NCAA Public Records Opinion Issued

Well, the First DCA issued its opinion today in the NCAA Public records case, and no real surprises, given the oral argument. The court held the records were public because they were received by a public agency.  The court  did specify that it was not deciding whether the requested records were protected under FERPA if they had not been redacted, and seemed to hold that a record with student information  redacted is not  is not protected under FERPA.  Only interesting note I see from deciding the opinion this way is that the NCAA may never have had public records not subject to FERPA, since the court declined to reach this issue.  I think the redacted copies were only in the possession of FSU and their law firm, NCAA had unredacted copies, but I doubt the court intended this result. 09-4385.pdf (application/pdf Object).

Other interesting result of this case, perhaps not really intended , and one that I suspect will prove unenforceable, is the holding that a private record, that only becomes a public record when provided to a public agency, also becomes a public record in the custody of a private entity.  Taking the legal holding at face value, the result is that a private citizen , exercising his right to petition the government for a redress of grievances, now is liable for attorney fees if he does not provide a timely copy of his grievance to someone who requests that copy of the now public record from him.  If this is a reasonable interpretation of Florida’s public record law, I see this aspect dying a fiery death under the First Amendment if applied this way.

Biggest question though is whether the NCAA will ever provide this information to Florida Universities in the future if providing private information makes it a public record.