IN THE DISTRICf CbURT OF A.P PEAL FOURTH DISTRICT OF FLORIDA CASE NO JEFFREY EPSTEIN Petitioner vs STATE OF FLORIDA PALM BEACH NEWSPAPERS INC and Respondents Pending in the Fifteenth Judicial Circuit in an.d for Palm Beach County Florida Case Nos CF CF PALM BEACH NEWSPAPERS INC d/b/a THE PALM BEACH POSTS RESPONSE TO EMERGENCY A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 X?l 3K fm?Q Z2f CX CX gT L??T 2E Cy 3P EM3 J4T L?h??M q?ᡚ?Y r??O?rJt CTX i P!e i I CTX rC YY I 1e 2j CTX X0T1i k3v Jh/e0h1 H(K W/Q0 CTX j?!k 5B r2 P0 0Q X(P0s s(s p0 Pp CTX qq dR B/J Va A N?q qr NEeD K?i N?M?qr EeD k??O d6 I I i i CTX I CTX U3 U3 U3 U3 S6 E"L I I I5K7C:I 9O U3 Cn qrr qr q??r?q 9qr CTX G5 qr CX rC l0 WS zN pf1 ODV8L?m jC1DxV CTX CTX A qr 10Cy rYY 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yW Gd T?H CTX CTX I CK M?qr K?SK?PQZ I IRZX 8YCX 10Cy qr CX kv zg S5kB??a iG wA CTX U2 6Y CTX U2 6Y I K,,j j,s 6Y P!p qr 10Cy qr YY G?O 9K mSd X0 9r?yal 1d bY0 XNf??qN D?J CTX P!Z b!o C,C qrM 10Cy qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION JURISDICTION NATURE OF THE RELIEF SOUGHT STATEMENT OF THE CASE AND FACTS SlJMMARY OF THE ARGUMENT ARGUMENT I STANDARD OF REVIEW II THE TRIAL COURT CORRECTLY UNSEALED THE NP A A The NP A was not Properly Sealed in the First Instance Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion Notice Hearing or a Proper Order Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum Petitioner Cannot Identify a Rule Interest that Warrants Closure The Federal Courts Decisions in Case No S.D Fla Did Not Preclude the Lower Courts Orders Unsealing the NPA Federal Rule of Criminal Procedure Did Not Preclude the Lower Courts Orders Unsealing the NP A CONCLUSION CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases Craig Harney U.S Doe Hammond Supp 2d D.D.C In re Grand Jury Investigation of Ven-Fuel Supp M.D Fla Lockhead Martin Corp Boeing Co Supp 2d M.D Fla Oregonian Publishing Co United States District Court F.2d 9th Cir U.S Rosen Supp 2d E.D Va United States Kooistra F.3d 11th Cir State Cases Anderson E.T So 2d Fla 4th DCA Barron Florida Freedom Newspapers Inc So 2d Fla Combs State So 2d Fla Doe Museum of Science and History of Jacksonville Inc Case No WL Fla 7th Jud Cir June Fla Sugar Cane League Inc Fla Dept ofEnvtl Reg Case No Fla 2d Jud Cir Sept Rous Auth of the City of Daytona Beach Gomillion So 2d Fla 5th DCA In re Amendments to Florida Rule of Judicial Administration So 2d Fla Sarasota Herald Tribune Div of the New York Times Co Holtzendorf So 2d Fla 2d DCA Sarasota-Herald Tribune State So 2d Fla 2d DCA Sentinel Communications Co Watson So 2d Fla 5th DCA Wallace Guzman So 2d Fla 3d DCA Other Authorities Fla Const Art I Fla Const Art I Fla App Fla Jud Admin INTRODUCTION This appeal concerns attempts to thwart public scrutiny of how government responded to the prostitution of children in Palm Beach County In the order at issue below the trial court correctly unsealed a non-prosecution agreement and its addendum A predecessor judge found that the agreement significantly induced Petitioner to accept a plea agreement that allowed him to serve months in jail for luring children to his Palm Beach mansion for massages or sexual activity At the time that the non-prosecution agreement and its addendum collectively the NP A were accepted for filing no basis for closure was asserted or found Thus the NP A was not properly sealed and the prior closure order was properly vacated Moreover no basis currently exists for closure and the pending petition like Petitioners filings below contain nothing more than unsubstantiated assertions that confidentiality is required Thus continued closure is not warranted Certainly unsealing the documents was not such a clear departure from the essential requirements oflaw as to warrant certiorari relief Consequently the pending petition must be denied In addition this Court should exercise its inherent authority under Rule of the Florida Rules of Appellate Procedure to sanction Petitioner for his frivolous and bad faith attempts to cloak the resolution of the criminal charges against him in secrecy by awarding to Respondent Palm Beach Newspapers Inc d/b/a The Palm Beach Post the Post its attorneys fees and costs in responding to this petition JURISDICTION The Post adopts Responden statement concerning jurisdiction Insofar as this Court finds jurisdiction the Post requests that this Court expedite its consideration of this matter so as to remedy the denial to date of the publics and pres constitutional and common law rights of access Art I Fla Const Fla App Sarasota-Herald Tribune State So 2d Fla 2d DCA rule permits expedited review of orders excluding the press NATURE OF THE RELIEF SOUGHT The Post asks this Court to deny the pending petition and to let stand the circuit courts Orders dated June and June which unsealed the NP A and directed the Clerk of Court in and for the Fifteenth Judicial Circuit of Florida to release these records to the public Petitioner has sought review of the June Order by motion rather than by petition for writ of certiorari Though the June Order does address the matter of Petitioners request for stay the order also directs the Clerk of Courts to release the records review of which should have been sought by certiorari STATEMENT OFTHE CASE AND FACTS This proceeding concerns the publics constitutional and common law rights of access to records crucial to the disposition of criminal charges against Petitioner Jeffrey Epstein Specifically Petitioner seeks review of two orders unsealing a non-prosecution agreement and its addendum collectively the NP A which are records of the trial court below State Epstein Case Nos CF9454AMB CF9381AMB Petitioner was investigated by the State of Florida for felony solicitation of children for prostitution at The victims allege Epstein brought and paid teenage girls to come to his home for sex and/or massages at I and Epsteins minor victims are numerous at and the case drew attention of the highest-ranking law enforcement officials in Palm Beach County Frustrated during the course of the investigation Police Chief Michael Reiter even penned a letter to State Attorney Barry Krischer calling his offices handling of the investigation highly unusual and suggesting that he disqualify himself from the case if the state would not act at I A at A federal investigation of Epsteins conduct as it relates to soliciting children for prostitution ensued References to A are to Petitioners Appendix Then abruptly in June Epstein pleaded guilty in the trial court below to felony solicitation of minors for prostitution was designated a Sexual Offender pursuant to Florida law and was sentenced to 18-months jail and community control Before accepting the terms of his state plea Epstein entered into a non-prosecution agreement with federal prosecutors at The non-prosecution agreement and its addendum were filed under seal in the lower court on July and August respectively According to Epsteins lawyers and presumably the NPA itself taking the state plea was a condition of the NPA at The NPA is invalidated if Epstein fails to fulfill the obligations of the state plea deal A at In accepting the state plea the trial court viewed the NPA a significant inducement in accepting the plea and recognized that the NP A influenced the defendant to make the state plea at In considering the plea at the hearing the court requested a sealed copy of the non-prosecution agreement and asked whether Petitioner had signed it at The NP A and its addendum were filed under seal in this Court on July The Post and its lawyers have not seen the NP A though it was reviewed in camera by the trial court Epsteins lawyer indicated it was signed and interjected that he would like to seal the copy at Representatives from the U.S Attorneys Office were present at the hearing at but stated no objection to filing the non-prosecution agreement in the state court file Thereupon without any further consideration the trial court requested a sealed copy of the non-prosecution agreement at On July without any further proceedings on the issue the court entered an Agreed Order Sealing Document in Court File which allowed Epstein to file the non-prosecution agreement that was attached to the Agreed Order under seal By its terms the closure order was limited to the non-prosecution agreement and did not include its addendum The order makes no findings with respect to closure and never expires The addendum was filed six weeks later on August without any further order of the Court with respect to closure Since Epstein pleaded guilty to soliciting a minor for prostitution he has been named in at least civil lawsuits that like the charges in this case allege Epstein lured teenage girls to his Palm Beach mansion for sex and/or massages At least cases are pending In another lawsuit one of the Epsteins See also at citing Doe Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe No Epstein Case No Footnote continued on next page accusers has alleged that federal prosecutors failed to consult with her regarding the disposition of possible charges against Epstein at Given the important public interest in this matter on June the Post moved to intervene below for the purpose of obtaining access to the NP A The Court granted the Posts motion to intervene on June Supp.A.-1 at The trial court granted the Posts petition for access on June and on June denied Epsteins motion for stay and directed the clerk to release the records at noon on Thursday July Epsteins emergency petition for writ of certiorari regarding the June order and his emergency motion to review the June order followed S.D Fla Doe No Epstein Case No S.D Fla C.M.A Epstein Case No S.D Fla Doe Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe II Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla Doe No Epstein Case No S.D Fla See also at citing In re Jane Doe Case No S.D Fla References to Supp.A correspond to the supplemental appendix filed by the Post simultaneous with this brief SUMMARY OF THE ARGUMENT Petitioners initial filing of the NP A under seal was achieved without any regard for the publics constitutional statutory and common law rights of access Florida law flatly prohibits the standardless permanent closure that was achieved in this case The public has a right to know what transpires in its courtrooms generally and in particular has an interest in understanding how the resolution of this highly unusual prosecution occurred Moreover no present basis for closure exists Petitioner has not shown and cannot show that continued closure is proper Instead he has made conclusory assertions and relied on red herrings in attempting to keep the public from understanding how government responded to his solicitation of children to perform sex acts The trial court having reviewed the records in camera saw through Petitioners flimsy arguments The trial court did not depart from the essential requirements of law in ordering the records unsealed ARGUMENT I STANDARD OF REVIEW The standard of review for a petition for writ of certiorari is whether the trial court departed from the essential requirements of law See Combs State So 2d Fla Anderson E.T So 2d Fla 4th DCA II THE TRIAL COURT CORRECTLY UNSEALED THE NP A The NP A was neither properly sealed in the first instance nor is properly sealed at present The trial court did not depart from the essential requirements of law in unsealing the records A The NP A was not Properly Sealed in the First Instance The NPA a significant inducement to Petitioners acceptance of the plea was accepted for filing under seal without any deference to the publics right of access to court records Such standardless closure cannot withstand scrutiny Florida has traditionally served as a model for open government and courts It is well-settled in Florida that a trial is a public event and what transpires in the court room is public property Miami Herald Publg Co Lewis So 2d Fla quoting Craig Hamey U.S When considering a request to seal judicial records this Courts analysis must begin with the proposition that all civil and criminal court proceedings are public events records of court proceedings are public records and there is a strong presumption in favor of public access to such matters Sentinel Communications Co Watson So 2d Fla 5th DCA Indeed the people of this State added Article I Section to the Declaration of Rights in the Florida Constitution to make clear that the right of access to the records of all three branches of government is of constitutional magnitude All citizens possess the right to inspect or copy such records Plea agreements and related documents typically are public record See Oregonian Publishing Co United States District Court F.2d 9th Cir plea agreements have typically been open to the public United States Kooistra F.3d 11th Cir documents relating to defendants change of plea and sentencing could be sealed only upon finding of a compelling interest that justified denial of public access Florida law likewise recognizes a strong public right of access to documents a court considers in connection with sentencing See Sarasota Herald Tribune Div of the New York Times Co Holtzendorf So 2d Fla 2d DCA While a judge may impose whatever legal sentence he chooses if such sentence is based on a tangible proceeding or document it is within the public domain unless otherwise privileged Under Florida law closure of judicial records is warranted only under very limited circumstances In particular the party seeking closure must demonstrate that restricting public access is necessary to prevent a serious and imminent threat to the administration of justice no alternatives other than a change of venue would protect the defendants right to a fair trial and closure would be effective in protecting the rights of the accused without being broader than necessary to accomplish this purpose Miami Herald Publg Co Lewis So 2d Fla This test as well as the standard announced in Barron Florida Freedom Newspapers Inc So 2d Fla was essentially codified in former Rule of Judicial Administration now which was applicable in both criminal and civil cases Sarasota-Herald Tribune So 2d at In April the Florida Supreme Court adopted emergency amendments to Rule in response to Florida media reports of hidden cases and secret dockets a process that has come to be known as super-sealing In re Amendments to Florida Rule of Judicial Administration So 2d Fla In adopting the interim rule the Florida Supreme Court confirmed its commitment to safeguarding the publics constitutional right of access to court records which the Court held must remain inviolate Id at By its terms Rule does not apply to criminal cases however later this year the Supreme Court will consider amendments to the rule that essentially seek to apply the standards applicable in civil cases to criminal ones See In re Amendments to Florida Rule of Judicial Administration Case No Fla In the circuit below however the new Rule procedures have been in effect since September Supp.A.-2 In addition the sealing of the NPA violated principles of Florida law established long before the amendments to Rule Consequently the unsealing of these documents was proper Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion Notice Hearing or a Proper Order The non-prosecution agreement was sealed pursuant to an agreed order dated July At the time Fifteenth Judicial Circuit Administrative Order applied to requests for closure of court records in the lower court Supp.A.-3 The order requires a motion notice and a hearing none of which occurred in this case Id at ilil The order further provides that closure is proper only upon showing that the factors set forth in Lewis have been met Id at I and that the reasons supporting sealing the file must be stated with specificity in the order sealing the court record Id at I neither of which occurred in this case Contrary to Petitioners assertion Petition at neither this rule nor the common law of Florida nor the Florida constitution contemplates sua sponte closure of court records upon simple request of the Court or any party Nor was the closure in fact sua sponte as Epstein himself requested closure A at and admittedly filed the NP A in the court file under seal pursuant to an agreed order at The agreed order contains none of the findings required by Lewis or paragraph of the Administrative Order The closure order is invalid and was properly vacated Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all With respect to the sealing of the addendum to the non-prosecution agreement no procedures were put in place at all The original non-prosecution agreement was attached to the July agreed order which allowed to be filed under seal the attached document only It appears from the record that the addendum which was not attached to the July order but was filed six weeks later was simply filed and accepted under seal without any order allowing for closure Closure of the addendum was thus improper on that basis as well The trial court properly unsealed these documents No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum After the Post intervened at a June hearing on the issue of closure the trial court asked Epsteins counsel about the Posts motion specifically Epsteins counsel replied If the Posts position is the public has a right to ace access this then there is a procedure in place and ultimately the Court has to conduct a hearing and do a balancing test where you look at whether there is some compelling government interest and thats going to require an evidentiary hearing So I have no great objection to filing the Request for Closure and then having a hearing in front of the Court Supp.A.-1 at I Importantly Petitioners counsel did not assert that he had complied with these requirements but that he would The Court reset the hearing for June Petitioner filed a Motion to Make Court Records Confidential on June In it Epstein cited four reasons the NPA should remain under seal to prevent a serious and imminent threat to the administration of justice to protect a compelling government interest to avoid substantial injury to innocent This assertion apparently has been abandoned by Petitioner because his petition asserts that he has asserted three bases for confidentiality and does not include this basis Accordingly it will not be addressed except to make note of the fact that Epstein has not at any point in this proceeding identified a threat to the administration of justice much less a serious and imminent threat third parties and to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right not generally inherent in these specific type of proceedings sought to be closed at The motion failed to explain how these interests were implicated failed to address alternatives to closure and failed to explain how closure would protect the interests The lower court heard argument on June The United States Attorneys Office was provided notice of the hearing but chose not to appear A at In fact the U.S Attorneys Office has taken no position on this matter throughout the lower court proceedings and specifically informed counsel for that it had no position at At that hearing the Court found that the proper procedures to initially seal the records were not followed and then heard argument from Epsteins counsel on his June motion Epsteins counsel consented to that procedure at The Judge held that neither the State nor the U.S Government nor Epstein had shown why the NP A ought to remain confidential and ordered the records unsealed It is important to note that the State Attorneys Office appeared at the hearing for the limited purpose of objecting to the release of minor victims names which turned out to be a non-issue because the Court having reviewed the documents in camera determined that no victims names were included in the documents at The federal government as mentioned above took no position Footnote continued on next page The trial court did not depart from the essential requirements of law in unsealing the NPA Administrative Order of the Fifteenth Judicial Circuit applies to Petitioners June request to seal the records in this case Supp.A.-2 That administrative order consistent with Lewis and its progeny applies Rule standards to requests for closure of records in criminal proceedings in the Fifteenth Judicial Circuit Any order authorizing closure must contain findings that one of the interests set forth in Rule of Judicial Administration A is met and that closure is no broader than necessary to protect that interest Supp.A.-2 at see also Lewis So 2d at Motions seeking closure must include a signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis Supp.A.-2 at Epsteins initial oral request for closure failed to comply with the requirements of then-applicable law and he has never presented a sound factual or legal basis for present closure Consequently unsealing the documents was fully consistent with the essential requirements of law and did not appear at any of the hearings on this matter Nor has either agency appealed the lower courts decision Petitioner Cannot Identify a Rule Interest that Warrants Closure Though Epsteins belated written motion identified four interests set forth in Rule that purportedly warrant closure he failed to explain either in his motion or at the hearing how any of them applied Instead Petitioner asserted closure was proper because these broad interests would be served by closure principles of comity require closure and because the records contain information protected from disclosure by Federal Rule of Criminal Procedure Even though Petitioner now attempts to craft his arguments around the interests set forth in Rule the trial court cannot be said to have departed from the essential requirements of the law in holding that Epsteins burden had not been met Epsteins petition asserts that closure is necessary to protect a compelling government interest because he claims the U.S Attorneys Office who has been notified of these proceedings and has taken no position whatsoever has a compelling interest in having the confidentiality provision of its contract with Mr Epstein honored See Petition at Assuming such a provision exists the Post has not seen the document Petitioner is in no position to assert a compelling interest on the governments behalf given its decision to take no position on the matter If such an interest exists the U.S government is the party to assert it and it has specifically failed to do so The trial court did not depart from the essential requirements of law in holding that Petitioner failed to demonstrate a compelling interest in closure Epstein next asserts that closure is warranted to protect the interest of innocent third parties and identifies those third parties as Mr Epsteins co conspirators Petition at Again Mr Epstein lacks standing to assert the interests of third parties Doe Museum of Science and History of Jacksonville Inc Case No WL Fla 7th Jud Cir June plaintiff lacks standing to assert privacy interest of third party minor victims of sexual assault by defendants former employee who had been convicted copy attached at Supp.A.-4 In addition even if the third parties Mr Epstein identifies his purported co-conspirators were before the Court they would have no privacy interest in matters pertaining to their criminal conduct Post-Newsweek Stations Florida Inc Doe So 2d Fla Does whose names were implicated in criminal prostitution scheme had no right to privacy by virtue of their participation in a crime and thus their names could not be redacted from records provided to the public Thus the trial judge did not depart from the essential requirements of law in finding insufficient third-party interests to justify closure The third interest Epstein seeks to invoke is his own right to privacy See Petition at While Epstein actually does have standing to assert his own right to privacy Florida law is clear that closure is only proper to protect a substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed Fla Jud Admin A vi emphasis added Epstein argues disclosure of a plea agreement is not generally inherent in a state court plea hearing See Petition at That argument is absurd Of course Epsteins plea agreement is generally inherent in his criminal prosecution It is the very reason that prosecution ended and as the lower court recognized in accepting the plea it was a significant inducement to Petitioner to take the states deal at Moreover Floridas constitutional right to privacy is expressly subordinate to the rights of Floridians to access the records of their government To wit Article I which sets forth the right to privacy further provides this section shall not be construed to limit the publics right of access to public records and meetings as provided by law Fla Const Art I As the Florida Supreme Court has recognized the privacy amendment has not been construed to protect names and addresses contained in public records Post Newsweek So 2d at The trial court having reviewed the NP A in camera certainly had an opportunity to assess whether a privacy interest not inherent in his criminal prosecution for felony solicitation of children for prostitution is implicated by the NP A It cannot in good faith be argued that the trial court departed from the essential requirements of law in determining that no such privacy interest was implicated The Federal Courts Decisions in Case No S.D Fla Did Not Preclude the Lower Courts Orders Unsealing the NPA Nor did the trial courts rejection of Petitioners comity argument depart from the essential requirements of law In the Southern District of Florida one of the minor victims of Epstein filed a Petition for Enforcement of Crime Victims Rights Acts The victim also asked the federal court to allow her to share the NPA with third parties Judge Marra denied the motion finding as the U.S Government had argued that the NPA was not a record of the federal court First as respondent points out the Agreement was not filed in this The Post adopts and incorporates arguments and analysis on this issue in addition to the arguments it sets forth herein The Post notes that through were not part of the record below If the Court is inclined to consider these federal court pleadings then in fairness it must consider those related pleadings which are attached hereto as Supp.A.-5 through Supp.A.-7 of the Posts Supplemental Appendix case under seal or otherwise The federal court also declined to provide any relief from restrictions on the parties use and dissemination of the discovery document without prejudice at Petitioner argues that the Post should be required to seek relief in Judge Marras court He mischaracterizes the nature of the proceedings there There is no document to unseal in Judge Marras court The NPA is not a record of that court and thus any effort by the Post to obtain access to the NP A there would be futile and any order requiring it be unsealed by the lower court herein does not conflict with any decision of the federal court at In fact when Judge Marra has been asked to seal records of his court that quote the NP A he has refused to do so and has required such records to be filed in the public court file Supp.A.-5 through Supp.A Thus though the NP A is not a record of the federal court the federal court has rejected attempts to file portions of it under seal As a result portions of the NPA appear in the public court file in Page of Supp.A.-5 and paragraph of Supp.A.-6 both publicly on file in the federal court quote from the NP A In addition Epsteins own lawyers quoted extensively from the NPA in seeking to stay one of the civil suits against him A at incorporating by reference Supp.A.-5 through Supp.A-6 and Supp.A.-7 C.M.A Epstein Case No S.D Fla at Dkt pp the federal civil litigation against Epstein Supp.A-5 at Supp.A.-6 at Supp.A.-7 at pp The proverbial cat is already out of the bag Notwithstanding the NP A is a record of this lower court The lower court did not enter an order conflicting with Judge Marras rulings at expressly noting lack of conflict with Judge Marras orders and did not depart from the essential requirements of law in unsealing the NP A Federal Rule of Criminal Procedure Did Not Preclude the Lower Courts Orders Unsealing the NPA Finally unsealing the NPA did not conflict with federal law Records available under state law are sealed by federal law only when federal law absolutely conflicts with state law and requires confidentiality of the records The Supremacy Clause of the United States Constitution Art VI U.S Const comes into play only when federal law clearly requires the records to be closed and the state is clearly subject to its provisions uh Wallace Guzman So 2d Fla 3d DCA exemptions to federal Freedom of Information Act do not apply to state agencies Hous Auth of the City of Daytona Beach Gomillion So 2d Fla 5th DCA Federal Privacy Act does not exempt from disclosure records of housing authority which are open for inspection The Post adopts and incorporates arguments and analysis on this issue in addition to the arguments it sets forth herein under Florida Public Records Act Fla Sugar Cane League Inc Fla Dept of Envtl Reg Case No Fla 2d Jud Cir Sept per curiam affirmed So 2d Fla 1st DCA documents received by state agency in course of settlement negotiations to resolve federal lawsuit and confidential settlement agreement with U.S Department of Justice open to inspection because federal law did not clearly require confidentiality Supp.A.-8 Federal law imposes no such preemption of the Florida constitution and common law in this case In particular Federal Rule of Criminal Procedure does not restrict access to the NPA Federal Rule restrains grand jurors court reporters government attorneys interpreters and the like from disclosing matters occurring before the grand jury Petitioner apparently the former target of the grand jury is none of these persons His actions in filing the NP A under seal do not implicate Rule no matter what information the NP A contains The lower courts actions in unsealing the NP A likewise do not implicate Rule because the lower court also is not restrained by Rule Moreover the information contained in the NP A does not constitute matters occurring before the grand jury within the meaning of Rule The secrecy rule is limited to such matters for the purpose of preventing targets of an investigation from fleeing or tampering with witnesses or grand jurors encouraging witnesses to appear voluntarily and speak fully and frankly avoiding damage to the reputation of subjects or targets of the investigation who are not indicted and encouraging grand jurors to investigate suspected crimes without inhibition and engage in unrestricted deliberations Lockhead Martin Corp Boeing Co Supp 2d M.D Fla The rule aims to prevent disclosure of the way in which information was presented to the grand jury the specific questions and inquiries ofthe grand jury the deliberations and vote of the grand jury the targets upon which the grand jurys suspicion focuses and specific details of what took place before the grand jury In re Grand Jury Investigation of Ven-Fuel Supp M.D Fla In other words Rule is implicated if disclosure would reveal secret inner workings of the grand jury U.S Rosen Supp 2d E.D Va Disclosure of details of a government investigation that is independent of a parallel grand jury proceeding does not violate Rule Id Statements by a prosecutors office about its own investigation therefore are not covered by the secrecy rule Id at Likewise the mere mention of other targets of an investigation does not implicate the grand jury secrecy rule In re Interested Party Supp 2d D.D.C government not prohibited by Rule from disclosing plea agreement and other materials Doe Hammond Supp 2d D.D.C same Moreover when the fact or document is sought for itself independently rather than because it was stated before or displayed to the grand jury there is no bar of secrecy In re Grand Jury Investigation of Ven-Fuel Supp at Here the Post seeks to review the NP A for its own intrinsic value and not for the purpose of discerning what transpired before the grand jury now more than a year ago It is clearly well within the publics right and interest to review the NP A given the circumstances surrounding the investigation and prosecution of Petitioner as well as the civil claims by women who say Epstein sought to make them his child prostitutes These facts clearly constitute a proper basis for unsealing these improperly sealed documents Finally and even assuming for a moment that the NP A contains grand jury information which the Post doubts when the grand jurys work has concluded and the accused apprehended the veil of secrecy no longer is necessary and safely may be lifted In re Grand Jury Investigation of Ven-Fuel Supp at Here Petitioner has been convicted and nothing in the record suggests the grand jurys work is ongoing Consequently no basis exists for finding that the trial court departed from the essential requirements of law CONCLUSION The trial court was correct in unsealing the non-prosecution agreement and its addendum These materials were not properly sealed in the first instance Moreover Epstein has not and cannot provide any basis for closure at this juncture The trial court did not depart from the essential requirements of law in unsealing the NP A Its order should be affirmed and the Post should be awarded its fees and costs and such other further relief as this Court deems proper Respectfully submitted oCICERO PL lTf iJ nna Shullman lorida Bar No James Lake Florida Bar No N.E Third Avenue Suite Fort Lauderdale FL Telephone Facsimile Attorneys for The Palm Beach Post CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S Mail to Hon Jeffrey Colbath Palm Beach County Courthouse Dixie Highway Room I IF West Palm Beach FL Alexander Acosta United States Attorneys Office Southern District Australian Ave Ste West Palm Beach FL Barbara Burns Esq State Attorneys Office West Palm Beach North Dixie Highway West Palm Beach FL Jack Alan Goldberger Esq Atterbury Goldberger et al Australian Ave Ste West Palm Beach FL Robert Critton Esq Burman Critton Luttier Coleman Flagler Drive Suite West Palm Beach FL Jane Kreusler-Walsh Esq Flagler Drive Suite West Palm Beach FL Spencer Kuvin Esq Leopold-Kuvin P.A PGA Boulevard Suite Palm Beach Gardens FL and Bradley Edwards Esq and William Berger Esq Rothstein Rosenfeldt Adler East Las Olas Blvd Suite Fort Lauderdale FL on this th day of July CERTIFICATE OF TYPE SIZE AND STYLE Counsel for Petitioners certifies that this Petition is typed in point proportionately spaced Times New Roman
