NCAA Public Records OA
Well, the Oral Argument was held this morning at the First DCA, and based on the questions from the Panel, it does not look good for the NCAA . The panel did ask some questions on the FERPA, Public Records exemption issue, but the discussion seemed to be somewhat sidetracked on the fact the documents were voluntarily redacted, by the parties other then the NCAA. This should not be a legal factor for the FERPA question before the court, the question of whether the records at issue contained student information. One can presume based on the redactions that they did, and if so the entire records would appear to be exempt under Fla Law. Wonder if the panel may look at this further, although one judge seemed to think the FERPA issue was not before the Court.
The Con Law questions were never discussed, and the court did not seem to be interested in the argument that the university had never received the records. Here is an interesting hypothetical question on the receipt, if the NCAA had allowed the records to be read aloud for the benefit of the university on a closed circuit television station that was not recorded, would a public record have been received? Or how about if this were done over the course of a phone call. Would a public record have been received? How is it different if the documents are viewed, but no other control over the documents is given to the “recipient.” And interestingly enough FSU would likely commit a crime if it attempted to record a phone call with these same contents without the permission of the NCAA. Does not appear the digital nature of the transmission is all that relevant legally, both of the above methods are as digital as viewing on a secure web site, but unlikely to create public records. Interesting questions on what “received” means, maybe the question of receipt is the question of the ability to legally store and control.
Wonder if clarification of the law on how an entity cannot avoid public records requirements by delegating document custody or production to others, and the distinction of where a document is not public because of its creation or delegation may help.