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Court Sides with FSU on NCAA Records Flap

The NCAA must make public documents related to a cheating scandal at Florida State University, a Florida appellate panel ruled unanimously on Thursday.

In a decision that upholds a trial court judge’s opinion in August, the First District Court of Appeal ruled that the intercollegiate athletic governing board must release documents it used to sanction FSU’s athletic department for.

The NCAA argued that the documents were private because it is a private organization and the documents in question were reviewed by private attorneys representing the university who had agreed to conditions to keep the documents confidential.

But writing for the three judge panel of the appeals court in a 26-page ruling, Justice Phillip Padovano, rejected the NCAA argument, saying Florida’s public records law is pretty clear. If the information is used by a public entity to influence public policy, it is a public record.

“The appeal by the University is a matter of public concern,” Padovano wrote. “It is not transformed into a private matter merely because the documents the University lawyers used to prepare the appeal reside on a computer owned by a private organization.”
Neither Florida State nor NCAA officials could be immediately reached for comment.
The ruling is the latest chapter in an ongoing feud between the university and the NCAA, that started when FSU reported that tutors were essentially doing coursework for some of its athletes.

The documents in question revolve around the NCAA's intention to strip coaches and athletes of wins in 10 sports. The sanctions would affect football coach Bobby Bowden, who stands to lose 14 victories. The loss would reduce Bowden’s chances of retiring as major college football's winningest coach. Bowden has 384 victories — two behind Penn State's Joe Paterno.

Of particular interest is the transcript of an October 2008 meeting in Indianapolis between Florida State administrators and members of the NCAA Committee on Infractions.

In August, circuit judge John Cooper ordered the NCAA to release documents related to the cheating scandal in response to a lawsuit filed by The Associated Press, the Tallahassee Democrat and others.

The groups argued that the NCAA could not hide behind public records law exemptions even though the private attorneys representing the university had agreed not to disclose the contents of the documents in question.

The appeals judges agreed.

“The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government,” Padovano wrote.
Among those applauding the decision Thursday was the First Amendment Foundation, which joined in the lawsuit. The unanimous decision sent an unequivocal message that will reverberate, said foundation president Barbara Petersen.

Among other things, the ruling states that documents cannot be made private simply because the sender wants them to be, which underscores that officials have to release records that are public, regardless of their link in the chain of custody.

“There was nothing unequivocal about any statement he made,” Petersen said. “The ruling can very well address some of the most insidious problems we have.”

The court also said that the method of delivery does not affect the status of a public document, a ruling that could have an impact on other forms of electronic communication that have heretofore been outside the purview of open records.

“The First District's decision emphasizes the importance of applying the public records laws to new and evolving technologies and serves to enhance our state’s reputation as a leader on Sunshine issues,” Florida Attorney General Bill McCollum said in a statement.

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