NCAA v. The Associated Press: open records ruling may affect future athletic department activities.

Southall, Richard M. ; Nagel, Mark S.

Although May 24, 2010, was like most spring days in Florida--pleasantly mild and partly sunny--the Florida Supreme Court's actions that day undoubtedly made the National Collegiate Athletic Association (NCAA) and its members feel as if they were trapped in the "dog days of summer": stifling hot and humid. With one decision, the landscape of college sport had been altered, although most fans and intercollegiate athletic administrators are still not aware of the implications of the court's decision for the future forecast.

The court's refusal to hear an appeal of a Leon County (FL) circuit court's order, in which it cited The Florida Public Records Law (Fla. Stat. sec. 119) and compelled the NCAA to disclose documents associated with its investigation of an academic scandal at Florida State University (FSU), stands to greatly impact the future operation of the NCAA and its member athletic departments (NCAA v. The Associated Press, 2010). As with many heat waves, the conditions necessary for this one began to build gradually, as far back as 2007.

Background

In March 2007, on the campus of Florida State University (FSU), allegations surfaced that three former academic support services staff members had provided "improper" academic assistance to at least 61 FSU athletes (Landman, 2009). During its subsequent investigation, the NCAA uncovered evidence that from Fall 2006 through Summer 2007, at least 25 FSU football players received improper help from staffers in a music-history course. The NCAA determined that FSU's athletic-academic support staff had provided athletes with answers to an online test (i.e. they cheated) and/or typed course papers for them (National Collegiate Athletic Association, 2010).

The NCAA's investigation and infractions report was initially released in March 2009. Among the levied penalties outlined in the NCAA Committee on Infractions report was vacating all football victories during the 2006-2007 seasons (National Collegiate Athletic Association, 2010). As a result, former FSU football coach Bobby Bowden was stripped of 14 victories, dashing his hopes of ever surpassing the all-time wins total of Penn State's Joe Paterno. Although Florida State immediately appealed the NCAA's penalties, in January 2010 the NCAA upheld its decision (Carter, 2010).

Unbeknownst to the general public, during NCAA investigations and appeals, athletic departments under investigation, as well as any private-party representatives, have traditionally been provided with copies of NCAA investigative documents (NCAA v. The Associated Press, 2009). Interestingly, in an effort to increase efficiency and decrease administrative costs, since 2007 the NCAA has gone "paperless," no longer delivering such documents to universities. Instead, the NCAA provides access to electronic copies of pertinent documents via a secure website (National Collegiate Athletic Association v. The Associated Press, 2009).

Due to Bowden's national visibility, the NCAA's investigation of FSU, as well as the NCAA Infraction Committee's report and the subsequent appeals process, garnered widespread attention. As a result, the Associated Press (AP) and many other news outlets requested access to as much information as possible, including copies of documents that Florida State University might possess. Granting such access was widely believed to be statutorily mandated under Florida's "sunshine" laws (Fla. Stat. [section] 119.01 (2011)). However, the NCAA initially denied the Associated Press' request, claiming that such records were either not public, or protected under the Federal Educational Right to Privacy Act (FERPA), 20 U.S.C.S. [section] 1232. In addition, the NCAA contended that Florida's "sunshine" law did not apply to documents accessed via a website, since no actual documents or emails were physically received by a state agency within the boundaries of the state of Florida (NCAA v. The Associated Press, 2009).

Legal Issues Presented in the Case

This case involved several questions of law, including: (a) How do documents become public records?; (b) what type of documents are considered part of the "public record"?; (c) how can a document prepared by a private party qualify as a public record?; (d) what is the extent of the public's right to inspect public records; and (e) at what point do redacted public records cease to be "education records" under FERPA?

In addressing these questions, the appellate court relied upon Art. I, [section] 24(a), of the Florida Constitution that grants "[e]very person the right to inspect or copy any public record made or received in connection with the official business of any public body, officer or employee of the state, or persons acting on their behalf." Specifically, the court referenced the first sentence of Section 119, noting it "... declares that it is the policy in the state that all state, county and municipal records are open for personal inspection and copying by any person and that providing access to public records is a duty of each agency" (NCAA v. The Associated Press, 2009, p. 6).

Since technology provides many outlets for producing and storing "documents," the court noted that the public records law is not limited to paper documents but that it applies, as well, to documents that exist only in digital form. Specifically, the court noted:

Section 119.01(2)(a) makes it clear that the public records law applies to documents maintained on a computer in the same way that it would apply to those kept in a file cabinet. This section notes the increased dependency on computerized records and it directs that "each agency must provide reasonable access to records electronically maintained." It goes on to conclude that the automation of public records "must not erode the right of access to those records." (NCAA v. The Associated Press, 2009, p. 6)

Having established that computerized records are "documents," the court, relying on a previous Florida Supreme Court ruling, noted that in Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc. (1980) the court defined a "record" as used in section 119.011(12) as "... any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type" (p. 640). The court noted that by this definition "... a document may qualify as a public record under the statute if it was prepared by a private party, so long as it was 'received' by a government agent and used in the transaction of public business" (NCAA v. The Associated Press, 2009, p. 2).

In addition to ruling that documents prepared by private entities can become public records, the court also ruled that confidentiality agreements by governmental agents do not transform public records into private records (see Gadd v. News-Press Publishing Co. [1982]; Browning v. Walton [1977]). Specifically referring to Sepro Corp. v. Florida Department of Environmental Protection (2003), the court noted: "'[A] private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.' The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government" (p. 7).

Finally, the court dealt with the NCAA's contention that the investigative transcript and response were exempt from disclosure because they contained "education records" protected by the Family Educational Rights and Privacy Act (FERPA). Noting that "... a record qualifies as an education record only if it 'directly' relates to a student" (See Ellis v. Cleveland Municipal School District, 2004), the court ruled that since the records pertained primarily to FSU's athletic department's allegations of misconduct, they were not education records. In any event, the transcript and response would not be protected from disclosure since the identities of the students were redacted and therefore not revealed.

Management Implications

To the average college football fan, the NCAA penalties assessed against FSU and its resulting impact on Bowden's all-time win-loss record was the main story. To many intercollegiate-athletic administrators, FSU's major-violation infractions penalty for significant academic misconduct violations that permeated its athletic department was of primary concern. However, the NCAA v. The Associated Press case may have significant long-term ramifications for the NCAA and its members that dwarf the penalties Bobby Bowden and FSU received.

Florida's "sunshine" laws are based upon the federal Freedom of Information Act (5 U.S.C.A [section] 552), and are similar to sunshine laws in other states. These laws permit citizens to observe the conduct and expenditures of government agencies ("Freedom of Information Act," n. d.). Despite the NCAA's contention that as a non-state actor's, its computerized documents are not "public records," the Florida trial court's decision established a precedent that could be asserted in future cases involving the activities of the NCAA with regard to their public member institutions. Since the NCAA prepares thousands of documents that are received by government "agents" (i.e. NCAA members that are public universities), NCAA and conference documents which may include media contracts, memos, and investigative transcripts may be considered public records, subject to Freedom of Information Act (FOIA) requests.

While the NCAA may not have wanted to share documents related to this investigation with the general public or media, it should be noted that the FSU infractions case did not involve matters of "national security" or the release of specific private individual student records--areas a court would likely deem to be "protected" from public scrutiny (NCAA v. The Associated Press, 2009). The NCAA's attempt to limit media access to its enforcement activities, and its interactions with a member university/athletic department (that happens to be a state agency), may reflect the association's and its members' desire to shield its due-process provisions, or lack thereof, from public and media scrutiny (National Collegiate Athletic Association, 2011a).

When interactions between the NCAA national office and member institutions are publicly scrutinized, as in McAdoo v. UNC (2011), an interesting dynamic often emerges. Contrary to the US legal system's concept of "due process," in the NCAA's collegiate institutional field, due process is not the same. In the NCAA's enforcement process, the NCAA serves as investigator, prosecutor, and judge. Often, when an NCAA investigation is imminent or underway, a member university will submit a "factual scenario" to the NCAA for interpretation (National Collegiate Athletic Association, 2011b; Orr, 2011). Upon receiving the NCAA's interpretative response, a school may feel compelled to "self report" a violation in order to lessen any penalty and be seen as maintaining "institutional control" (Orr, 2011). In many instances universities being investigated cooperate with the NCAA (in an attempt to lessen NCAA sanctions) and accept allegations contained in the case summary (National Collegiate Athletic Association, 2011a). The NCAA's summary disposition process and other incentives to plead guilty, and accept findings and penalties contained in a case summary or infractions report without any additional hearings or continuing the process, provide a counter-balance to NCAA pronouncements that its enforcement process employs ".many traditional due-process protections" (National Collegiate Athletic Association, 2011a, para. 13).

In addition to its effect on the NCAA's investigative process, the relevance of this case is the increasing likelihood that state educational institutions will face greater scrutiny regarding their intercollegiate-athletic operations. While the Associated Press may have simply sought additional information in order to report more fully on the case, their actions, as well as the resistance by the NCAA and Florida State University, whose attorneys signed a confidentiality agreement with the NCAA promising not to disclose any obtained information, brought this case to the attention of college football fans (NCAA v. The Associated Press, 2009). As higher-education budgets continue to shrink and various constituencies are asked to provide greater financial support for intercollegiate athletics (through higher student fees, increased donation levels for ticket privileges, etc.), the public's scrutiny of athletic department activities and expenditures will likely heighten. Many athletic departments extensively market their teams as being part of the campus community and the greater community at large. It will not be surprising if constituents (e.g. fans, booster, donors, tuition-paying students and their parents), long influenced by athletic departments' and third-party partners' sport-marketing activities, demand greater access to "public" documents pertaining to "their" team.

References

5 U.S.C. [section] 552 (2011).

Browning v. Walton, 351 So. 2d 380 (Fla. Dist. Ct. App. 1977).

Carter, A. (2010, January 5). Florida State loses NCAA appeal. Orlando Sentinel. Retrieved from http://articles.orlandosentinel.com/2010-0105/sports/os-fsu-loses-appeal-0106-20100105_1_ncaa- infractions- appeals-committee-athletes-brenda-monk

Ellis v. Cleveland Municipal School District, 309 F. Supp. 2d 1019 (N.D. Ohio 2004).

Fla. Stat. [section] 119.01 (2011).

Fla. Stat. [section] 119.011(12) (2011).

Florida court rules NCAA must release Florida State records. (2010, May 24). USA Today. Retrieved from http://www.usatoday.com/sports/college/2010-05-24-ncaa-florida-state-appeal_N.htm

Freedom of Information Act. (n. d.). Retrieved from http://www.enotes.com/wests-law-encyclopedia/freedom-information-act

Gadd v. News-Press Publishing Co., 412 So. 2d 894 (Fla. Dist. Ct. App. 1982).

Landman, B. (2009, March 6). Timeline: FSU academic misconduct scandal. St. Petersburg Times. Retrieved from http://www.tampabay.com/sports/colleges/article981767.ece

McAdoo v. University of North Carolina at Chapel Hill, No. 11 CVS 3903 (Superior Court, Durham County, N.C., filed July 11, 2011).

National Collegiate Athletic Association. (2010, January 2010). Report of the National Collegiate Athletic Association Division I Infractions Appeals Committee. Retrieved from http://www.ncaa.org/wps/wcm/connect/81f3900040ee5e16b807ba7d22b ae5af/FSU+1+Public+Report+Only.pdf?MOD=AJPERES&CACHEID= 81f3900040ee5e16b807ba7d22bae5af

National Collegiate Athletic Association. (2011a). Enforcement Process: How does the process work? Retrieved from http://ncaa.org/wps/myportal/ncaahome?WCM_GLOBAL_CONTEXT=/public/NCAA/Issues/Enforcement/

National Collegiate Athletic Association. (2011b). Processing of a typical major infractions case. Retrieved from http://s3.amazonaws.com/ncaa/web_video/newmedia/flash/NCAA%20I nfractions.swf

National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. Dist. Ct. App. 2009).

National Collegiate Athletic Association v. The Associated Press, 37 So. 3d 848 (Fla. 2010).

Orr, R. (2011, July 6). McAdoo v. UNC-CH and the NCAA: Introduction to the lawsuit. NC Institute for Constitutional Law. Retrieved from http://www.ncicl.org/article/653

Sepro Corp. v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. Dist. Ct. App. 2003).

Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633 (Fla. 1980).

DISCLAIMER: Inquiries regarding this feature may be directed to Dr. Richard Southall at southall@email.unc.edu or Dr. Mark Nagel at nagelm@mailbox.sc.edu. Professors Anita M. Moorman, JD, of the University of Louisville and Steve McKelvey, JD, of the University of Massachusetts, Amherst are the co-editors of this feature column. Professor Anita M. Moorman, JD, is the editor of this section. She teaches sport law in the sport administration program at the University of Louisville. She can be contacted at amm@louisville.edu.

The materials in this column have been prepared for informational and educational purposes only, and should in no way be considered legal advice. You should not act or rely upon these materials without first consulting an attorney. By providing these materials it is not the intent of the authors or editors to enter into an attorney-client relationship with the reader. This is not a solicitation for business. If you choose to contact the authors or editors through email, please do not provide any confidential information.

Richard M. Southall, EdD, is an associate professor in the Department of Exercise and Sport Science at the University of North Carolina at Chapel Hill and the director of the College Sport Research Institute. His primary research areas include the management of intercollegiate athletics, institutional theory and college sport, and strategic management in sport.

Mark S. Nagel, EdD, is an associate professor in the Department of Sport and Entertainment Management at the University of South Carolina and the associate director of the College Sport Research Institute. His primary research areas include the management of intercollegiate athletics, sport finance, and strategic management in sport.