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Grincewicz UCF Public Records Order.pdf

Grincewicz UCF Public Records Order.pdf

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Published by srothaus
Ruling by Orange County, Fla., Circuit Judge Donald Grincewicz that the University of Central Florida must turn over records related to the publication of a 2012 study conducted by Mark Regnerus.
Ruling by Orange County, Fla., Circuit Judge Donald Grincewicz that the University of Central Florida must turn over records related to the publication of a 2012 study conducted by Mark Regnerus.

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Published by: srothaus on Nov 13, 2013
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11/19/2013

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 IN THE CIRCUIT COURT OF THE  NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA JOHN M. BECKER, Petitioner, CASE NO.: 2013-CA-5265-0 2013-WR-0000034-A-O v. UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, (“UCF BOT”) Respondent.  __________________________________/
ORDER ON RESPONDENT’S AMENDED EMERGENCY MOTION TO COMPEL TO COMPEL RETURN OF INADVERTENTLY DISCLOSED DOCUMENTS
This is a public records case. Now before the Court is the Amended Emergency Motion to Compel Return of Inadvertent Production of the respondent, University of Central Florida Board of Trustees (“UCF” or “respondent”). The Court’s disposition of that motion necessarily requires it to decide the ultimate issue of petitioner’s entitlement to the documents in issue. The records sought cover a broad range of documents associated with James Wright (“Wright”), a professor of sociology at the University of Central Florida and editor-in-chief of the Social Science Research Journal (“Journal” or “SSR”). The parties have focused on e-mails sent and received in connection with an article in the June, 2012 edition of the Journal called “How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?” and authored by Mark Regnerus, an associate professor of sociology at the University of Texas at
 
Austin. The article was based upon something called a “New Family Structure Study.” Criticism of the article ensued and soon became an object of nationwide controversy. While the Regnerus article seems to have become the focus of the parties’ attention, the Courts’ in camera review of the disputed e-mails demonstrates that the majority relate to other matters including a book Wright was co-authoring about something known as “contract marriage.” The petitioner, John Becker (“Becker” or “petitioner”), is a self-described “investigative  journalist” who sent UCF a “Freedom of Information Act request” for the records. In response to Becker’s request, UCF advised that: “The documents were “made by Doctor Wright in his position as editor of SSR and are not university records. As you know, Elsevier publishes SSR. Dr. Wright has contracted directly with and receives remuneration from Elsevier for his work on SSR. Accordingly, any documents relating to SSR, or to Dr. Wright’s work on SSR are the property of SSR and not the University of Central Florida.” Petitioner, of course, was not satisfied with that response and instituted this action. This reply does not account for e-mails associated with Wright’s authorship of a book but UCF has asserted that these communications are “not university business.” Shortly before a scheduled hearing in this matter, UCF produced to Becker’s counsel a flash drive containing copies of more than 50,000 e-mails. On June 25, UCF claimed that it had inadvertently produced 357 records and now wants them back. Of the records UCF wants returned, some are claimed to be “not university business” and thus not public records at all. Others, UCF argues, are public records exempt from inspection  because they fall within the purview of the Family Educational Rights and Privacy Act (“FERPA”).
See
 § 1002.225(1), Fla. Stat. (2013); 20 U.S.C. section 1232g (2013). - 2 -
 
 The Court requested that the records in issue be submitted for an in camera review. Generally, “[w]hen statutory exemptions are claimed by the party against whom the public records request has been filed . . . , the proper procedure is to furnish the document to the trial  judge for an
in camera
 inspection.. . . . At that time, the trial judge can properly determine if the document is, in fact, subject to public records disclosure.”
Walton v. Dugger 
, 634 So. 2d 1059, 1061-62 (Fla. 1993). [I]n-camera inspection of assertedly exempt records is generally the only way for a trial court to determine whether or not a claim of exemption applies.
See Weeks v. Golden,
 764 So. 2d 633, 635 (Fla. 1st DCA 2000) (with respect to “question of entitlement” to assertedly exempt records, commenting, “We fail to see how the trial court can [determine whether records are exempt] without examining the records”);
accord Lopez v. Singletary,
 634 So. 2d 1054, 1058 (Fla. 1993) (remarking that “it is for a judge to determine, in an in camera inspection, whether particular documents must be disclosed”).
Garrison v. Bailey
, 4 So. 3d 683 (Fla. 1st DCA 2009). As the Court understands it, Becker does not simply argue that the documents are public records-simply by virtue of being stored on a UCF computer or computers. Instead Becker has “asserted that there is a substantial relationship between the official business of UCF and  publication of the [J]ournal.” (Pet. Resp. to UCF Mot. for Protective Order 2.) This case, then, is unlike
Times Publ’g Co. v. City of Clearwater 
, 830 So. 2d 844 (Fla. 2d DCA 2002)
approved sub nom
.
State v. City of Clearwater,
 863 So. 2d 149 (Fla. 2003) where a newspaper sought a  bright-line ruling that all e-mail on a City’s computer system was “public record.”
Times Publ’g Co. v. City of Clearwater 
, 830 So. 2d 844, 846 (Fla. 2d DCA 2002)
approved sub nom. State v. City of Clearwater 
, 863 So. 2d 149 (Fla. 2003). As
City of Clearwater 
 involved a “bright line” legal issue no in camera inspection was required. Such is not the case here. Even though the - 3 -

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