimony may be made public.   Further, a witness before the grand jury has judicial immunity.   The atmosphere and setting in which a district attorney's investigator interrogates a witness is entirely different.   The interviewee is not under oath.   The atmosphere is normally informal.   There is no admonition that what is said may be released to the public.   The questions may and often do ask for the interviewee's opinion about other persons, such as what does the witness think of X, what kind of a person is X, and other matters dealing with X's personality, character and honesty.   Some of the questions call for speculation, conclusions, hearsay, rumor and chatty gossip;  some of the answers are defamatory.

This kind of an interrogation has no place in a grand jury report, and indeed, in my opinion, has no place as part of the information given to the grand jury by the district attorney.   Witnesses have every right to believe statements given to the district attorney during the course of his official investigation will remain confidential.   It is quite apparent that if an interviewee had any idea that his/her statement would be made public, particularly through the release of a grand jury report, the statement would never be given.   Unlike a grand jury witness, the district attorney cannot force the interviewee to make a statement.   A potential witness is entitled to protection of his/her reasonable expectation that such statements will remain confidential.

Moreover, the interviewee has no protection from a civil suit for defamation by the injured party.   Further, presumably any agency, publication or private party who republishes the statement would also be exposed to a civil action for libel or slander.

An innocent third person who is defamed by such statements cannot be made whole by a civil suit.   The cost of civil litigation is simply not affordable to a large segment of the population.   The statements may be given wide publicity and are given special weight by clothing them with the imprimatur of the grand jury.   Once the damaging statements have been published, no matter what happens subsequently, the bell cannot be unrung.

I recommend that the Legislature consider investigating this area with view toward the enactment of procedural statutes requiring district attorneys or other grand jury investigators to warn witnesses that their statements may be submitted to the grand jury and released to the public, and to warn the witness that he/she has no immunity from a civil action.   A district attorney should be prohibited from presenting such statements to the grand jury, and the grand jury should be prohibited from making them public.   If the witness is called by the grand jury, the statement is duplicative and cumulative.   If the witness is not called, then presumably the statement is not germane to the subject matter of the inquiry and is unnecessary to the grand jury's decision and recommendation.

I also commend to the Legislature the adoption of procedural rules for grand juries designed to safeguard the rights of persons who are criticized in grand jury reports.   Several states have enacted such statutes, including Florida (see Fla.Stats.1975, § 905.28;  Miami Herald Pub. Co. v. Marko (Fla.1977) 352 So.2d 518.)   The Florida statute provides that “[n]o report or presentment of the grand jury relating to an individual which is not accompanied by [an] ․ indictment shall be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the Circuit Court a motion to repress or expunge the report or that portion which is improper and unlawful.”  (Fla.Stats.1975, § 905.28.)  “Improper and unlawful” has been interpreted by the Florida courts to include that which is outside grand jury authority or has no foundational basis in fact or is not germane to the subject matter under investigation.  (Miami Herald Pub. Co. v. Marko, supra, at pp. 522–523.)   Such a statute affords a person whose character is impugned in a grand jury report but who has not been indicted by the grand jury “an opportunity to prevent the publication of unfavorable material through the repression of matter that is ‘improper and unlawful.’ ”   (Id., at p. 521.)

FOOTNOTES

1.   In the grand jury's final report, it is stated:  “The grand jury wishes to make clear that the investigation conducted was not an indictment proceedings and no indictments were returned.   Rather, the grand jury undertook the investigation in discharge of its civil duty to investigate and report on the operations of county government.”

2.   Doe's motion to dismiss the grand jury petition on the ground that the district attorney assertedly was not authorized to represent the grand jury in these proceedings is denied.   The declarations of several grand jury members show the grand jury as a body decided to include section G in its report to be made public, they “were assured that the district attorney would do everything possible on [their] behalf, to make the report public․ [and] It was ․ [their] understanding, along with a great majority of other grand jurors, that this would include going to court on [their] behalf, if necessary, and appealing any adverse decision concerning publication of the entire grand jury report.”Also, People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761 contemplates appellate review of superior court actions regarding grand jury reports.  (Id., at p. 442, 119 Cal.Rptr. 193, 531 P.2d 761.)   It is unlikely that appellate review could take place unless the attorneys involved in the grand jury's investigation and preparation of the report could appeal orders like the one in question, even after the grand jury's term has expired.

3.   This principle that the public and not some judge or other government official can best decide the truth concerning governmental controversy is in accord with Milton's 17th century protest of the licensing of books:  “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength.   Let her and falsehood grapple;  whoever knew Truth put to the worst, in a free and open encounter?”  (John Milton, Areopagitica (1644).)

4.   For example, the Florida Supreme Court has upheld the constitutionality of Florida legislation giving the district court power to suppress statements in grand jury reports which are outside the scope of grand jury authority or have no foundational basis in fact or are not germane to the subject matter under investigation.  (See Miami Herald Pub. Co. v. Marko (Fla.1977) 352 So.2d 518, 522–523.)   Importantly, the court specifically rejected any test of fairness:  “Trial judges are poorly situated to evaluate possible reputational damage on the basis of what is or is not ‘fair’ to public officials brought before grand juries.   Often officials charged with misconduct will be members of the same community in which the evaluating judge sits, compounding the subjectivity of a ‘fairness' test.   If the judicial inquiry is narrowed, however, to the legitimacy of the grand jury proceeding, the factual foundation for the subject matter included in the report, and the germaneness of the reported material to the purpose for which the grand jury was convened and given investigative authority ․ the balance between public officers' ‘privacy’ and the public's general right to know will be struck, in compliance with legislative guidelines, without concern either for personalities or for the necessity of confronting constitutional standards.”  (Id., at p. 523.)

5.   Penal Code section 939.9 reads:  “A grand jury shall make no report, declaration, or recommendation on any matter except on the basis of its own investigation of the matter made by such grand jury.   A grand jury shall not adopt as its own the recommendation of another grand jury unless the grand jury adopting such recommendation does so after its own investigation of the matter as to which the recommendation is made, as required by this section.”

6.   Penal Code section 939.1 reads:“The grand jury acting through its foreman and the attorney general or the district attorney may make a joint written request for public sessions of the grand jury.   The request shall be filed with the superior court.   If the court, or the judge thereof, finds that the subject matter of the investigation affects the general public welfare, involving the alleged corruption, misfeasance, or malfeasance in office or dereliction of duty of public officials or employees or of any person allegedly acting in conjunction or conspiracy with such officials or employees in such alleged acts, the court or judge may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public.   The order shall state the finding of the court.   The grand jury shall comply with the order.“The conduct of such investigation and the examination of witnesses shall be by the members of the grand jury and the district attorney.“The deliberation of the grand jury and its voting upon such investigation shall be in private session.   The grand jury may find indictments based wholly or partially upon the evidence introduced at such public session.”

7.   See footnote 5, page 607, ante.

8.   For example, at pages 59–60 of the grand jury report the following appears:“Jack Rust testified that he helped draft the June 28th and September 6th Board memos recommending SCT as the vendor of Fresno County's computer service needs.   Mr. Rust admitted that he supplied many of the facts and figures included in those memos.“․“Mr. Rust stated that he was a party to adjusting PMM's bid so that both the SCT and PMM bids would reflect equal hours of service.   He also testified he did not consider subtracting man-hours from SCT's bid, which would have resulted in a corresponding decrease in SCT's $1.37 million proposal.   The Grand Jury is concerned that the Screening Committee used SCT's higher bid as the standard for comparison of hours required.   The Screening Committee and Mr. Rust stated that SCT's bid accurately reflected the required man-hours necessary to complete the project.   However, when questioned further by the Grand Jury, Mr. Rust further stated that many of the hours in SCT's bid reflected travel time for SCT employees and not actual hours of work.   Mr. Rust further admitted that he could not render an opinion as to the ‘actual’ hours necessary to perform the contract and that he really didn't know if PMM's adjusted bid reflected sufficient hours to perform the requested services.“In addition, the Grand Jury received into evidence Mr. Rust's working notes which revealed that SCT was privy to information usually known only to county staff.   This information included knowledge of competing vendor's bid and this Grand Jury's investigation.”

9.   Penal Code section 924 reads:  “Every grand juror who willfully discloses the fact of an information or indictment having been made for a felony, until the defendant has been arrested, is guilty of a misdemeanor.”Penal Code section 924.1 reads:  “Every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or any other grand juror has voted on a matter before them, is guilty of a misdemeanor.”

10.   Penal Code section 933 reads:“(a) No later than one month after the end of each fiscal or calendar year of a county, each grand jury impaneled during that fiscal or calendar year shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government matters other than fiscal matters during the fiscal or calendar year.“(b) No later than six months after the end of each fiscal or calendar year, each grand jury impaneled during that fiscal or calendar year shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to fiscal matters of county government during the fiscal or calendar year of the county.“(c) No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment on the findings and recommendations.   All such comments and reports shall forthwith be submitted to the presiding judge of the superior court who impaneled the grand jury.   A copy thereof shall be placed on file with the clerk of the public agency and shall remain on file in that office.“(d) This section shall remain in effect only until January 1, 1989, and as of that date is repealed, unless a later enacted statute which is chaptered before January 1, 1989, deletes or extends that date.”

11.   Penal Code section 924.4 reads:  “Notwithstanding the provisions of Sections 924.1 and 924.2, any grand jury or, if the grand jury is no longer empaneled, the presiding or sole judge of the superior court, may provide the succeeding grand jury with any information or evidence acquired by the grand jury during the course of any investigation conducted by it during its term of service, except any information or evidence which relates to a criminal investigation or which could form part or all of the basis for issuance of an indictment.   Transcripts of testimony reported during any session of the grand jury shall be made available to the succeeding grand jury upon its request.”

12.   Penal Code section 911 reads:  “The following oath shall be taken by each member of the grand jury:  ‘I do solemnly swear (affirm) that I will support the Constitution of the United States and of the State of California, and all laws made pursuant to and in conformity therewith, will diligently inquire into, and true presentment make, of all public offenses against the people of this state, committed or triable within this county, of which the grand jury shall have or can obtain legal evidence.   Further, I will not disclose any evidence brought before the grand jury, nor anything which I or any other grand juror may say, nor the manner in which I or any other grand juror may have voted on any matter before the grand jury.   I will keep the charge that will be given to me by the court.’ ”

13.   The parties were given notice of our intent to take judicial notice of these documents as required by Evidence Code sections 459, subdivision (c) and 455, subdivision (a).   We have considered their responses thereto.

14.   Doe's argument the grand jury is estopped “by election” from publishing any of the section G materials is based on his theory that the grand jury misled him by holding their sessions in private rather than in public as authorized by section 939.1.   This is an argument grounded on equitable estoppel or estoppel by conduct rather than promissory estoppel.   Doe's argument fails as a matter of logic and scholarship.   Equitable estoppel requires a fraudulent intent to induce reliance and injury as a consequence (30 Cal.Jur.3d, Estoppel and Waiver, § 5, pp. 701–702.)   Neither of these elements are present in this case.   Doe relies on general language in an obscure footnote in Corpus Juris Secundum which in turn relies on dicta in two completely inapposite cases from Texas and South Dakota.  (Moore v. Thompson (1953) 131 F.Supp. 658 and Strom v. Buholz (1951) 73 S.D. 583, 46 N.W.2d 912.)Finally, even 31 Corpus Juris Secundum section 109 points out that “no estoppel arises where the [entity which accepted] benefits is entitled to them regardless of the transaction in question.”  (At p. 563.)   The grand jury was entitled to the formal, complete and truthful testimony of all witnesses it called.

1.   I, of course, recognize that on remand the trial court may determine the investigative materials and statements of witnesses taken by the district attorney may not be released because the grand jury did not intend that they be released.   This fact does not diminish the necessity of legislative action to govern future cases.

FRANSON, Acting Presiding Justice.

HAMLIN, J., concurs.