Court of Appeal

IN THE DISTRICT COURT OF APPEAL NATIONAL COLLEGIATE ATHLETIC FIRST DISTRICT, STATE OF FLORIDA ASSOCIATION, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, v. DISPOSITION THEREOF IF FILED THE ASSOCIATED PRESS; CAPE CASE NO. 1D09-4385 PUBLICATIONS , INC., d/b/a Florida Today; COLLIER COUNTY PUBLISHING LLC, d/b/a Naples Daily News; FIRST AMENDMENT FOUNDATION ; FLORIDA PRESS ASSOCIATION ; LAKELAND LEDGER PUBLISHING CORPORATION, d/b/a The Ledger; MEDIA GENERAL OPERATIONS , INC., d/b/a WFLA-TV, tbo.com, and The Tampa Tribune; MIAMI HERALD MEDIA COMPANY, d/b/a The Miami Herald; MORRIS PUBLISHING GROUP LLC, d/b/a The Florida Times- Union; NEWS-JOURNAL C ORPORATION, d/b/a Daytona Beach News -Journal; NYT MANAGEMENT SERVICES INC., d/b/a The Gainesville Sun and Sarasota Herald-Tribune; O RLANDO SENTINEL COMMUNICATIONS COMPANY, d/b/a Orlando Sentinel; PENSACOLA NEWS JOURNAL , THE NEWS-PRESS and WTLV, divisions of Multimedia Holdings Corporation; SCRIPPS HOWARD BROADCASTING COMPANY, d/b/a WPTV -TV; SCRIPPS TREASURE COAST PUBLISHING LLC, d/b/a Stuart News, Vero Beach Press Journal, and Ft. Pierce Tribune; SUN SENTINEL, INC., d/b/a South Florida Sun -Sentinel; 1 TAMPA BAY TELEVISION, INC., d/b/a WFTS-TV; TALLAHASSEE DEMOCRAT, a division of Federated Publications, Inc.; WJXX, a division of Gannett River States Publishing Corporation; and WTSP, a division of Pacific and Southern Company, Inc.; FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, T.K. WETHERELL and GRAYROBINSON, P.A., Appellees. _______________________________/ Opinion filed October 1, 2009. An appeal from the Circuit Court for Leon County. John C. Cooper, Judge. Leonard J. Dietzen, III, and Matthew J. Carson of Rumberger, Kirk & Caldwell, P.A., Tallahassee; Linda J. Salfrank of Spencer, Fane, Britt & Browne, Kansas City, MO, for Appellant. Gregg D. Thomas, Carol J. LoCicero, Rachel E. Fugate and James J. McGuire of Thomas, LoCicero & Bralow, PL, Tampa, David S. Bralow of Thomas, LoCicero & Bralow, PL, New York, NY, for Appellees The Associated Press, Cape Publications, Inc., Collier County Publishing LLC, First Amendment Foundation, Florida Press Association, Lakeland Ledger Publishing Corporation, Media General Operations, Inc., Miami Herald Media Company, Morris Publishing Group LLC, News-Journal Corporation, NYT Management Services, Inc., Orlando Sentinel Communications Company, Multimedia Holdings Corporation, Scripps Howard Broadcasting Company, Scripps Treasure Coast Publishing LLC, Sun- Sentinel, Inc., Tampa Bay Television, Inc., Federated Publications, Inc., WJXX, Gannett River States Publishing Corporation, and WTSP; Betty J. Steffens, General Counsel, Dayton M. Cramer, Deputy General Counsel and Linda C. Schmidt, Associate General Counsel, Tallahassee, for Florida State University Board of Trustees and T.K. Wetherell in his official capacity as President of Florida State University. 2 Bill McCollum, Attorney General, Alexis Lambert, Deputy General Counsel, Scott D. Makar, Solicitor General, and Craig D. Feiser, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Amicus Curiae Attorney General Bill McCollum. PADOVANO, J. The National Collegiate Athletic Association appeals a final judgment requiring it to disclose certain documents to The Associated Press and other news organizations joined as plaintiffs in an action under Chapter 119, Florida Statutes. We find no error in the decision by the trial court. Accordingly, we affirm the judgment for the plaintiffs. Records created and maintained by the NCAA are not generally subject to public disclosure. However, the documents at issue in this case were examined by lawyers for a public agency, Florida State University, and used in the course of the agency‟s business. Because the documents were received in connection with the transaction of official business by an agency, they are public records. The NCAA has failed to show that an exception applies under state or federal law, and thus the records must be disclosed. I. The events leading to the present controversy began in March 2007, when the University became aware of allegations that a learning specialist and an 3 academic tutor had provided improper assistance to a number of students, some of whom were participating in athletic programs. The University engaged the services of a private firm to conduct an internal investigation on its behalf. On February 14, 2008, after the completion of a comprehensive self-investigation of academic misconduct, the University reported its findings to the NCAA. Several months later, on June 10, 2008, the NCAA issued a notice of allegations to the University. The effect of the notice was to formally initiate a disciplinary proceeding regarding the misconduct the University had previously reported to the NCAA. The University submitted a response to the allegations, and the case was called up for a hearing on October 28, 2008, before the NCAA‟s Committee on Infractions. The transcript of the hearing before the committee has not been made public. On March 6, 2009, the NCAA‟s Committee on Infractions issued an infractions report. As a part of the report, the committee imposed penalties against the University for the academic misconduct, including an order that certain athletic victories be vacated. The report was provided to the University in paper form, and, after the names of the students had been redacted, the report was made public. The University then retained the GrayRobinson law firm to file an appeal to the NCAA from the penalties imposed by the committee. Because the work of the committee was done in private, the lawyers had to make an arrangement with the 4 NCAA to obtain access to the records relevant to the enforcement proceeding. The arrangement was as follows. The NCAA put images of the transcript of the October 28, 2008 hearing and other records on a secure Internet website. Lawyers for GrayRobinson signed a confidentiality agreement with the NCAA promising not to disclose any information they obtained from the website. The NCAA then gave the lawyers a password they could use to obtain the information from the website. This is the system the NCAA uses with all of its member institutions. Julie Roe, the Director of Enforcement for the NCAA, testified that the system was developed in 2007 as part of an effort to go “paperless.” She referred to the secure website as the “custodial website.” Authorized representatives of member institutions could go to the website to obtain access to information they needed to resolve their disputes with the NCAA, and, at the same time, the NCAA could avoid public disclosure of confidential sources of information used in its investigations. After they had signed the confidentiality agreement, the lawyers at GrayRobinson examined the transcript of the October 28, 2008 hearing before the Committee on Infractions. The lawyers then used the information in the transcript to prepare the University‟s appeal to the NCAA. They filed the initial brief on behalf of the University on April 23, 2009, and the Committee on Infractions filed 5 a written response on June 2, 2009. The response was submitted to the NCAA as a part of the appeal. It was considered to be the property of the NCAA and it was not disclosed to the public. The plaintiffs in the present case sought disclosure of documents in the NCAA disciplinary proceeding and appeal and, when the request was denied, they filed suit under Chapter 119, Florida Statutes against the NCAA, Florida State University, its President, and the GrayRobinson law firm. In the early stages of the case, the NCAA offered to produce the June 2, 2009 response by the Committee on Infractions. However, the NCAA declined to provide the response in its original format, and the document that was given to the plaintiffs was a version of the report that had been retyped by University personnel from the image on the custodial website. The plaintiffs did not regard the retyped version of the response as compliance with their public records request. The public records case was tried before the court on August 20, 2009. Two documents were at issue in the litigation: the transcript of the October 28, 2008 hearing before the NCAA Committee on Infractions and the Committee‟s June 2, 2009 response to the University‟s appeal. The plaintiffs argued that both documents were public records. The NCAA argued that the documents were not public records and, alternatively, that they were exempt under federal laws protecting student records. 6 On August 28, 2009, the trial court rendered judgment for the plaintiffs. In summary, the trial court concluded that the transcript and response were public records because they were received by an agency of the state government and that they were not exempt under federal laws designed to protect students because they did not contain information directly related to a student. The court ordered the immediate disclosure of the transcript and response, but the NCAA appealed to this court, and the judgment by the trial court was stayed pending the disposition of the appeal. II. The issues presented in this appeal are governed by the organic law of the state. The Florida Constitution creates a broad right to inspect the records of any state or local governmental body. Article I, section 24(a) of the Florida Constitution grants “[e]very person . the right to inspect or copy any public record made or received in connection with the official business of any public body, officer or employee of the state, or persons acting on their behalf.” The right to inspect a public record in Florida is not one that is merely established by legislation, it is a right demanded by the people. Article I, section 24(c) of the Florida Constitution provides that the right to inspect public records shall be “self-executing.” Legislation is not required to implement the right, but section 24(c) expressly grants authority to the Florida 7 Legislature to “enact laws governing the enforcement of this section.” The rights created by the constitution may be enforced under the procedures in the public records law, Chapter 119, Florida Statutes.

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