Must FSU Release the NOA? A response to Bianchi.

The Orlando Sentinel's Mike Bianchi slammed FSU for not releasing the Notice of Allegations.

Florida is governed by the Government in the Sunshine Law.

Let's have a little Q & A.

Q. What is a public record?
A. The Florida Supreme Court has determined that public records are all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. They are not limited to traditional written documents. Tapes, photographs, films and sound recordings are also considered public records subject to inspection unless a statutory exemption exists.

Q. Does the Notice of Allegations from the NCAA to FSU qualify as a public record?
A. Well, the document is a material, which was received, by an agency (FSU), in connection with official business, which was used to perpetuate, communicate, and formalize knowledge. The Notice of Allegations does qualify as a public record.

Q. When does a document sent to a public agency become a public document?
A. As soon as a document is received by a public agency, it becomes a public record, unless there is a legislatively created exemption which makes it confidential and not subject to disclosure.

So the document is a public record upon receipt. It looks like Florida Law requires FSU to release the documents. At this point, they have denied those requests.

Q. Does an agency have to explain why it denies access to public records?
A. A custodian of a public record who contends that the record or part of a record is exempt from inspection must state the basis for that exemption, including the statutory citation. Additionally, when asked, the custodian must state in writing the reasons for concluding the record is exempt.

FSU does have the right to refuse to release the documents if they have a good faith basis that the requested information falls under an exemption, whether statutorily or judicially created. They have to specify which exemption they believe the record falls under. They also have to disclose why they believe the record falls under the exemption

What exemption is FSU citing? Bianchi's story fails to disclose the specific exemption. This is poor journalism by him. He most likely knows what exemption FSU cited when they denied his request. They would have responded to the attorney that represents the Orlando Sentinel. By failing to include the citation to the authority cited by FSU, Bianchi appears to be hiding something as well. His article is riddled with assumptions that may or may not be true.

UPDATE: Andrew Carter provided the specific exemption:

“Because this matter remains an ongoing confidential investigation under Section 1012,91, Florida Statutes, no further comment or provision of records maintained for the purposes of the investigation is anticipated until the investigation is concluded. Further, many of the records involved, including the June 10 correspondence from the NCAA [the NOA] that has become a record maintained by the University, contains confidential and exempt personally identifiable student education records and reports information pursuant to Section 1002.22(3)(d), Florida Statutes, which gives students a right of privacy ‘in their records. The federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, also protects the privacy of student education records.”

Thanks to Andrew for providing that. FSU is fully within its rights to claim this exception. If someone believes they have wrongly claimed the exception, they should challenge it in a court of law and the judge will decide whether the documents fall under the exception. To my knowledge, nobody has sued FSU over this matter yet. If this matter was really as cut and dry as many in the media make it out to be, someone would have sued months ago, the case would already have been decided, and this would be a non issue. Since the case has not been decided, it seems as if there is some uncertainty. FSU chose to employ this legal strategy, for whatever reason, and they will continue to maintain their stance until someone challenges them in a Florida court.

Bianchi's slant on the situation, however, isn't relevant to the issue of whether FSU is rightfully withholding the documents. While I don't have the specific citation they are claiming, the general idea is that FSU is not releasing the documents because they believe the documents contain protected student information. Some student information is protected under privacy laws. Under Florida Law, agencies are not required to create new reports or information, however An agency that claims an exception based on student privacy, is probably under a duty to release the information in a non-intrusive form. The commonly accepted practice by universities is to release the information with student names and identifying information redacted. FSU has promised to release the information once they file their revised response to the NCAA. The estimated date of release, then, is somewhere around September 12th. This battle could end up in court if the parties requesting the information want to press the issue. It is unlikely, however, that their issue would be decided by a court before September 12th, so their best strategy at this point is to wait 'till the 12th. Also, there is no guarantee that FSU will be forced to turnover the documents. A judge could easily side with the 'Noles and agree that the documents fall within the claimed exemption.

Q. What are the possible downsides to FSU's tactics?
A. Plenty. Obviously, when you fight the media, you will lose the public relations battle. The "taxpayers deserve their information" argument is very powerful and everyone identifies as a taxpayer. FSU's public relations has been horrible in the past few years and the administration is increasingly adopting an anti-media stance. From closing practices, to vague injury reports (upper body injury), and now this. Whether FSU would win in court is debatable. That they are losing in the court of public opinion, is not.

If someone does take FSU to court over this and win, FSU could be in some trouble. FSU could be ordered to produce the documents at their own expense (usually the requesting party must pay) and pay the requesting party's attorneys fees and court costs. If the withholding of the documents is found to be willful, the court could impose a civil penalty and possibly charge the presiding official with a crime.

Q. Why doesn't the Sentinel make the NCAA produce the documents?
A. Despite how they are sometimes portrayed, the NCAA is not a governmental organization. They do not fall under the jurisdiction of Florida's Sunshine Laws. As a private organization, it would be almost impossible to make the NCAA turn over the documents.

If you have any other questions about FSU's sunshine laws, post them in the comments section and I will attempt to answer them.