Florida Court Finds Confidentiality Agreement Does Not Preclude Release under Florida’s Public Records Act

The Associated Press v. Florida State University Board of Trustees, Case No: 09-CA-2298 (Circuit Court of the Second Judicial Circuit of Florida, August 28, 2009) stems from allegations of academic misconduct against Florida State University’s (FSU) athletic program in March 2007.  Upon becoming aware of the allegations, FSU conducted a comprehensive investigation and reported its findings to the National Collegiate Athletic Association (NCAA).  In turn, the NCAA issued a Notice of Allegations to FSU, and conducted a hearing with respect to the allegations in October 2008.  In March 2009, the NCAA’s Committee on Infractions imposed various penalties against FSU, including vacating certain past wins.  In response, FSU hired GrayRobinson, a Florida law firm, for representation on appeal.

The NCAA allows a party appealing an infractions decision to view documents on the record of the appeal via the NCAA’s secure website, which is password protected and prohibits saving, copying, downloading, or printing of any documents viewed thereon.  To further maintain confidentiality of documents on its site, the NCAA requires a user to execute a confidentiality agreement prior to accessing the site.  Accordingly, on March 27, 2009, attorneys from GrayRobinson executed confidentiality agreements in order to gain access to various documents on the record, via the NCAA’s secure website, while preparing FSU’s appeal.  GrayRobinson filed an initial appeal brief on April 23, 2009 via the website.  On June 2, the NCAA issued a written response, made available to FSU on the secure website. 

No physical representation of the written response were received by FSU or GrayRobinson, and the only access to the written response and related documents was through accessing the NCAA website under the terms of the executed confidentiality agreement.

Plaintiffs in this case include the Associated Press and 25 other media organizations.  In a letter dated June 4, Plaintiffs requested the June 2 NCAA response from FSU and the NCAA.  After initially failing to provide the response, Plaintiffs filed their complaint for this case in June 15, 2009.  The next day, the NCAA informed FSU that it would not object to a disclosure of a transcript of the response, in compliance with any applicable privacy laws and exemptions, though the NCAA refused FSU’s request for a usable copy of the response.  On June 18, FSU transcribed the response from the NCAA website, though redacting identifiable information of students, and provided the redacted response to the public.

In this litigation, Plaintiffs sued under the Florida Public Records Law seeking the transcript of the October 2008 hearing and an actual copy, as opposed to the redacted transcript, of the NCAA’s June 2009 response.  The Defendants are FSU’s board of trustees, the NCAA, and GrayRobinson. 

Public Record Includes Any Reviewed Document

In determining the scope of the Florida Public Records Law, the court reviewed §119.011(12) Fla. Stat. and Article I, Section 24, which require dissemination of public records.  Specifically, Article I, Section 24 of the Florida Constitution, which grants public access to 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.”  Thus, the issue before the Court is whether the October hearing transcript and the June response are public records, and thus subject toFlorida’s open records law.  Specifically, the Court must determine whether these documents were “received” by GrayRobinson (i.e., FSU’s agent).  In other words, the court must determine if the term “received” encompasses review of the documents on the NCAA’s website.

The NCAA argues that documents must be physically received or possessed in order to be “received” for purposes of the statute.  Thus, documents that are merely viewed on the NCAA’s Custodial site are not received and, therefore, not public records.  The Plaintiffs argue that the NCAA’s interpretation is too narrow, and FSU’s agents’ viewing of the records on the site sufficiently constitutes receipt. 

The Court agrees with the Plaintiffs.  In rendering his decision, Judge Cooper cited City of Miami v. Berns, 245 So.2d 38 (Fla. 1971) and Dade Aviation Consultants v. Knight Ridder, Inc. 800 S.2d 302 (Fla. 3d DCA 2001)for the proposition that it is well settled law that the Public Records Act is to be liberally construed in favor of releasing documents, and that any doubts must be in favor of disclosure.  Under this, Judge Cooper found the NCAA’s definition of the term “received” as too narrow.  Because the documents in question were viewed by FSU’s agents on their behalf, were used by FSU’s agents in representing FSU on appeal, and were in connection with the official business of FSU, the documents were “received” and are therefore public records under statute.  In particular, Judge Cooper reasons that “[t]o adopt a narrow position that ‘received’ requires physical delivery would emasculate the policy of open government embodied in the Public Records Act and Florida’s Constitution and would provide clever proponents of secret communication with government an easy mechanism for avoiding the public’s right to know what its government is doing.”

Moreover, with respect to the June response, the transcript provided by FSU is not sufficient due to its divergent format from the original response.  However, Judge Cooper does hold that FSU and GrayRobinson did comply with the Public Records Act with respect to the June response, as the parties provided to the Plaintiffs what they believed they had available at the time (i.e., the transcript). 

Accordingly, the NCAA is responsible for the public records requested as the custodian thereof “because it is the entity that has the primary, ‘original’ copy of the records requested.”  In particular, Floridacourts have recognized that public records may be in the custody of private entities, though the private entity assumes the same responsibilities therefore under the law.  Times Pub’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990).  These responsibilities include ensuring access to the public.  Merely because the NCAA maintained the records and did not supply the same in physical form to FSU or GrayRobinson did not preclude their being considered public records.  Thus, since these records were created for use in official public business for a state agency and its agent GrayRobinson, these records were subject toFlorida’s Public Record Act.

However, the Court does disclaim that the ruling is not a determination on all records created by the NCAA, but only those in issue here that are received by FSU via its agent. 

Confidentiality Agreement Void As Contrary to Law

In addressing the fact that FSU and GrayRobinson executed confidentiality agreements in order to participate in the appeals process, Judge Cooper held that such an agreement is void.  Specifically, Judge Cooper cited to Sepro Corp. v. Dept. of Environmental Protection, 839 So.2d 781 (Fla. 1st DCA 2003) & Tribune Co. v. Hardee Memorial Hosp., 19 Media L. Rep. 1318 (Fla. 10th Cir. Ct. August 19, 1991) for the proposition that such agreements are “void and unenforceable under Florida Law.”  Thus, while the confidentiality agreements made it difficult for FSU to provide access for fear of NCAA penalties, such “self-imposed barriers” are not a legal excuse from compliance with the Florida Public Records Act.   Thus, since it is ultimately the responsibility of the state agency to prove that a public record is not releasable and absent a statutory exemption, the NCAA must provide to the Plaintiffs the version of the June response posted on its website (though with the redactions), and must provide to the Plaintiffs the October hearing transcript.

Significance for Licensors of IP to States

As explained in greater detail in Chapter 5 of Intellectual Property in Government Contracts: Protecting and Enforcing IP at the State and Federal Level (Oxford University Press 2009), it is important to recognize that, like licenses with the Federal government, licenses with State governments are subject to specific State laws.  Of special concern for licensors are the various State open records acts, which greatly restrict a State official’s ability to restrict information used by the official in an official capacity.  Therefore, The Associated Press v. Florida State University Board of Trustees presents a reminder that licensors to State agencies need to take extra care to ensure that their license is enforceable against that agency.


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