Sunshine state secrecy

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14

Shoe leather and a break helped The Miami Herald report on more than 100 cases that vanished from the public docket in five years.

From the Spring 2006 issue of The News Media & The Law, page 14.


By Kirsten B. Mitchell

Last summer when Miami Herald columnist Joan Fleischman asked reporter Patrick Danner to search Broward Circuit Court's civil docket for a divorce case involving a local TV news personality, Danner quickly found the case, copied documents and faxed them to Fleischman.

End of story — almost.

A few months later, Danner ran across the court papers when he was cleaning off his desk. Curious about what was happening in the marital split between Martha Sugalski and Craig Minervini, a baseball commentator for the Marlins, he went to the court's Web site and typed in the case number.

"No Records for Search," the computer responded.

Odd, thought Danner.

A few days later, he typed the case number into a public computer in the clerk's office.

Same response.

The case had vanished.

When he asked a clerk about it, the clerk typed the case number into his computer behind the counter and showed Danner the response: "Confidential File" flashed in red.

Danner mentioned the disappearance to Dan Christensen, who broke the 2003 story of Mohamed K. Bellahouel, an Algerian-born U.S. resident detained secretly for five months after the Sept. 11 attacks. Christensen, then with Miami Daily Business Review, looked into the case after it disappeared from an oral arguments calendar and then from the court's docket.

Christensen and Danner knew there was probably a story in the disappearance of the Sugalski-Minvervini case, but all they had was case No. 05-011523 missing from the civil docket.

Armed with the previously public court documents, Danner went to Judge Ronald Rothschild who agreed to turn over his order that made the case "confidential" at the request of Sugalski and Minervini.

The reporting team wondered how many similar cases existed and set about finding out.

Christensen and Danner decided early on to narrow their reporting, focusing only on cases like the divorce case shrouded by judicial discretion, and not on cases kept from the public by law, such as adoptions.

They decided also to zero in on civil cases because there are provisions in Florida law for keeping criminal cases off the public docket and for expungement — deleting criminal records from the public record.

The reporting team asked the Broward Circuit Court clerk for the number of cases like the one they had spotted that disappeared from the docket. The clerk responded with numbers of cases deemed "sealed" and "confidential."

In the course of interviewing court officials, it dawned on Christensen and Danner that confidential did not mean the same thing to them as it meant to court officials. Cases marked confidential in Broward are "super-sealed" and go on a secret docket hidden from public view.

The reporters eventually discovered that 107 divorce, negligence, malpractice and fraud cases vanished from the public docket between 2001 and early 2006. Previously, it was impossible to tell not just what was in them, but that they existed at all.

Miami media lawyer Thomas Julin called it a "secret judiciary" in Danner's and Christensen's piece, which ran on April 16.

"It's against everything we know," said longtime Miami divorce lawyer A.J. Barranco.

Broward Chief Judge Dale Ross said he was not even aware that cases were being secretly docketed.

Judge Rothschild insisted to Christensen and Danner that when he signed the order in the Sugalski-Minervini divorce, he did not intend to remove it from the public docket.

Christensen's and Danner's reporting sparked Judge Ross to send a memo to judges reminding them to "carefully" review court rules, state law and several judicial opinions governing the use of secrecy. Ross' memo did not address the practice of removing cases from the public docket, Christensen and Danner reported.

A week later, Broward judges returned several cases to the public docket. Three judges failed to follow the law in sealing cases by not showing sufficient reason for secrecy and not giving adequate public notice for the public to challenge the sealing orders.

In early May, the Broward court clerk's office announced a new policy that will soon require judges to spell out exactly what categories of information should be shielded from the public.

The paper also announced its plan to sue to obtain the hidden docket records.

"On the majority of cases, we work with governments and the courts to obtain needed information," Herald Publisher Jesús Díaz Jr. told his paper. "But in those rare instances when we believe that our right to information necessary to inform the public is being blocked, we will resort to legal action, as we have unfortunately had to do in this particular case."

The missing docket story was one Christensen had pursued — to no avail — years earlier. It was a disappearing docket number in federal court in 2003 that alerted Christensen to Bellahouel, whose case was so secret that it went all the way to the U.S. Supreme Court with little public knowledge of what was in it. Had it not been for Christensen's reporting, the public would not even have known about the case's existence.

After reporting that case, Christensen was sure other hidden cases existed and turned his attention to state courts, talking to dozens of lawyers and court officials in the search for secret dockets. His reporting turned up nothing.

"I looked and looked and couldn't find anything, but it was there," said Christensen. If not for Danner's vigilance in the divorce case — an errand he was doing for another reporter — Christensen might never have gotten the story.

"You need shoe leather and a break," he said.