FL--Victims applaud unsealing of Scouting predators’ files

For immediate release: Thursday, Aug. 20

Statement by David Clohessy of St. Louis, Director of SNAP, the Survivors Network of those Abused by Priests (314 566 9790, [email protected], [email protected])

A Miami judge is ordering the Boy Scouts to turn over pages and pages of records about proven, admitted and credibly accused predators that will eventually be made public. This move will make kids safer and deter child sex crimes and cover ups. We are thrilled that this information will be disclosed.

http://www.pathtojustice.com/blog

Circuit Court Judge Jose M.  Rodriguez is rejecting efforts by the Scouts to keep these long-secret records confidential.

For far too long, our court system has seemingly valued the privacy of adults over the safety of kids. Ever so gradually, this trend is being reversed, and not a moment too soon.

We hope the disclosure of these files will prompt others who were sexually assaulted by Scout officials to come forward, expose predators, protect kids, and start healing. And we hope this ruling will prod other employers and institutions to “come clean” about child sex crimes and cover ups since it’s increasingly clear, as Martin Luther King said, that “no lie lives forever.”

The case is called G.E. Doe v. Boy Scouts of America and South Florida Council of Boy Scouts of America.

In the order, the judge rightly notes that: “Since child abuse thrives in secrecy, there is a compelling interest in producing these files as it increases transparency on the potential mishandling of sex abuse claims. A society interested in protecting children from criminal assaults would not reasonably leave to the discretion of a children’s social club the disclosure of information regarding criminal assaults on children.”

The victim is represented by Adam D. Horowitz of Fort Lauderdale (800-400-1098, [email protected]).

(SNAP, the Survivors Network of those Abused by Priests, is the world’s oldest and largest support group for clergy abuse victims. SNAP was founded in 1988 and has more than 20,000 members. Despite the word “priest” in our title, we have members who were molested by religious figures of all denominations, including nuns, rabbis, bishops, and Protestant ministers. Our website is SNAPnetwork.org)

Contact - David Clohessy (314-566-9790 cell, [email protected], [email protected]), Barbara Dorris (314-503-0003 cell, [email protected]), Barbara Blaine (312-399-4747, [email protected])

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

CIVIL DIVISION

GE DOE, CASE NO.: 14-23330 CA 15

Plaintiff, v. 

BOY SCOUTS OF AMERICA, INC., a

Congressional Chartered Corporation, authorized to do business in Florida; and SOUTH FLORIDA

COUNCIL, INC., BOY SCOUTS OF AMERICA, a Florida Corporation,

Defendants.

_____________________________________________/

ORDER DENYING DEFENDANTS’ MOTION TO DETERMINE CONFIDENTIALITY

This Cause came before the Court on the above motion, and the Court, having reviewed

the motion and response, considered the arguments of counsel, and being otherwise fully advised

in the premises, hereby finds as follows:

FACTS & PROCEDURAL HISTORY

In 1976 and 1979, Scoutmaster Robert Grumet [Grumet] and Assistant Scoutmaster Jerold Mackinnon [Mackinnon] respectively joined the Boy Scouts, and between 1983 and 1984, the Plaintiff was a member of their scouting troop. He was 9-10 years old at the time and is said to have repeatedly been sexually abused by these individuals. Though the Plaintiff did not report the abuse, Grumet and Mackinnon ultimately resigned from the Boy Scouts in 1987 for allegedly abusing other scouts. Pursuant to the Defendants’ general policies and practices to document accusations that ultimately render an adult ineligible to volunteer with the Boy Scouts, their names were also entered into the confidential database the Defendants have maintained for more than eighty years of “Ineligible Volunteer” [IV] personnel files.

On September 14, 2014, the Plaintiff filed the instant action for intentional infliction of emotional distress against the Defendants, who allegedly knew that Grumet and Mackinnon were pedophiles yet allowed them to remain in scouting. More specifically, the Plaintiff asserts the IV files familiarized the Defendants with “the particular behavioral characteristics and grooming techniques of pedophiles and child molesters.” Am. Compl. ¶ 35. Grumet’s and Mackinnon’s IV files were produced via normal discovery, but because these men are not parties in the case, the Defendants moved to seal these particular documents of the court file on May 29, 2015. This motion went to hearing on June 19, 2015, and because there are reasonable and lesser restrictive means available to address the Defendants’ privacy concerns, the motion is DENIED.

DISCUSSION

Florida Judicial Administration Rule 2.420 governs “the public’s access to court records” as it allows a court to seal case records in order to protect confidential information from public disclosure. Poole v. S. Dade Nursing & Rehab. Ctr., 139 So. 3d 436, 439 (Fla. 3d DCA 2014).

However, “[a] strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.” BDO Seidman, LLP v. Banco Espirito Santo Intern., Ltd., 2009 WL 928484 *1 (Fla. 3d DCA 2009); see also Rocket Group, LLC v. Jatib, 114 So. 3d 398, 400 (Fla. 4th DCA 2013) (“Except as provided in Florida Rule of Judicial Administration 2.420, concerning ‘Public Access to Judicial Branch Records,’ ‘[t]he public shall have access to all records of the judicial branch of government.’”) (quoting Fla. R. Jud. Admin. 2.420(a)). Accordingly, “[a] party seeking to initially seal the filed records of court proceedings has the burden to establish that (1) closure is necessary to protect a recognized interest, (2) no reasonable alternatives to closure are available to achieve the desired result, and (3) the level of closure imposed is the least restrictive means necessary to accomplish its purposes.” Carter v. Conde Nast Publ’ns, 983 So. 2d 23, 25 (Fla. 5th DCA 2008) (citing Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (establishing the test for sealing court records and proceedings)). The instant Defendants, though, have failed to satisfy the second and third prongs of this test.

Here, the Defendants seek to seal Grumet’s and Mackinnon’s IV files in order to “avoid substantial injury to innocent third parties,” which is a recognized confidentiality interest. Fla. R. Jud. Admin. 2.420(c)(9)(v). More specifically, they wish to protect the privacy rights of these men and shield them from conviction in the court of public opinion of a heinous crime when no criminal charges have been filed. The Florida Supreme Court has stated that “substantial injury” can include privacy concerns that are protected by article 1, section 23 of Florida’s Constitution. Barron, 531 So. 2d at 118.

On July 13, 2015, this Court permitted Mackinnon to intervene in this case for the sole purpose of asserting his rights regarding the motion at issue.  However, a review of the IV files at bar reveals that sealing these records in their entirety is inappropriate. There, for instance, are file entries that do not mention the alleged misconduct, or they only generally mention “allegations” without specifying the issue; these items include generic cover letters to reports, acknowledgment of receipt letters, and general suspension notices to Grumet and Mackinnon. There is no basis for sealing these particular documents.

Nevertheless, these files also contain the names of alleged child abuse victims and other identifying information about them. Such information must be redacted. Fla. R. Jud. Admin. 2.420(d)(1)(B)(xiii) (stating that “[p]rotected information regarding victims of child abuse or sexual offense” must “be maintained as confidential”).

As for the remaining file entries, this Court concludes that they must be released as well. Several courts, after all, have reviewed these same materials against the same arguments made in this case, and only one has denied production. See, e.g. Doe 6 v. Boy Scouts of Am., 2013 WL 1092146 (Del. Super. 2013); Jack Doe 1 v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 280 P.3d 377 (Or. 2012); Doe v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 2012 WL 2061417 (D. Idaho 2012); T.S. v. Boy Scouts of Am., 138 P.3d 1053 (Wash. 2006); but see Juarez v. Boy Scouts of Am., Inc., 97 Cal. Rptr. 2d 12 (Ct. App. 2000). Due to these decisions, all of the Boy Scouts’ IV files between 1948 and 1985 are public record, and some were published without redaction. Against this backdrop of already public IV files, the documents under review are relevant in determining whether the Defendants had specialized knowledge of child sex abuse. In addition, the Court finds that since child abuse thrives in secrecy, there is a compelling interest in producing these files as it increases transparency on the potential mishandling of sex abuse claims.2  See T.S., 138 P.3d at 1059 (“[A] society interested in protecting children from criminal assaults would not reasonably leave to the discretion of a children’s social club the disclosure of information regarding criminal assaults on children.”).

The Court, nonetheless, is cognizant of the stigma that child abuse allegations have on one’s life, and thus, in recognition of their due process rights, it considered redacting Grumet’s and Mackinnon’s names from the IV files like other courts have done. See Doe 6, 2013 WL

The Florida Legislature’s recent modifications to Florida law regarding child abuse is further evidence of this compelling interest; it, for instance, is judicially noticed that the Legislature has repealed the statute of limitation for child abuse crimes, instituted new mandatory reporting requirements, and changed Florida’s evidentiary code to allow child abuse recordings to be entered into evidence. 1092146 at *4. However, a review of the court file reveals that Grumet’s and Mackinnon’s names are on numerous other docket entries. These other items include “obviously public documents” such as the complaint, the Defendants’ October 17, 2014, motion to dismiss and/or strike the complaint, and the Defendants’ May 19, 2015, response to the Plaintiff’s April 23, 2015, motion to compel. See Banco 2009 WL 928484 *1 (refusing to seal “the verdict form, final judgment, civil supersedeas bonds, pleadings and hearing transcripts”); Tracfone Wireless,  Inc., v. Ghaly, Case No. 14-704-CA-22 (Fla. 11th Cir. Ct. Feb. 26, 2015) (denying unopposed motion to seal court file consisting of “subpoena notices and objections, various court motions and requests for hearings, and court orders”). Redacting the IV files at issue, therefore, would be an empty gesture as it would not shield their identities.

Moreover, because the Defendants themselves published Grumet’s and Mackinnon’s names in their other court filings before moving for a protective order eight months after the complaint was filed, the Court finds that they waived the confidentiality as to whom they investigated for sexual misconduct in this case. See Kavanaugh v. Stump, 592 So. 2d 1231, 1232 (Fla. 5th DCA 1992) (holding that petitioners waived the confidentiality of the customers’ names they listed in counterclaim); see also Kimmick v. U.S. Bank Nat. Ass’n, 83 So. 3d 877, 880 (Fla. 4th DCA 2012) (stating the three-part waiver test); Miami Dolphins, Ltd. v. Genden & Bach, P.A., 545 So. 2d 294, 296 (Fla. 3d DCA 1989) (“Generally, one can waive any contractual, statutory or constitutional right. The doctrine of waiver can encompass not only the intentional or voluntary relinquishment of known rights, but also conduct that warrants an inference of the relinquishment of those rights.”). However, the Court also recognizes that the inclusion of Grumet’s and Mackinnon’s names in the IV files is far more damaging evidence of abuse than the other docket entries. Therefore, because nothing in Rule 2.420 requires the “immediate” release of judicial records, this Court stays production of the unsealed IV files until the conclusion of this case and any appeals.

CONCLUSION

Accordingly, for the reasons stated above, it is hereby ADJUDGED that:

1) The Defendants’ motion is DENIED.

2) Upon conclusion of this trial and any appeals, the entire IV files at issue shall be unsealed, minus the aforementioned redactions for any information that might reveal the identities of the alleged child abuse victims. In the event that the documents discuss multiple victims and families, pseudonyms such as “Victim 1” or “Family 1” can be used for clarity purposes.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on

08/14/15.

_____________________________

JOSE M RODRIGUEZ

CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email

confirmation which includes all emails provided by the submitter. The movant shall

IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or

hand-delivery, to all parties/counsel of record for whom service is not indicated by the

accompanying 11th Circuit confirmation, and file proof of service with the Clerk of

Court.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

CC: ALL PARTIES AND COUNSEL OF RECORD