NCAA Forcing Florida State to Violate Public Records Law, Expert Says
The Seminoles have until June 17 to rebut the NCAA Committee on Infractions' response to the school's appeal of a sanction to vacate victories stemming from an academic misconduct case. But how the Committee on Infractions answered the issues FSU raised put the Seminoles in an awkward position and remains a mystery -- and is in violation of Florida's law on public access, according to the president of The First Amendment Foundation.
The NCAA on Tuesday posted the Committee on Infractions' response on a secure NCAA custodial Web site that allows the document to be read only and not downloaded or printed out. The response -- the next step in a process that's far from over -- could only be accessed by FSU's outside counsel.
The Seminoles are challenging a portion of the sanctions announced in March that would force the school to vacate as many as 14 of coach Bobby Bowden's 382 career football wins -- just one fewer than Penn State's Joe Paterno.
FSU has 13 days, and counting, to submit a rebuttal that the university plans to make public "with certain adjustments due to state and federal privacy laws," Until that time, however, Seminole fans can only guess what's on the mind of the NCAA Committee on Infractions -- or more precisely what was posted on the NCAA's secure Web site.
FSU President T.K. Wetherell told The Tallahassee Democrat Wednesday that the university wants to release the NCAA's answer but it can't. "It's not us," he said. "It's the NCAA. We don't want to keep it secret." Betty Steffens, the university's general counsel, also told the newspaper that FSU asked the NCAA to release the document, but it declined.She also said that the NCAA allowed FSU outside attorney Bill E. Williams of Tallahassee to read the document but only after he signed a confidentiality agreement.
In an interview with FanHouse Wednesday night, Barbara A. Petersen, president of The First Amendment Foundation, a non-profit organization based in Tallahassee, Fla., said FSU is in violation of Florida's public records law by refusing to release the response from the Committee on Infractions.
"The problem is this -- the NCAA has basically put Florida State between a rock and a hard place," said Petersen, the foundation's president since 1995 and a graduate of the University of Missouri and Florida State University College of Law. "It doesn't matter what the NCAA says. That's why I say they kind of put FSU between a rock and a hard place -- they are damned if they do and damned if they don't.
"It's pretty unique I will say that," Petersen said of the NCAA's method of response, one that only fuels the organizations' reputation that it operates in a suspect and secretive manner.
"I think what the NCAA is doing is basically cheating Florida State fans and the citizens in Florida by doing this."
-- Barbara A. PetersenStacey Osburn, spokesperson for the NCAA, told The Orlando Sentinel the reason the organization uses a secure Web site is twofold: "It's to maintain the confidentiality of those documents but it's also to make sure that we have state and private schools that remain on equal footing when they go through [the appeals] process," Osburn said.
Petersen wasn't buying the explanation.
"It's pretty crafty but it's also disgusting," Peterson said.
"The NCAA is all about teaching collegiate athletes the difference between what's right and wrong. It's wrong to cheat and you are going to suffer the consequences of cheating. But it's also wrong to thumb your nose at a constitutional requirement and to thumb your nose at state law. What kind of lesson are they teaching here?"
Petersen argues that the public, under state and constitutional law, has the right to know what is happening with its governmental agencies, period. It doesn't matter that a public agency such as FSU is a member of the NCAA, which is a private organization based in Indianapolis.
"It doesn't matter what the sender of the document says," Petersen said of the NCAA's methods.
"I really don't care what they are trying to do. The document is not confidential in Florida. There might be some information in there -- I don't know -- but there could be information in there that's exempt from public disclosure. But under Florida law again you have to take out what is exempt and provide access to the remainder, and that would be the duty of Florida State University.
"And we also don't even allow a balancing of interest by the custodial agency or even the court. A court couldn't look at this and say, 'Oh we have to really be sensitive to this because we want to make sure the private universities and the private colleges and state universities are on equal footing.' The court in Florida doesn't get to make that balancing test. Only the legislature can create exemptions to our constitutional right of access."
A ruling by the Infractions Appeals Committee isn't likely to be delivered until a month or more after FSU appears before that committee. FSU has previously asked for a hearing, but a date has not been set. FSU officials have said it will likely be fall before the NCAA delivers its final ruling.
At the moment, however, the public is in the dark concerning the Committee on Infractions' response to the school's appeal of a sanction to vacate victories stemming from an academic misconduct case. Peterson said the public's option is to take legal action against FSU to, in this case, allow it to read the document from the NCAA. Steffens, FSU's general counsel, told The Tallahassee Democrat she had not seen the document but her understanding is the the NCAA did not move from its position that FSU must vacate victories in multiple sports.
"There's no doubt that the NCAA's response -- it's the response to the FSU appeal -- that document sent by the NCAA to Florida State University is unquestionably a public record under Florida law. So it's subject to disclosure under the law," Petersen said.
"If you made a public records request as a reporter, if I made a public records request as a citizen and say a sports fan in Idaho made a public records request for this NCAA document, Florida State has a statutory and constitutional duty to provide access to that record in a reasonable manner.
"In the method by which they provided this document to Florida State, as I understand it, in order to access you have to go the NCAA's secure Web site and enter a password in order to get access to it. The document is not download-able and it's not printable. So how is Florida State going to provide access to it pursuant to [a] public record's request? We have a right under Florida law to inspect and copy public records."
And who's to blame for keeping the document secret?
"I blame not FSU, I blame the NCAA," Petersen said.
"We have case law in Florida where the courts have said you can't contract away your obligations under the public records law or the open meetings law. Again, it would make the public records law virtually meaningless if a government agency could, by contract, avoid the constitutional requirements and the statutory requirements. Simply by becoming a member of the NCAA that does not mean Florida State can sort of scrap the constitution simply because the NCAA says you have to.
"I think what the NCAA is doing is basically cheating Florida State fans and the citizens in Florida by doing this. They've really put Florida State in a very difficult situation. I think the university will most likely get sued by people wanting access to that document. It's a very difficult position for the university to be in."