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v. CASE NO.: 2013-CA-5265-O 2013-WR-0000034-A-O

THE UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, Respondent. ________________________________________/ PETITIONERS RESPONSE TO UCF BOARDS EMERGENCY MOTION TO COMPEL RETURN OF INADVERTENT PRODUCTION Petitioner, JOHN BECKER, through counsel, files this Response to UCF BOARDs Emergency Motion to Compel Return of Inadvertent Production (Motion).

The public records which UCF seeks to claw back were not produced in

response to any discovery request by a party in this case and do not contain any privileged information. 1 Rather, the public records that UCF claims it inadvertently produced was in response to a public records request made by an individual who is not a party to this litigation and which the Court has no jurisdiction over (the public records production).

Petitioner denies that the public records production by UCF contain private

records or public records that are exempt. The cover letter from UCFs Office of the General Counsel transmitting the public records production to another individual clearly stated that the records were the business-related, non-student email messages from Dr. Wrights account. See Exhibit 1, attached hereto.
Significantly, UCF does not assert that the records are subject to any statutory privilege such as attorney-client or work product. Thus, the rules relating to an alleged inadvertent disclosure of privileged material are not applicable.


Even if the public records production contained exempt records, UCF has The documents were

clearly waived any exemption it could have previously asserted. produced in response to a public records request under Chapter 119.

In the context of the Public Records Act, which is the relevant context here,

there is a strict rule of waiver of statutory exemptions when a public body discloses information that it contends is protected from disclosure. The Florida Supreme Court has extended the

waiver doctrine to privileged material. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (State waived any attorney-client privilege that may have existed in two memorandum, in proceeding upon prisoner's all writs petition challenging the constitutionality of State's lethal injection procedures under the Eighth Amendment, when it disclosed memorandum to prisoner's attorney as part of a public records response). Other courts have extended the waiver doctrine to situations where an agency could have invoked a statutory exemption to shield disclosure. See City of St. Petersburg v. Romine, 719 So. 2d 19 (Fla. 2d DCA 1998) (requiring disclosure of records alleged to be exempt because the agency had already orally released the same information); Downs v. Austin, 522 So. 2d 931, 935 (Fla. 1st DCA 1988) (once the State has gone public with information which could have previously been protected from disclosure under the Act's exemptions, no further purpose is served by preventing full access to the desired documents or information.); Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992) (statutory exemptions do not apply if the information has already been made public.); see also Barfield v. City of Sarasota, Case No. 2012-CA-7195 (12th Jud. Cir., Sarasota County) (City lost ability to assert active criminal investigative exemption after it revealed video to third party), available at 2


In Romine and Austin, the Courts deemed oral statements about otherwise

exempt public records sufficient to waive any exemption and require disclosure of the records. Here, a much more detailed disclosure of public records has already occurred. More important, other individuals not before the Court, including media outlets, obtained access to the public records production. Because the records are already public, no further purpose is served by preventing full access to the desired documents or information. Downs, 522 So. 2d at 935.

The decision in Tampa Convention Hotel Associates, Inc. v. City of Tampa, 01That case

00668, 2001 WL 34402966 (Fla. Cir. Ct. 2001), affords no shelter to UCF.

prospectively determined the process by which production of public records would occur under a court order. Here, no discovery rule or court order governed the public records production made by UCF to an individual who is not a party to this action. Additionally, that case is not binding on this Court and conflicts with the authorities cited above.

As for the unredacted version of Dr. Wrights contract with Elsevier, it is clear

that Dr. Wright furnished that document to Tanya Perry, a UCF employee, in August 2012, well before the underlying litigation or any public records request by Mr. Becker. The contract, therefore, was furnished in connection with official University business. See Sepro Corp. v. Florida Dept. of Envtl. Prot., 839 So. 2d 781, 784 (Fla. 1st DCA 2003) (a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.).

In this case, Dr. Wright, a UCF employee, furnished the contract to Tanya

Perry, another UCF employee via their respective university e-mail accounts. Under these

circumstances, the record was made or received in connection with the transaction of official agency business. 2

Regardless, there is no privilege that attaches to the contract. Dr. Wright and

the University possessed and produced it in response to a public records request. The document is not marked confidential. Any confidentiality that existed between the parties was waived when Dr. Wright furnished it to UCF who then turned it over in response to a public records request.

Because the public records production was made to a non-party and not under

any stipulation, court order, or discovery request, this Court has no jurisdiction to entertain the request by UCF to clawback the documents it contends were inadvertently released. WHEREFORE, Petitioner respectfully requests that the Court deny the Motion. Respectfully submitted,

/s/ Andrea Flynn Mogensen___________________ ANDREA FLYNN MOGENSEN, Esquire The Law Office of Andrea Flynn Mogensen, P.A. 200 South Washington Boulevard, Suite 7 Sarasota FL 34236 Telephone: 941.955.1066 Florida Bar No. 0549681 VICTOR LEE CHAPMAN Florida Bar No. 407429 Barrett, Chapman & Ruta, P.A. 18 Wall Street
Under 119.011(12), Florida Statutes, Public records means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. (Emphasis added).

Orlando, FL 32801 (407) 839-6227 (Primary) (Secondary) Attorneys for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of June, 2013, I electronically filed the foregoing with the Clerk of Court by using the eFiling Portal. I further certify that a true and correct copy of the foregoing has been served via email to the following:

Richard E. Mitchell, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, FL 32801

/s/ Andrea Flynn Mogensen___________________ ANDREA FLYNN MOGENSEN, Esquire


Office of the General Counsel

Mr. Barfield, Please find attached a link to the files requested in your public records request dated May 22, 2013. The emails are contained in separate PST files. The PST for (entitled Records Request) should contain 181 emails. The PST for (entitled SAndrews emails) should contain 433 emails. Messages of a personal nature, such as communications from family members, are not public record and were removed. Messages which after review revealed themselves to be of a confidential and exempt nature for example, education records - were removed. Thus, messages were removed in the following exemption categories: 1. Education records material directly related to a student and maintained by the University Per 1002.225, 1006.52, 20 USC 1232g, 34 CFR Part 99 2. Collective Bargaining Work Product work product developed by the public employer in preparation for collective bargaining negotiations and during negotiations Per 447.605(3) 3. Litigation work product work product developed by an agency attorney or prepared at the attorneys express direction reflecting mental impressions, conclusions, litigation strategy, or legal theory of the attorney or the agency; and prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings; and where such litigation or proceedings are still in progress. Per 119.071(1)(d) Parties: UCF and United Faculty of Florida Parties: UCF and United Faculty of Florida (representing Charlotte Trinquet) Parties: UCF and John Becker Sincerely, Tanya

P.O. Box 160015, Orlando, FL 328160015 4078232482 4078236155 Fax