Pay-To-Play Rreport Objectors May Lose Legal Veil of Secrecy
BYLINE: TONY DORIS, Palm Beach Post Staff Writer
DATE: September 4, 2007
PUBLICATION: Palm Beach Post, The (FL) EDITION: FINAL
SECTION: A SECTION PAGE: 1A MEMO: Ran all editions.
Some secrets regarding a grand jury report about the city’s pay-to-play politics may soon be revealed.
Seven months after the panel harshly criticized West Palm Beach as a place where developers looking to do business in the city believe they must contribute to officials’ campaigns, entire sections of its investigation report remain sealed. That’s because motions by state Rep. Mary Brandenburg, D-West Palm Beach—keep reading
and possibly Mayor Lois Frankel — to have sections deleted have led state courts to keep even the existence of the efforts an official secret. The motions have been kept off open dockets or filed without names.
But that may be changing.
As a result of The Palm Beach Post’s inquiries to Florida circuit, appellate and Supreme courts, judicial officials have agreed to make the existence of the cases and details about motions available to the public. Still under discussion in the state’s highest court is whether to allow the release of more than anonymous case numbers and to identify in public dockets the names of those seeking to have grand jury reports expunged.
Chief Circuit Judge Kathleen Kroll agreed last week to release case numbers and dockets for three cases that involve protests of the grand jury presentment. Kroll had denied those efforts to alter the report, and the cases have been appealed to the 4th District Court of Appeal, which has permitted no trace of them to appear on its online docket.
In fact, one 4th District Court of Appeal case that was listed on the docket in May was removed about two weeks ago, after that court’s clerk determined it should not be public. That case was filed by Republic Properties Corp., a former city hall construction contractor that objected to a negative reference in the grand jury report.
The existence of a second case, by Brandenburg, is known publicly only because she disclosed it several months ago in an interview, though neither she nor her attorney Don Pickett would discuss the matter further.
Frankel will not comment on whether she filed the third case. The state attorney responded to her criticisms of the grand jury report by calling for a follow-up grand jury investigation.
Florida grand juries are volunteer panels seated to conduct investigations and hear witness testimony, under direction from the state attorney’s office.
While the proceedings are required by law to be kept secret, court clerks around the state differ on whether motions to repress grand jury reports that are filed by people who are not charged must be hidden from public view. The Palm Beach County grand jury, while highly critical of the city’s government, issued no criminal charges.
The Florida statute concerning such motions says that while they are pending, the report “shall not be made public or published.” But Volusia County attorney Jon Kaney, general counsel for the First Amendment Foundation, says that doesn’t mean the existence of the case must be hidden.
“Keeping the docket sealed is neither permitted nor related to the purpose of the statute,” he says. “The statute says only that the presentment must be sealed.”
The nonprofit First Amendment Foundation was founded by the Florida Press Association to protect free speech and open government in the state.
As it happens, Kaney, as an attorney in private practice, is representing the Volusia state attorney in trying to redact a section of a grand jury report, which he contends improperly mentions his client. In that sealed case, before the 5th District Court of Appeal, the docket is public and the state attorney is identified in it.
The clerk for that court, Susan Wright, says her office generally keeps the identity of a grand jury investigation subject secret, but in this case the state attorney’s name had come out in a public hearing, so there was no need to.
Even with secret cases, a case number is placed on the public docket, she said. How would anyone learn about, or know how to find records of such a case, without a name attached to it?
A member of the public couldn’t find the case online, but if someone called the clerk’s office to ask if any appeal had been filed regarding a grand jury report, the clerk would tell them, Wright says.
Tom Hall, clerk of the Florida Supreme Court, last week asked Chief Justice R. Fred Lewis how to handle such sealed cases. No decision has been announced.
Hall said that the public should be able to find out about the existence of such cases via computer, by typing in the words “grand jury” on an appeals court Web site. He said he was surprised to learn that this function did not work for the 4th District’s online docket.
It was a programming glitch that would be corrected in a matter of days by his technicians, who handle the appellate court sites, he said. Other appellate courts around the state did not have that problem, he said.
“It’s just an interesting entity, grand juries,” Kroll said. “I’m hoping we’re going to get some good law out of these appeals.”
~ tony_doris@pbpost.com