AP v. NCAA 1st DCA Opinion from Westlaw

18 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400
(Cite as: 18 So.3d 1201)

ternet website used by member institutions in
resolving NCAA disputes, with those documents
District Court of Appeal of Florida, consisting of a transcript of NCAA disciplinary
First District. proceeding involving state university and the re-
NATIONAL COLLEGIATE ATHLETIC ASSOCI- sponse of the NCAA infractions committee to the
ATION, Appellant, university's NCAA appeal. The Circuit Court, Leon
v. County, John C. Cooper, J., 2009 WL 2762352,
The ASSOCIATED PRESS; Cape Publications, rendered judgment for news organizations. NCAA
Inc., d/b/a Florida Today; Collier County Publish- appealed.
ing LLC, d/b/a Naples Daily News; First Amend-
ment Foundation; Florida Press Association; Lake- Holdings: The District Court of Appeal, Padovano,
land Ledger Publishing Corporation, d/b/a The J., held that:
Ledger; Media General Operations, Inc., d/b/a (1) documents were public records;
WFLA-TV, tbo.com, and The Tampa Tribune; (2) documents did not qualify as education records
Miami Herald Media Company, d/b/a The Miami under federal Family Educational Rights and Pri-
Herald; Morris Publishing Group LLC, d/b/a The vacy Act (FERPA);
Florida Times-Union; News-Journal Corporation, (3) public records law did not violate dormant
d/b/a Daytona Beach News-Journal; NYT Manage- Commerce Clause as applied; and
ment Services Inc., d/b/a The Gainesville Sun and (4) application of public records law did not violate
Sarasota Herald-Tribune; Orlando Sentinel Com- NCAA's right to freedom of association.
munications Company, d/b/a Orlando Sentinel;
Pensacola News Journal, The News-Press and Affirmed.
WTLV, divisions of Multimedia Holdings Corpora-
West Headnotes
tion; Scripps Howard Broadcasting Company, d/b/a
WPTV-TV; Scripps Treasure Coast Publishing [1] Records 326 50
LLC, d/b/a Stuart News, Vero Beach Press Journal,
and Ft. Pierce Tribune; Sun Sentinel, Inc., d/b/a 326 Records
South Florida Sun-Sentinel; Tampa Bay Television, 326II Public Access
Inc., d/b/a WFTS-TV; Tallahassee Democrat, a di- 326II(B) General Statutory Disclosure Re-
vision of Federated Publications, Inc.; WJXX, a di- quirements
vision of Gannett River States Publishing Corpora- 326k50 k. In General; Freedom of Inform-
tion; and WTSP, a division of Pacific and Southern ation Laws in General. Most Cited Cases
Company, Inc.; Florida State University Board of Florida courts construe the public records law liber-
Trustees, T.K. Wetherell and GrayRobinson, P.A., ally in favor of the state's policy of open govern-
Appellees. ment. West's F.S.A. § 119.01 et seq.
No. 1D09-4385.
[2] Records 326 50
Oct. 1, 2009.
Rehearing Denied Oct. 12, 2009. 326 Records
326II Public Access
Background: News organizations brought action 326II(B) General Statutory Disclosure Re-
against National Collegiate Athletic Association ( quirements
NCAA) under public records law, seeking disclos- 326k50 k. In General; Freedom of Inform-
ure of documents placed by NCAA on a secure In- ation Laws in General. Most Cited Cases

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: 18 So.3d 1201)

If there is any doubt about the application of the appeal within the NCAA. West's F.S.A. §§ 119.01
public records law in a particular case, the doubt is (2)(a), 119.011(12), 119.07(1)(a).
resolved in favor of disclosing the documents.
West's F.S.A. § 119.01 et seq. [5] Records 326 54

[3] Records 326 54 326 Records
326II Public Access
326 Records 326II(B) General Statutory Disclosure Re-
326II Public Access quirements
326II(B) General Statutory Disclosure Re- 326k53 Matters Subject to Disclosure;
quirements Exemptions
326k53 Matters Subject to Disclosure; 326k54 k. In General. Most Cited
Exemptions Cases
326k54 k. In General. Most Cited Term “received” in public records law section de-
Cases fining term “public record” refers not only to a situ-
Public records law is not limited to paper docu- ation in which a public agent takes physical deliv-
ments but applies, as well, to documents that exist ery of a document, but also to one in which a public
only in digital form. West's F.S.A. § 119.01(2)(a). agent examines a document residing on a remote
computer. West's F.S.A. §§ 119.01(2)(a), 119.011
[4] Records 326 54 (12).

326 Records [6] Records 326 54
326II Public Access
326II(B) General Statutory Disclosure Re- 326 Records
quirements 326II Public Access
326k53 Matters Subject to Disclosure; 326II(B) General Statutory Disclosure Re-
Exemptions quirements
326k54 k. In General. Most Cited 326k53 Matters Subject to Disclosure;
Cases Exemptions
Documents placed by National Collegiate Athletic 326k54 k. In General. Most Cited
Association ( NCAA) on a secure Internet website Cases
used by member institutions in resolving NCAA A document that is used in the course of public
disputes, with those documents consisting of a tran- business is a “public record” if it was made by a
script of an NCAA disciplinary proceeding in- public official or if was received by the official; it
volving state university and the response of NCAA is not necessary to also show that the document was
infractions committee to university's NCAA appeal, made, partly made, or modified in some way by the
were “public records” under public records law; al- official. West's F.S.A. § 119.011(12).
though documents were prepared and maintained
by a private organization, they were received by [7] Records 326 54
agents of a public agency and used in connection
326 Records
with public business, in that the purpose of the tran-
326II Public Access
script was to perpetuate the information presented
326II(B) General Statutory Disclosure Re-
to the infractions committee in the event the parties
quirements
wished to appeal the sanction imposed by the com-
326k53 Matters Subject to Disclosure;
mittee, and the response was designed to commu-
Exemptions
nicate information to the body that would hear the


(Cite as: 18 So.3d 1201)

326k54 k. In General. Most Cited 326k53 Matters Subject to Disclosure;
Cases Exemptions
A public record cannot be transformed into a 326k54 k. In General. Most Cited
private record merely because an agent of the gov- Cases
ernment has promised that it will be kept private. Critical question in determining whether a record
West's F.S.A. § 119.011(12). created and maintained by a private organization is
subject to disclosure as a public record on an
[8] Records 326 54 agency theory is whether the private party is a
private agency, person, partnership, corporation, or
326 Records
business entity acting on behalf of a public agency
326II Public Access
that has therefore become an agency under public
records law. West's F.S.A. § 119.011(2, 12).
quirements
326k53 Matters Subject to Disclosure; [11] Records 326 54
Exemptions
326k54 k. In General. Most Cited 326 Records
Cases 326II Public Access
A private party cannot render public records ex- 326II(B) General Statutory Disclosure Re-
empt from disclosure merely by designating in- quirements
formation it furnishes a governmental agency con- 326k53 Matters Subject to Disclosure;
fidential; the right to examine public records is a Exemptions
right belonging to the public, and it cannot be bar- 326k54 k. In General. Most Cited
gained away by a representative of the government. Cases
West's F.S.A. § 119.011(12). Public records law can be enforced against any per-
son who has custody of public records, whether that
[9] Records 326 54 person is employed by the public agency creating
or receiving the records or not; it makes no differ-
326 Records
ence that the records in question are in the hands of
326II Public Access
a private party. West's F.S.A. §§ 119.011(12),
119.07(1)(a).
quirements
326k53 Matters Subject to Disclosure; [12] Colleges and Universities 81 9.40
Exemptions
326k54 k. In General. Most Cited 81 Colleges and Universities
Cases 81k9 Students
In limited circumstances, a record created and 81k9.40 k. Records, Transcripts and Recom-
maintained by a private organization can be subject mendations. Most Cited Cases
to disclosure as a public record on an agency the- A record qualifies as an education record under fed-
ory. West's F.S.A. § 119.011(2, 12). eral Family Educational Rights and Privacy Act
(FERPA) only if it directly relates to a student.
[10] Records 326 54 Family Educational Rights and Privacy Act of
1974, § 513(a), 20 U.S.C.A. § 1232g(a)(4)(A).
326 Records
326II Public Access [13] Colleges and Universities 81 9.40
quirements 81 Colleges and Universities


(Cite as: 18 So.3d 1201)

81k9 Students 83I Power to Regulate in General
81k9.40 k. Records, Transcripts and Recom- 83k11 Powers Remaining in States, and Lim-
mendations. Most Cited Cases itations Thereon
83k13.5 k. Local Matters Affecting Com-
Records 326 55 merce. Most Cited Cases

326 Records Commerce 83 56
326II Public Access
326II(B) General Statutory Disclosure Re- 83 Commerce
quirements 83II Application to Particular Subjects and
326k53 Matters Subject to Disclosure; Methods of Regulation
Exemptions 83II(B) Conduct of Business in General
326k55 k. Exemptions or Prohibitions 83k56 k. Regulation and Conduct in Gen-
Under Other Laws. Most Cited Cases eral; Particular Businesses. Most Cited Cases
Documents placed by National Collegiate Athletic If a statute directly regulates or discriminates
Association ( NCAA) on a secure Internet website against interstate commerce, or if its effect is to fa-
used by member institutions in resolving NCAA vor in-state economic interests over out-of-state in-
disputes, with those documents consisting of a tran- terests, the court may declare it unconstitutional as
script of an NCAA disciplinary proceeding in- applied under dormant Commerce Clause, without
volving state university and the response of NCAA further inquiry; however, if the statute regulates
infractions committee to university's NCAA appeal, evenhandedly and if it has only an indirect effect on
did not directly relate to a student and therefore did interstate commerce, the court must determine
not qualify as “education records” under federal whether the state's interest is legitimate and, if so,
Family Educational Rights and Privacy Act whether the burden on interstate commerce exceeds
(FERPA) so as to be exempt from disclosure under the local benefits. U.S.C.A. Const. Art. 1, § 8, cl. 3.
Florida's public records law; documents pertained
to allegations of misconduct by the university ath- [15] Commerce 83 82.20
letic department and only tangentially related to
83 Commerce
students who benefitted from that misconduct, and
83II Application to Particular Subjects and
all student names were redacted from documents.
Methods of Regulation
Family Educational Rights and Privacy Act of
83II(K) Miscellaneous Subjects and Regula-
1974, § 513(a), 20 U.S.C.A. § 1232g(a)(4)(A);
tions
West's F.S.A. §§ 119.01(2)(a), 119.011(12), 119.07
83k82.20 k. Subjects and Regulations in
(1)(a), 1006.52(1).
General. Most Cited Cases
[14] Commerce 83 12
Records 326 54
83 Commerce
326 Records
83I Power to Regulate in General
326II Public Access
83k11 Powers Remaining in States, and Lim-
itations Thereon
quirements
83k12 k. In General. Most Cited Cases
Commerce 83 13.5 Exemptions
326k54 k. In General. Most Cited
83 Commerce Cases


(Cite as: 18 So.3d 1201)

Application of Florida's public records law to re- ization enjoying the right to freedom of association,
quire National Collegiate Athletic Association ( the NCAA did not show an impairment of that
NCAA) to disclose, to news organizations, docu- right. U.S.C.A. Const.Amend. 1; West's F.S.A. §§
ments that NCAA placed on a secure Internet web- 119.01(2)(a), 119.011(12), 119.07(1)(a).
site used by member institutions in resolving *1204 Leonard J. Dietzen, III, and Matthew J. Car-
NCAA disputes did not violate dormant Commerce son of Rumberger, Kirk & Caldwell, P.A., Talla-
Clause, despite claim that NCAA relied heavily on hassee; Linda J. Salfrank of Spencer, Fane, Britt &
confidential sources it needed to protect to effect- Browne, Kansas City, MO, for Appellant.
ively investigate rule violations; public records law
did not deal with the subject of commerce at all, ap- Gregg D. Thomas, Carol J. LoCicero, Rachel E. Fu-
plication of law did not favor in-state economic in- gate and James J. McGuire of Thomas, LoCicero &
terests over out-of-state interests, the law promoted Bralow, PL, Tampa, David S. Bralow of Thomas,
a state interest of the highest order, that being a LoCicero & Bralow, PL, New York, NY, for Ap-
right guaranteed to members of the public under the pellees The Associated Press, Cape Publications,
Florida Constitution, and other states also had Inc., Collier County Publishing LLC, First Amend-
broad definitions of public records to include those ment Foundation, Florida Press Association, Lake-
documents not in the hands of public agents. land Ledger Publishing Corporation, Media General
U.S.C.A. Const. Art. 1, § 8, cl. 3; West's F.S.A. Operations, Inc., Miami Herald Media Company,
Const. Art. 1, § 24(a, c); West's F.S.A. §§ 119.01 Morris Publishing Group LLC, News-Journal Cor-
(2)(a), 119.011(12), 119.07(1)(a). poration, NYT Management Services, Inc., Orlando
Sentinel Communications Company, Multimedia
[16] Constitutional Law 92 1448 Holdings Corporation, Scripps Howard Broadcast-
ing Company, Scripps Treasure Coast Publishing
92 Constitutional Law LLC, Sun-Sentinel, Inc., Tampa Bay Television,
92XVI Freedom of Association Inc., Federated Publications, Inc., WJXX, Gannett
92k1448 k. Post-Secondary Institutions. Most River States Publishing Corporation, and WTSP;
Cited Cases Betty J. Steffens, General Counsel, Dayton M.
Cramer, Deputy General Counsel and Linda C.
Records 326 54
Schmidt, Associate General Counsel, Tallahassee,
326 Records for Florida State University Board of Trustees and
326II Public Access T.K. Wetherell in his official capacity as President
326II(B) General Statutory Disclosure Re- of Florida State University.
quirements
Bill McCollum, Attorney General, Alexis Lambert,
Deputy General Counsel, Scott D. Makar, Solicitor
Exemptions
General, and Craig D. Feiser, Deputy Solicitor
326k54 k. In General. Most Cited
General, Office of the Attorney General, Talla-
Cases
hassee, for Amicus Curiae Attorney General Bill
Application of Florida's public records law to re-
McCollum.
quire National Collegiate Athletic Association (
NCAA) to disclose, to news organizations, docu-
ments that NCAA placed on a secure Internet web- PADOVANO, J.
site used by member institutions in resolving
NCAA disputes did not violate the NCAA's right to The National Collegiate Athletic Association ap-
freedom of association under the First Amendment; peals a final judgment requiring it to disclose cer-
although the NCAA was a private voluntary organ- tain documents to The Associated Press and other


(Cite as: 18 So.3d 1201)

news organizations joined as plaintiffs in an action the University for the academic misconduct, includ-
under Chapter 119, Florida Statutes. We find no er- ing an order that certain athletic victories be va-
ror in the decision by the trial court. Accordingly, cated. The report was provided to the University in
we affirm the judgment for the plaintiffs. paper form, and, after the names of the students had
been redacted, the report was made public.
Records created and maintained by the NCAA are
not generally subject to public disclosure. However, The University then retained the GrayRobinson law
the documents at issue in this case were examined firm to file an appeal to the NCAA from the penal-
by lawyers for a public agency, Florida State Uni- ties imposed by the committee. Because the work
versity, and used in the course of the agency's busi- of the committee was done in private, the lawyers
ness. Because the documents were received in con- had to make an arrangement with the NCAA to ob-
nection with the transaction of official business by tain access to the records relevant to the enforce-
an agency, they are public records. The NCAA has ment proceeding. The arrangement was as follows.
failed to show that an exception applies under state The NCAA put images of the transcript of the Oc-
or federal law, and thus the records must be dis- tober 28, 2008 hearing and other records on a se-
closed. cure Internet website. Lawyers for GrayRobinson
signed a confidentiality agreement with the NCAA
promising not to disclose any information they ob-
I.
tained from the website. The NCAA then gave the
The events leading to the present controversy began lawyers a password they could use to obtain the in-
in March 2007, when the *1205 University became formation from the website.
aware of allegations that a learning specialist and
This is the system the NCAA uses with all of its
an academic tutor had provided improper assistance
member institutions. Julie Roe, the Director of En-
to a number of students, some of whom were parti-
forcement for the NCAA, testified that the system
cipating in athletic programs. The University en-
was developed in 2007 as part of an effort to go
gaged the services of a private firm to conduct an
“paperless.” She referred to the secure website as
internal investigation on its behalf. On February 14,
the “custodial website.” Authorized representatives
2008, after the completion of a comprehensive self-
of member institutions could go to the website to
investigation of academic misconduct, the Uni-
obtain access to information they needed to resolve
versity reported its findings to the NCAA.
their disputes with the NCAA, and, at the same
Several months later, on June 10, 2008, the NCAA time, the NCAA could avoid public disclosure of
issued a notice of allegations to the University. The confidential sources of information used in its in-
effect of the notice was to formally initiate a discip- vestigations.
linary proceeding regarding the misconduct the
After they had signed the confidentiality agreement,
University had previously reported to the NCAA.
the lawyers at GrayRobinson examined the tran-
The University submitted a response to the allega-
script of the October 28, 2008 hearing before the
tions, and the case was called up for a hearing on
Committee on Infractions. The lawyers then used
October 28, 2008, before the NCAA's Committee
the information in the transcript to prepare the Uni-
on Infractions. The transcript of the hearing before
versity's appeal to the NCAA. They filed the initial
the committee has not been made public.
brief on behalf of the University on April 23, 2009,
On March 6, 2009, the NCAA's Committee on In- and the Committee on Infractions filed a written re-
fractions issued an infractions report. As a part of sponse on June 2, 2009. The response was submit-
the report, the committee imposed penalties against ted to the NCAA as a part of the appeal. It was con-
sidered to be the property of the NCAA and it was


(Cite as: 18 So.3d 1201)

not disclosed to the public. The issues presented in this appeal are governed by
the organic law of the state. The Florida Constitu-
The plaintiffs in the present case sought disclosure tion creates a broad right to inspect the records of
of documents in the NCAA disciplinary proceeding any state or local governmental body. Article I, sec-
and appeal and, when the request was denied, they tion 24(a) of the Florida Constitution grants
filed suit under Chapter 119, Florida Statutes “[e]very person ... the right to inspect or copy any
against the NCAA, Florida State University, its public record made or received in connection with
President, and the GrayRobinson law firm. In the the official business of any public body, officer or
early stages of the case, *1206 the NCAA offered employee of the state, or persons acting on their be-
to produce the June 2, 2009 response by the Com- half.” The right to inspect a public record in Florida
mittee on Infractions. However, the NCAA de- is not one that is merely established by legislation,
clined to provide the response in its original format, it is a right demanded by the people.
and the document that was given to the plaintiffs
was a version of the report that had been retyped by Article I, section 24(c) of the Florida Constitution
University personnel from the image on the cus- provides that the right to inspect public records
todial website. The plaintiffs did not regard the re- shall be “self-executing.” Legislation is not re-
typed version of the response as compliance with quired to implement the right, but section 24(c) ex-
their public records request. pressly grants authority to the Florida Legislature to
“enact laws governing the enforcement of this sec-
The public records case was tried before the court tion.” The rights created by the constitution may be
on August 20, 2009. Two documents were at issue enforced under the procedures in the public records
in the litigation: the transcript of the October 28, law, Chapter 119, Florida Statutes. The opening
2008 hearing before the NCAA Committee on In- sentence of the law declares that “[i]t is the policy
fractions and the Committee's June 2, 2009 re- in this state that all state, county and municipal re-
sponse to the University's appeal. The plaintiffs ar- cords are open for personal inspection and copying
gued that both documents were public records. The by any person” and that “[p]roviding access to pub-
NCAA argued that the documents were not public lic records is a duty of each agency.”
records and, alternatively, that they were exempt
under federal laws protecting student records. [1][2] Florida courts construe the public records
law liberally in favor of the state's policy of open
On August 28, 2009, the trial court rendered judg- government. See Lightbourne v. McCollum, 969
ment for the plaintiffs. In summary, the trial court So.2d 326 (Fla.2007); Wolfson v. State, 344 So.2d
concluded that the transcript and response were 611 (Fla. 2d DCA 1977); Tribune Co. v. In re Pub-
public records because they were received by an lic Records, 493 So.2d 480 (Fla. 2d DCA 1986);
agency of the state government and that they were City of Riviera Beach v. Barfield, 642 So.2d 1135
not exempt under federal laws designed to protect (Fla. 4th DCA 1994). If there is any doubt about the
students because they did not contain information application of the law in a particular case, the doubt
directly related to a student. The court ordered the is resolved in favor of disclosing the documents.
immediate disclosure of the transcript and response, See Dade County Aviation Consultants v. Knight
but the NCAA appealed to this court, and the judg- Ridder, Inc., 800 So.2d 302 (Fla. 3d DCA 2001).
ment by the trial court was stayed pending the dis-
position of the appeal.
a.

II. [3] With these principles in mind, we turn to the
first issue in the case, whether *1207 the transcript


(Cite as: 18 So.3d 1201)

and response are public records. We begin by ob- term.” Shevin at 640.
serving that the public records law is not limited to
paper documents but that it applies, as well, to doc- [4] Based on these authorities, we conclude that the
uments that exist only in digital form. Section transcript and response are public records. Al-
119.01(2)(a) makes it clear that the public records though these documents were prepared and main-
law applies to documents maintained on a computer tained by a private organization, they were
in the same way that it would apply to those kept in “received” by agents of a public agency and used in
a file cabinet. This section notes the increased de- connection with public business. The purpose of the
pendency on computerized records and it directs transcript was to perpetuate the information presen-
that “each agency must provide reasonable access ted to the infractions committee, in the event the
to records electronically maintained.” It goes on to parties wished to appeal the sanction imposed by
conclude that the automation of public records the committee. The response was designed to com-
“must not erode the right of access to those re- municate information to the body that would hear
cords.” the appeal within the NCAA.

To determine whether a particular document quali- [5] The term “received” in section 119.011(12)
fies as a public record the court must look first to refers not only to a situation in which a public agent
the definition given in the law itself. Section takes physical delivery of a document, but also to
119.011(12) defines the term “public record” as: one in which a public agent examines a document
residing on a remote computer. If that were not the
all documents, papers, letters, maps, books, tapes, case, a party could easily circumvent the public re-
photographs, films, sound records, data pro- cords laws. The appeal by the University is a matter
cessing software, or other material, regardless of of public concern. It is not transformed into a
the physical form, characteristic or means of private matter merely because the documents the
transmission, made or received pursuant to law or University lawyers used to prepare the appeal
ordinance in connection with the transaction of reside on a computer owned by a private organiza-
official business. tion. As the plaintiffs expressed this point, the
definition of a public record does not turn on the
By this definition, a document may qualify as a sender's method of transmission.
public record under the statute if it was prepared by
a private party, so long as it was “received” by a Our conclusion that the transcript and response be-
government agent and used in the transaction of came public records when they were examined by
public business. state lawyers and used for a public purpose is sup-
ported by the decision of the Second District Court
The Florida Supreme Court provided additional of Appeal in Times Publishing Co. v. City of St.
guidance to the lower courts in Shevin v. Byron, Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990).
Harless, Schaffer, Reid & Associates, Inc., 379 That case involved negotiations between*1208 the
So.2d 633 (Fla.1980). In that case, the court defined Chicago White Sox and the City of St. Petersburg
the term “record” as used in section 119.011(12) as for the use of the Suncoast Dome. The documents
“any material prepared in connection with official pertaining to the negotiations were prepared and
agency business which is intended to perpetuate, maintained exclusively by the White Sox, but they
communicate, or formalize knowledge of some were examined by agents for the City under a con-
type.” Shevin, 379 So.2d at 640. This definition was fidentiality agreement. The court held that the doc-
intended “to give content to the public records law” uments were subject to disclosure under the public
by attributing a meaning to the term “record” that is records law because they were examined by agents
“consistent with common understanding of the for the City and used in the course of its business.


(Cite as: 18 So.3d 1201)

[6] These principles apply with equal force here. It a student athlete from a private school in New
is true, as the NCAA points out, that the documents York, the NCAA would have a good argument that
at issue in Times Publishing were modified at the the record did not become public merely because it
request of the City, but that is a distinction without was “viewed” by someone who happened to work
a difference. A document that is used in the course for the State of Florida. The point overlooked in the
of public business is a public record under the NCAA's argument, however, is that the records in
definition in section 119.011(12) if it was made by this case were examined and used for an official
a public official or if was received by the official. If state purpose.
it was received, that is enough. It is not necessary
to also show that it was made, partly made, or mod- [7][8] The lawyers signed a confidentiality agree-
ified in some way by the official. ment with the NCAA, but that has no impact on our
decision that the transcript and response are public
The NCAA argues that a document is not records. A public record cannot be transformed into
“received” within the meaning of the public records a private record merely because an agent of the
law merely because it is viewed by an agent of the government has promised that it will be kept
state. According to the NCAA, the danger in equat- private. See Gadd v. News-Press Publ'g Co., 412
ing viewing with receiving, is that it could result in So.2d 894, 896 (Fla. 2d DCA 1982); Browning v.
the disclosure of information that should remain Walton, 351 So.2d 380, 381 (Fla. 4th DCA 1977).
private. An agent who has a password to the secure Nor is it material that the NCAA had an expectation
site would have access to a great deal of confiden- that the documents would remain private. As we
tial information, some of it unrelated to the member explained in Sepro Corp. v. Florida Department of
institution the agent represents. This information, Environmental Protection, 839 So.2d 781, 784 (Fla.
the NCAA argues, should not be disclosed as a pub- 1st DCA 2003), “[A] private party cannot render
lic record merely because a public agent examined public records exempt from disclosure merely by
it. designating information it furnishes*1209 a govern-
mental agency confidential.” The right to examine
We accept the general premise of this argument, but these records is a right belonging to the public; it
the point the NCAA has not taken into account is cannot be bargained away by a representative of the
that the documents in this case were not merely government.
viewed, they were used in connection with public
business. The transcript is a 350-page document; The trial judge also concluded that the University
the GrayRobinson lawyers did not use their pass- had improperly delegated its recordkeeping func-
word to read it out of idle curiosity. To the con- tion to the NCAA. We have no reason to disagree
trary, they examined it professionally for a legitim- with the trial judge on this point, but we need not
ate governmental purpose. The transcript literally address the point to determine the correctness of the
became a part of the University's appeal and there- judgment. It appears that the issue was interjected
fore a matter of public business. The same is true of into the case by conflating one legal theory with an-
the response. It was the committee's answer to the other. In our view, the issue has no bearing on the
University's appeal. outcome of the appeal.

We would be more inclined to accept the NCAA's [9] In limited but well defined circumstances, a re-
argument that viewing is not the equivalent of record created and maintained by a private organiza-
ceiving if the documents at issue had not been dir- tion can be subject to disclosure as a public record
ectly related to the work these lawyers were doing on an agency theory. For example, if a private en-
for the state. If the GrayRobinson lawyers had used tity is acting on behalf of the state or local govern-
their password to look at the disciplinary records of ment and creates a document that reflects the busi-


(Cite as: 18 So.3d 1201)

ness of the governmental entity, the document can a public duty of the University. The documents at
become a public record. In News and Sun-Sentinel issue in this case became public records by a much
Co. v. Schwab, Twitty & Hanser Architectural more direct route: they were received by agents of
Group, Inc., 596 So.2d 1029 (Fla.1992), the su- the University and used in connection with the Uni-
preme court set out a nine-factor test to determine versity's business. The legal status of these records
whether records held by a private party must be dis- is no different than it would be if they had been
closed under the public record act on the theory that prepared by the University's lawyers and if the only
the private party is acting on behalf of the govern- existing copies were in the NCAA's possession.
ment.
[11] The enforcement of the public records law is
[10] The critical question in this line of cases is also relatively straightforward in a situation like
whether the private party is a “private agency, per- this. Section 119.07(1)(a), Florida Statutes states
son, partnership, corporation or business entity that “every person who has custody of a public re-
acting on behalf of [a] public agency ” that has cord shall permit the record to be inspected*1210
therefore become an “agency,” as defined in section and copied by any person desiring to do so ....”
119.011(2) Florida Statutes. (emphasis added) The (emphasis added) The plain meaning of this statute
common feature of all of the cases in this line of is that the public records law can be enforced
authority, including our own recent decision in B & against any person who has custody of public re-
S Utilities v. Baskerville-Donovan, Inc., 988 So.2d cords, whether that person is employed by the pub-
17 (Fla. 1st DCA 2008), is that they all involve ef- lic agency creating or receiving the records or not.
forts to determine whether a private entity has as- It makes no difference that the records in question
sumed the role of the government. See, e.g., New are in the hands of a private party. If they are public
York Times Co. v. PHH Mental Health Servs., Inc., records, they are subject to compelled disclosure
616 So.2d 27 (Fla.1993); Weekly Planet, Inc. v. under the law.
Hillsborough County Aviation Auth., 829 So.2d 970
(Fla. 2d DCA 2002); Dade Aviation Consultants,
b.
Inc. v. Knight Ridder, Inc., 800 So.2d 302 (Fla. 3d
DCA 2001); Putnam County Humane Society, Inc. The second major argument on appeal is that the
v. Woodward, 740 So.2d 1238 (Fla. 5th DCA 1999) transcript and response are exempt from disclosure
. Typically, the private entity has a contract with because they contain education records that are pro-
the government and performs a public function in tected by the Family Educational Rights and Pri-
the course of its duties under the contract. The vacy Act, 20 U.S.C. § 1232g, a law commonly
private entity is acting not as a business adversary known by its acronym FERPA. We reject this argu-
to the government but as a surrogate for the government, as well.
ment.
FERPA applies to all schools that receive federal
The issue in the present case is much less complic- funds and it serves the dual purpose of ensuring
ated. The transcript and response are public records that students will have access to their education re-
because they were received by agents of the state cords while protecting their rights to privacy by
and used in the course of the state's business. We limiting the transferability of their records without
need not apply the nine-factor test in Schwab to their consent. By its terms, FERPA does not pro-
come to this conclusion. Nor is it necessary to de- hibit the disclosure of any educational records. In-
cide whether the NCAA became a public “agency” stead, it operates to deprive an educational institu-
in its own right under section 119.011(2) by step- tion of its eligibility for federal funding if its
ping into the shoes of the University and assuming policies or practices run afoul of the rights of ac-


(Cite as: 18 So.3d 1201)

cess and privacy protected by the law. students and thus were not “education records” un-
der FERPA); Baker v. Mitchell-Waters, 160 Ohio
As it is pertinent here, FERPA is incorporated into App.3d 250, 826 N.E.2d 894 (2005) (records relat-
Florida law by section 1006.52(1), Florida Statutes ing to allegations of abuse or neglect of students by
(2009), which provides that “[a] student's education teachers are not subject to FERPA).
records, as defined in the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. § [13] The trial court concluded that the two docu-
1232g, and the federal regulations issued pursuant ments did not include any information that would
thereto, and applicant records are confidential and qualify as an education record. Specifically, the
exempt from s. 119.07(1) and s. 24(a), Art. I of the court found that these documents “do not contain
State Constitution.” information*1211 directly relating to a student.”
Our review confirms the trial court's view that these
The phrase “education records” is defined in records pertain to allegations of misconduct by the
FERPA as follows: University Athletic Department, and only tangen-
tially relate to the students who benefitted from that
For the purposes of this section, the term
misconduct.
“education records” means, except as may be
provided otherwise in subparagraph (B), those re- The transcript and response would not be protected
cords, files, documents, and other materials in any event because they do not reveal the identity
which- of the students. Federal courts have concluded that
FERPA does not prohibit the release of records so
(i) contain information directly related to a stu-
long as the student's identifying information is re-
dent; and
dacted. See United States v. Miami Univ., 294 F.3d
(ii) are maintained by an educational agency or 797 (6th Cir.2002); Ragusa v. Malvern Union Free
institution or by a person acting for such agency Sch. Dist., 549 F.Supp.2d 288 (E.D.N.Y.2008).
or institution. Likewise, several state courts have recognized that
once a record is redacted, it no longer contains
See § 20 U.S.C. § 1232g(a)(4)(A). “information directly related to a student” and is
therefore not an “education record” under FERPA.
[12] By the language of this statute, a record quali- See, e.g. Osborn v. Board of Regents of University
fies as an education record only if it “directly” of Wisconsin System, 254 Wis.2d 266, 647 N.W.2d
relates to a student. See Ellis v. Cleveland Mun. 158, 168 n. 11 (2002) (“once personally identifiable
Sch. Dist., 309 F.Supp.2d 1019 (N.D.Ohio 2004) information is deleted, by definition, a record is no
(documents, including student witness statements longer an education record since it is no longer dir-
related to discipline of substitute teacher alleged to ectly related to a student”); Unincorporated Oper-
have improperly administered corporal punishment ating Div. of Indiana Newspapers, Inc. v. Trustees
did not directly relate to students and thus were not of Indiana Univ., 787 N.E.2d 893 (Ind.App.2003)
“education records”); see also Briggs v. Bd. of (materials are not “education records” if student
Trustees Columbus State Cmty. Coll., 2009 WL identifying information has been redacted); see also
2047899 (S.D.Ohio 2009) (records of student com- Bd. of Tr., Cut Bank Pub. Sch. v. Cut Bank Pioneer
plaints against professor relate directly to professor, Press, 337 Mont. 229, 160 P.3d 482 (2007)
not students, and are not “education records”); Wal- (FERPA does not prohibit disclosure of records that
lace v. Cranbrook Educ. Cmty., 2006 WL 2796135 do not reveal personally identifying information).
(E.D.Mich.2006) (holding that statements provided Because the names of all students were redacted
by students in relation to investigation of school from the transcript and response, we conclude that
employee's misconduct did not directly relate to


(Cite as: 18 So.3d 1201)

these documents do not disclose education records 573, 578-79, 106 S.Ct. 2080, 90 L.Ed.2d 552
as defined in FERPA, and that the documents do (1986). However, if the statute regulates evenhan-
not therefore fall within the exemption created by dedly and if it has only an indirect effect on inter-
section 1006.52(1), Florida Statutes. state commerce,*1212 the court must determine
whether the state's interest is legitimate and, if so,
We emphasize that our decision is limited to the whether the burden on interstate commerce exceeds
disclosure of the redacted versions of the transcript the local benefits. See Dep't of Revenue of Ky. v.
and response. Like the trial court, we have re- Davis, --- U.S. ----, 128 S.Ct. 1801, 1817, 170
viewed only the redacted versions of these docu- L.Ed.2d 685 (2008); Pike v. Bruce Church, Inc.,
ments. We are therefore not in a position to decide 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174
whether the plaintiffs or other members of the pub- (1970).
lic are entitled to examine the unredacted versions.
[15] The public records law does not attempt to reg-
ulate or discriminate against interstate commerce. It
c.
does not deal with the subject of commerce at all.
We come now to the final argument on appeal, that Nor does the application of the law in this case fa-
the public records law is unconstitutional as applied vor in-state economic interests over out-of-state in-
under the facts of this case. The NCAA contends terests. The law would apply in the same way we
that the law as applied here violates its rights under have applied it here if a private Florida corporation
FN1 doing business entirely within the borders of the
the dormant Commerce Clause and under the
First Amendment right to freedom of association. state had provided information to a public official
These arguments lack merit. and if the information had then been used in con-
nection with public business.
FN1. The Commerce Clause states: “The
Congress shall have Power ... To regulate We are not persuaded that the Public Records law
Commerce ... among the several States....” has an indirect effect on interstate commerce, but
U.S. Const., Art. I, § 8, cl. 3. The United even if some effect had been established, we could
States Supreme Court has recognized that not say that the law violates the dormant Commerce
this affirmative grant of authority to Con- Clause. The Public Records law implements a right
gress also encompasses an implicit or guaranteed to members of the public under the
“dormant” limitation on the authority of Florida Constitution and it therefore promotes a
the States to enact legislation affecting in- state interest of the highest order. The negligible
terstate commerce. See Hughes v. Ok- impact the law might have on interstate commerce
lahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, clearly does not outweigh the goal of ensuring open
60 L.Ed.2d 250 (1979). government.

[14] The United States Supreme Court has adopted The NCAA relies on NCAA v. Miller, 10 F.3d 633
a two-tiered test to determine whether a state law (9th Cir.1993), and NCAA v. Roberts, 1994 WL
violates the dormant Commerce Clause. If a statute 750585 (N.D.Fla.1994), in support of its dormant
“directly regulates or discriminates against inter- Commerce Clause argument, but these cases are
state commerce, or [if] its effect is to favor in-state distinguishable. Both involve state statutes purport-
economic interests over out-of-state interests,” the ing to regulate disciplinary proceedings by college
court may declare it unconstitutional as applied, athletic associations. In contrast, the public records
without further inquiry. Brown-Forman Distillers, law is a law of general application; it does not
Inc. v. New York State Liquor Authority, 476 U.S. single out athletic associations.


(Cite as: 18 So.3d 1201)

David Berst, the Vice President for the NCAA's Di- ARIZONA includes records “made or re-
vision I testified that the NCAA relies heavily on ceived by any governmental agency in pur-
confidential sources and that the organization could suance of law or in connection with the
not effectively investigate violations of the rules if transaction of public business,” see A.R.S.
it could not protect those sources. He said that if the § 41-1350 (2009); ARKANSAS expanded
public records law were to apply in a case like this, its Freedom of Information Act to include
it would “rip the heart out of the NCAA.” We think records that are received by a public
that this claim overstates the effect of the law. In agency, see Arkansas Department of Fin.
fact, the investigation in this very case refutes the & Admin. v. Pharmacy Assoc. Inc., 333
claim. The evidence came to the NCAA not from a Ark. 451, 970 S.W.2d 217 (1998); GEOR-
confidential source who wanted to provide informa- GIA includes, among other things,
tion against the University, but from an internal in- “computer based or generated information,
vestigation by the University itself. The transcript or similar material prepared and main-
of the hearing before the Committee on Infractions tained or received in the course of the op-
does not reveal a single confidential source. eration of a public office or agency,” see
OCGA § 50-18-70(a); INDIANA includes
The NCAA's claim that the application of the Flor- any record that is “created, received, re-
ida public records law would impair its ability to tained, maintained by a public agency ...
function also assumes that the law imposes a bur- regardless of its form or characteristics” in
den that would not be imposed in other states. That Ind.Code § 5-14-3-2(n); ILLINOIS will in-
is not the case. Many other states also define a pub- clude records that are “created, received,
lic record broadly to include records that are con- retained [or] maintained” by a public
nected with the business of the government yet are agency, see 5 ILCS 140/2 (West 2010);
not in the hands of a public agent. Some statutes are MARYLAND includes records “made by
like the one in Florida, in that they refer to docu- ... or received by the unit or instrumental-
ments that were made or “received” by a public ity in connection with the transaction of
FN2
agent in connection with public business. Oth- public business,” see MD Code § 10-
ers are even *1213 broader, in that they refer to 611(g)(1) (2009); MASSACHUSETTS in-
documents that were “used” by a public agent in the cludes “documentary materials or data, re-
FN3
course of public business. We do not *1214 gardless of physical form or characterist-
suggest that the analysis would be precisely the ics, made or received by any officer or em-
same in every state, but merely that Florida law is ployee of any agency,” see M.G.L.A. c. 4,
not so distinctive that it would force the NCAA to § 1; MINNESOTA considers public re-
change the way it does business. This case arose in cords to be “government data,” which is
Florida, but it is likely that the NCAA would be defined in the statute as “all data collected,
dealing with the same issue had it arisen most any- created, received, maintained or dissemin-
where in the United States. ated by any government entity regardless
of its physical form,” see Minn.Stat. §
FN2. For example, ALABAMA includes
13.02(7); NORTH CAROLINA defines
records “made or received ... in the trans-
public records as “all documents ... made
action of public business,” see § 41-13-1,
or received pursuant to law or ordinance in
Ala.Code 2009; ALASKA includes any re-
connection with the transaction of public
cords “that are developed or received by a
business,” see N.C.G.S. § 132-1(a) (2009);
public agency, or by a private contractor
OKLAHOMA includes public records
for a public agency,” see AS 40.25.220(3);
“created by, received by, [or] under the au-


(Cite as: 18 So.3d 1201)

thority of ... public officials, public bodies, (13); KENTUCKY includes records that
or their representatives in connection with are “prepared, owned, used, in the posses-
the transaction of public business,” see 51 sion of or retained by a public agency,” see
Okl.St.Ann. § 24A.3; RHODE ISLAND Ky. Stat. Ann. § 61.870(2) (2009);
includes “all documents ... made or re- LOUISIANA includes, among other
ceived pursuant to law or ordinance or in things, “information contained in electron-
connection with the transaction of official ic data processing equipment, having been
business by any agency,” see R.I. Gen. used ” by a public agent in the course of a
Laws § 38-2-2; TEXAS includes public duty, see La. Stat. Ann. § 44:1(2)(a)
“information that is collected, assembled, (2009); MAINE includes records that
or maintained under a law or ordinance or “[have] been received or prepared for use
in connection with the transaction of offi- in connection with the transaction of pub-
cial business,” see Tex. Gov't Code Ann. § lic or governmental business,”
552.002(a) (Vernon 2009); VERMONT in- Me.Rev.Stat. Ann., Tit. 1, § 401 (2009);
cludes “documents ... that are produced or MICHIGAN includes records “prepared,
acquired in the course of agency busi- owned, used, in the possession of, or re-
ness,” see 1 V.S.A. § 317(b); and WYOM- tained by a public body in the performance
ING includes records “that have been of an official function,” see Mich. Comp.
made by the state of Wyoming ... or re- Laws Ann. § 15.232(e); NEW MEXICO
ceived by them in connection with the considers “[a]ll documents, ... that are
transaction of public business,” see § Wyo. used, created, received, maintained or held
Stat. Ann. § 16-4-201(a)(v). (emphasis by or on behalf of any public body and re-
supplied in all citations) late to public business, whether or not the
records are required by law to be created
FN3. Among these states, CALIFORNIA or maintained” to be public records, see
includes records relating to the conduct of N.M. Stat. Ann. § 14-2-6(E) (2009); NEW
the public's business that are “prepared, YORK expanded its definition of “public
owned, used, or retained by a public record,” in a case in which the Appellate
agency regardless of its form or character- Court of New York held that “[t]he stat-
istics,” see Calif. Govt.Code § 6252(e); utory definition of ‘record’ makes nothing
CONNECTICUT includes “any recorded turn on the purpose for which a document
data or information relating to the conduct was produced or the function to which it
of the public's business prepared, owned, relates .... Nor is it relevant that the docu-
used, received or retained by a public ments originated outside the government
agency,” see Conn. Gen.Stat. § 1-200 ....” see Matter of Washington Post Co. v.
(2009); DELAWARE includes records of Ins. Dep't, 61 N.Y.2d 557, 565, 475
“information of any kind, owned, made, N.Y.S.2d 263, 463 N.E.2d 604 (N.Y.1984)
used, retained, received, produced, com- ; OREGON defines a public record as “any
posed, drafted or otherwise compiled or writing that contains information relating
collected, by any public body,” see Del. to the conduct of the public's business ...
Tit. 29, § 10002(g); IDAHO includes re- prepared, owned, used or retained by a
cords “relating to the conduct or adminis- public body regardless of physical form or
tration of the public's business prepared, characteristics,” see Ore.Rev.Stat. §
owned, used or retained by a public 192.410 (2005); SOUTH CAROLINA in-
agency,” see Idaho Code Ann. § 9-337 cludes records that are “prepared, owned,


(Cite as: 18 So.3d 1201)

used, in the possession of or retained by a records, and that these documents are not exempt
public body,” see S.C.Code Ann. § from disclosure under state or federal law. For
30-4-20(C) (2002); and WASHINGTON these reasons, we affirm the judgment of the trial
includes public records that “relat[e] to the court and order the disclosure of the transcript, as
conduct of government ... prepared, redacted by agreement of the parties, and the re-
owned, used, or retained by any state or sponse in its original form, with the redactions
local agency” see Wash. Rev.Code § agreed to by the parties.
42.17.020(42) (2008). (emphasis supplied
in all citations) Affirmed.

[16] The argument that the application of the Flor- WEBSTER and CLARK, JJ., concur.
ida public records law violates the NCAA's right to Fla.App. 1 Dist.,2009.
freedom of association under the First Amendment National Collegiate Athletic Ass'n v. Associated
is also unavailing. We acknowledge that the NCAA Press
is a private voluntary organization and that it enjoys 18 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L.
the freedom of association guaranteed by the First Weekly D2009, 37 Media L. Rep. 2400
Amendment, but the NCAA has not shown that the
END OF DOCUMENT
application of the Florida public records law im-
pairs that right.

In support of its argument on this point, the NCAA
cites Boy Scouts of America v. Dale, 530 U.S. 640,
120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), but that
case dealt with a statute that directly impaired asso-
ciational rights. The court held that the Boy Scouts
could not be forced by state law to accept within its
membership an openly homosexual boy. The situ-
ation presented here is a far cry from the one
presented in the Dale case. The application of the
Florida public records law could not, by any stretch
of the imagination, require the NCAA to admit or
reject certain institutions. Nor does it require the
NCAA to reject the values it wishes to express. The
law may prevent the NCAA from conducting secret
proceedings against a public school in this state, but
that does not impair the NCAA's freedom of ex-
pression or its freedom of association.

III.

In summary, we hold that the application of the
Florida public records law does not violate any con-
stitutional right under the facts of this case, that the
transcript of the hearing before the Committee on
Infractions and the Committee's response are public


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