The Strange Case of the Sealed Files

J.C. Alvarez might have won the election battle if confidential information hadn't been leaked. That was last year. Now comes the legal battle.

He had spent months on the campaign trail, maintaining a grueling schedule that required him to forgo most aspects of a normal life. Family, friends, sleep, even food were sacrificed in J.C. Alvarez's efforts last year to be elected clerk of the Dade Circuit Court, a post with an annual salary of nearly $90,000 and responsibility for 1200 employees, a $43 million budget, and all the paperwork for the county.

A deputy clerk since 1982, Jose Carlos Alvarez was running a campaign based on professional experience. "I still think I was the best candidate for the job," he says. "I know the office better than any of the other candidates who were running." To get that message across, he was up at 5:00 a.m. and often on the road until midnight. He met people throughout the county, built their confidence in him, garnered their support and -- he hoped -- their votes.

By late summer, after losing twenty pounds and sinking $70,000 of his family's money into the race, Alvarez's hard work began to show promising results. Less than two weeks before the primary election, a Mason-Dixon Opinion Research poll showed 29-year-old Alvarez leading his three Republican competitors. More important, he was thrashing by a two-to-one margin Tony Cotarelo, the incumbent clerk who had been appointed by Gov. Bob Martinez after former clerk Richard Brinker retired.

However, the good news and optimism were shattered on Friday, August 31, when the Miami Herald published an article revealing that Alvarez had twice been arrested on drug charges. Herald staff writer David Lyons reported that one of the arrests concerned a misdemeanor count of marijuana possession, and that Alvarez had subsequently completed a counseling program. The other arrest, according to the Herald story, was for possession of 4.9 grams of cocaine, though formal charges were never filed. The article also noted that both arrest records had been sealed by a circuit judge in 1981 and 1982 at Alvarez's request. "When the news about those files came out," Alvarez recalls, "it was like I had been shot through the heart. All the time and effort I'd put in, all the money I'd spent on the campaign, all the support people had given me -- it seemed like it was wasted. I felt like I lost so much credibility, and all these people around me were asking, `Who are we supporting?'"

The answer was immediate and savaging. Alvarez was bashed on Spanish-language radio airwaves, which crackled with criticism the entire weekend leading up to the September 4 primary. At the polls on Tuesday, he was knocked out of the race.

The Herald disclosure was the climax, but by no means the end, of a twisted tale that remains unresolved. Alvarez is now suing Tony Cotarelo, State Attorney Janet Reno's office, and the county clerk's office for damages stemming from the release of his sealed court files. He declines to discuss details of the original arrests, fearing more bad publicity, but it is clear that the Florida law governing sealed files allows him to act as though the arrests never took place. Which is exactly what he did when he decided to run for office.

But months before the election, Alvarez began receiving anonymous phone calls indicating that the existence of his sealed records was known to certain individuals and warning that if he did not withdraw from the clerk's race, the records would be leaked to the media and made public. He tried to ignore the threats, "but every time I got one of the calls," he says, "it would just set my nerves off. It was like they were trying to destroy me." At the same time, various news organizations, including New Times and the Herald, received similar anonymous phone calls about the sealed files.

The day the Mason-Dixon poll was released, showing Alvarez far in front, incumbent Tony Cotarelo took an extraordinarily provocative action: he filed a complaint with State Attorney Reno's office suggesting that Alvarez's old criminal records may have been improperly sealed. The next day investigators from Reno's office had a judge open the records for inspection, and determined they had been properly sealed. The investigators then prepared a report noting that Cotarelo's complaint was unfounded. Inexplicably, however, the report also included details of the original criminal charges against Alvarez, specific information that had been kept under seal.

In a sworn deposition taken for Alvarez's pending lawsuits, Herald reporter David Lyons said Cotarelo told him about the sealed files and the state attorney's investigation. Lyons subsequently requested and received a copy of the report from Reno's office, and then he wrote the article that included information about the sealed files.

Immediately after the Herald story appeared, Alvarez's attorney, David Mermell, sought an emergency hearing before a judge. He wanted an injunction to block Reno's office from further distribution of the investigative report, and to declare it sealed and confidential. The report was inaccurate and misleading, Mermell argued, because it discussed the criminal charges without providing important background details. According to Mermell, for example, in both cases Alvarez was a passenger in someone else's car. In the first case, the marijuana was not found on his person. In the second, a powdery substance found in the car turned out not to be cocaine or any other controlled substance, and no charges were ever filed.

Equally important, Mermell argued, the state attorney's office had released the report in violation of the state law governing sealed criminal files. That law strictly prohibits dissemination of any information contained in a sealed file -- with one limited exception: A person seeking employment with a criminal justice agency must reveal the existence of any sealed files. The prospective employer has the right to examine those files, but not to release any information about them.

At the emergency hearing Reno's office took the position that the investigative report should be considered a public record because Alvarez, as a candidate for clerk of the courts, was in fact seeking employment with a criminal justice agency. His prospective employers were the citizens of Dade County, and they should have the opportunity to review the investigative report, if not his sealed files, especially when someone requests the information.

Circuit Judge Philip Bloom agreed with the state, and denied the request for an injunction. Alvarez lost the election, but his attorney nonetheless asked Judge Bloom to reconsider his decision. On January 7, 1991, Bloom ruled that because the election was over and Alvarez was no longer seeking employment with a criminal justice agency, his records and the state attorney's report were sealed and confidential -- at least until such time as he might again become a candidate for the clerk's job.

Alvarez's attorney challenged Bloom's ruling before the Third District Court of Appeal. This past October the court, in a two-to-one vote, upheld Bloom's decision, saying the issue of an injunction was moot since Alvarez was no longer a candidate and his records were not in any imminent danger of being disclosed. Left unanswered, though, were two compelling questions: Did anyone break the law last year by releasing information contained in Alvarez's sealed files? And what should happen to those files next time he campaigns for the clerk's job?

The pending lawsuits filed by Alvarez against Janet Reno's office, the clerk's office, and Tony Cotarelo may resolve both questions. Alvarez alleges that all three were negligent in performing their duties and that they violated the sealed-records law -- Reno's office by releasing the investigative report, and Cotarelo for discussing with Herald reporter David Lyons the files, the investigation, and the report. The lawsuit against Cotarelo, however, goes further, claiming that he disclosed confidential information to Lyons "with malicious intent and purpose," that his actions "constituted a corrupt use of his official position," and that he did so in order to "secure personal benefit to [his] own lagging campaign."

"I was working hard and succeeding," Alvarez says today, "and suddenly I was a threat to the governor's appointee. I was making the governor look bad because I was beating his guy. I'm sure Cotarelo wasn't happy about that. The state attorney's office released my files and they've indicated that if I became a candidate for clerk of the court, they would release them again in total ignorance of the law. They are not a dictator. They are supposed to go through the courts and do things right, but they have not accepted responsibility for what they did."

Still, Alvarez says he won't let his past troubles keep him from seeking the job again. "A few bad apples do not make everybody in Dade County bad," he says. "There's a lot of good people here who supported me and believe that what the state attorney's office did was wrong. There's a few rotten ones, too, but I can't let that get in my way."

In the end, Alvarez's case may mean as much to taxpayers' pocketbooks as to their legal rights. State Attorney Reno has hired a private law firm to represent her office. County Clerk Marshall Ader, who won the election and whose office is named in Alvarez's lawsuit, is looking for one. And Tony Cotarelo, no longer a public servant, is being represented by the county attorney's office, which says it provides legal counsel to any past or present county employee sued for their conduct while on the job.

"When news about those files came out, it was like I had been shot through the heart. People were asking, `Who are we supporting?'"

Tony Cotarelo took a provocative action: he told Reno's office that Alvarez's criminal records may have been improperly sealed.

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