NCAA Public Records Case Update

The briefs filed in this case at the First DCA will be attached as received.  We understand that oral argument has already been set for Friday morning the 25th in this case. We have now been sent copies of all the briefs in this case but the reply brief. Initial NCAA Brief; Answer Brief of Press Appellees;Answer Brief of Appellee FSUNCAA Reply Brief.

First, I will have to say that the FSU brief takes the prize for being the shortest brief without substantive authority filed urging  affirmance of a trial court that that did not just join another party’s brief that I have ever seen out of probably 5,000 briefs, and is worth reading only for that point. Its lack of argument highlights FSU’s dilemma; if the courts ultimately side with the press, all that will mean is that all the public universities in Florida will no longer be able to sign confidentiality agreements and review underlying documents in sanction cases. So, even if the Press wins this case, ultimately neither the universities nor the Press will gain anything, and all state universities will lose.  T.K. probably has not wanted to highlight this aspect, considering that he may have to lead a university legislative charge to create a public records exemption if this is the result, if he is still at FSU at that point.

As to the other arguments in the briefs, several constitutional claims are raised under the  commerce clause and first amendment, but under the principle of not reaching a constitutional claim if the case can be decided on a statutory ground, it appears the courts would not have to reach the Con Law questions. This case could probably be decided on plain statutory language.  The statute (1006.52)on the confidentiality of student records was changed just this year to incorporate the FERPA definitions, and appears to exempt documents containing student information from the public records laws. It is interesting that the records at issue in this case have been redacted by agreement to remove student information, because the mere redaction seems to admit that they are covered under this exemption. If these records are not student educational records, there would appear to be no basis to require the redaction of student information, and if the information can’t be released without redaction, then under the Florida exemption, it would appear that the entire record is exempt.  Will be interesting to see how the courts handle this interpretation.

Another interesting point in the case that is not really briefed is the trial court’s voiding of the confidential agreements, where the university had agreed as a condition of receiving access to the documents not to release them. Have not read the precise terms of the agreements, but it appears that the agreements only allowed access if the agreement was entered into, and if the agreement is void, it would appear that the university no longer has any access to viewing these documents. I have not researched, but it would seem to violate a fundamental concept of contract law to void the contract and let the university still receive the benefit of the contract, and if the university no longer has the benefit of the contract, then perhaps the issue of whether these contested documents were “received’ should be moot – could the parties be presumed to be at a pre contract status, and no documents received?  Even the Press would admit that they have no claim of public records if the university never “received” the records.

Posted on September 17th, 2009 by Woodring Law, filed under Uncategorized
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