Tribune Co. v. Spicola

543 So. 2d 757, 14 Fla. L. Weekly 294, 16 Media L. Rep. (BNA) 1169, 1989 Fla. App. LEXIS 312, 1989 WL 5257
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 1989
DocketNo. 88-1884
StatusPublished
Cited by6 cases

This text of 543 So. 2d 757 (Tribune Co. v. Spicola) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tribune Co. v. Spicola, 543 So. 2d 757, 14 Fla. L. Weekly 294, 16 Media L. Rep. (BNA) 1169, 1989 Fla. App. LEXIS 312, 1989 WL 5257 (Fla. Ct. App. 1989).

Opinion

RYDER, Acting Chief Judge.

The Tribune Company (the Tribune) appeals from a final order denying it access to investigative records held by three agencies of the state and Hillsborough County. The question presented for our review involves the sometimes competing notions of grand jury secrecy, the public’s right of access to public records and the right of individuals wrongfully accused of committing crimes to have their records sealed [758]*758from public inspection. In certain cases, the public’s right to view public records may be outweighed by either the need to maintain secrecy in grand jury proceedings or the limited statutory right to seal one’s criminal records. In this case, however, the records requested do not fall within the parameters of the sealing statute and the Tribune’s request is phrased so as not to invade the province of the grand jury. We, therefore, reverse.

Judge Guy W. Spicola, Chief Judge, Thirteenth Judicial Circuit, became the target of investigations by the Hillsborough County Sheriff's Office and the state attorney for the Thirteenth Judicial Circuit in September 1987. The investigations occurred in response to allegations that Judge Spico-la had engaged in illegal wiretapping, insurance fraud, the improper use of a judicial assistant for his own personal matters and the submission of incomplete financial disclosure statements. The investigations eventually culminated in a grand jury probe of Judge Spicola.

State Attorney Ed Austin of the Fourth Judicial Circuit was appointed special prosecutor to lead the grand jury investigation. The two detectives who had conducted the Hillsborough County Sheriff’s Office investigation were assigned to assist Mr. Austin. After hearing testimony from forty-seven witnesses and reviewing the various criminal allegations against Judge Spicola, the grand jury returned a no true bill. Judge Spicola then moved to seal all records in the matter pursuant to section 943.058, Florida Statutes (1987), concerning the sealing or expunction of criminal history records. Circuit Judge Oliver L. Green, Jr. entered an oral order granting Judge Spico-la’s motion and sealing all records in the case.

A news reporter for the Tribune, Ivan Hathaway, orally requested the investigative records concerning Judge Spicola in the possession of Bill James, the state attorney for the Thirteenth Judicial Circuit, Hillsborough County Sheriff Walter Heinrich and chief assistant state attorney John Delaney of Mr. Austin’s office. Each agency contacted by Hathaway denied access to the requested records, citing Judge Green’s oral order as encompassing their investigative files. The Tribune then filed motions to intervene in the matter and to clarify the scope of Judge Green’s order. After a hearing on the Tribune’s motions, Judge Green entered a written order granting Judge Spicola’s motion to seal and a separate order sealing the records. The order granting the motion to seal states that Judge Spicola comes within the category of persons considered for relief under section 943.058 and the investigative records in question are “criminal history records” within the contemplation of the statute. The Tribune timely appealed.

Section 943.058(2), Florida Statutes (1987), provides that a trial court may, under certain circumstances, order the sealing or expunction of “criminal history” information or records. The term “criminal history information” is defined in section 943.-045(4) as information collected by a criminal justice agency consisting of “identifiable descriptions and notations of arrests, detentions, indictments, informations and other formal criminal charges and the disposition thereof.” Judge Spicola had not been arrested and no indictment, information or other formal criminal charge had been filed against him. Judge Green, however, in finding that the records requested by the Tribune fall within the category of “criminal history” records, concluded that Judge Spicola had been “detained,” in that “an initiation of a criminal proceeding by criminal justice agencies occurred.”

We disagree with Judge Green’s rather broad formulation. In our view, the word “detentions,” as used in section 943.-045(4), contemplates some form of physical limitation. There is no evidence that Judge Spicola was physically detained and we fail to see how he was detained, except perhaps in a metaphysical sense, as a result of the investigation. Judge Green, therefore, erred in drawing Judge Spicola’s records into the category of “criminal history information” eligible for sealing under section 943.058. To the contrary, the records requested by the Tribune clearly constitute “criminal investigative information,” sepa[759]*759rately defined in section 943.045(6) as information compiled by a criminal justice agency during the course of an investigation of an identifiable person or group and of a specific crime, including “information derived from laboratory tests, reports of investigators, informants, or any type of surveillance.” The sealing or expunction statute, applicable to criminal history information but not to criminal investigative information, was not intended to offer relief to those persons who, like Judge Spicola, have merely been investigated. See § 943.0575, Fla.Stat. (1987) (“[njothing in [Chapter 943] shall be construed to restrict or condition public access to records as provided by s. 119.07”).

Having determined that Judge Spicola’s records cannot be statutorily sealed, we would ordinarily have no difficulty in allowing them to be subjected to public scrutiny pursuant to chapter 119, Florida Statutes (1987) (the Public Records Act). See § 119.07(l)(a), Fla.Stat. (1987). Denial of access by the three agencies involved would be improper, because no express exemption to disclosure exists. Section 119.-07(3)(d) does exempt “[ajctive criminal intelligence information and active criminal investigative information.” However, such information remains exempt only so long as the investigation is “active.” Criminal investigative information is considered “active” only when “it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.” § 119.011(3)(d)2, Fla.Stat. (1987). Here, no good faith anticipation of securing an arrest or prosecution exists in light of the grand jury’s return of a no true bill and the absence of any new evidence in the case. Therefore, the active criminal investigation exemption to disclosure does not apply. We also note that none of the investigatory agencies premised their refusal to allow public access to Judge Spico-la’s records on this exemption.

What prevents us from therefore almost summarily concluding that the records should be open to public view is the spectre of grand jury secrecy. See §§ 905.-24-905.27, Fla.Stat. (1987). Judge Spicola asserts that the investigative files requested by the Tribune may not be viewed without violating the sanctity of the grand jury, since they have been inextricably intertwined with grand jury records. The Tribune, however, maintains that it has never sought access to grand jury generated information and has always limited its requests to encompass only the raw investigative files created and maintained by the three governmental agencies outside of and apart from the grand jury investigation and proceedings.

Since no in camera inspection of Judge Spicola’s files has been undertaken, we cannot say whether or not the requested investigative records have, in fact, been intertwined to some degree with grand jury records.

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543 So. 2d 757, 14 Fla. L. Weekly 294, 16 Media L. Rep. (BNA) 1169, 1989 Fla. App. LEXIS 312, 1989 WL 5257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tribune-co-v-spicola-fladistctapp-1989.