Knight News, Inc. v. University of Central Florida , 2016 Fla. App. LEXIS 5422 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KNIGHT NEWS, INC.,
Appellant,
v. Case No. 5D14-2951
UNIVERSITY OF CENTRAL
FLORIDA, ETC., ET AL.,
Appellees.
________________________________/
Opinion filed April 8, 2016
Appeal from the Circuit
Court for Orange County,
Patricia A. Doherty, Judge.
Justin S. Hemlepp, of J.S. Hemlepp, P.A.,
Tampa, and Robert Rivas, of Sachs Sax
Caplan, P.L., Tallahassee, for Appellant.
Charles T. Wells and Richard E. Mitchell,
of GrayRobinson, P.A., Orlando, and
Jeffrey T. Kuntz, of GrayRobinson, P.A.,
Fort Lauderdale, for Appellees University
of Central Florida Board of Trustees and
Dr. John C. Hitt.
Carol Jean LoCicero and Mark R.
Caramanica, of Thomas & Locicero PL,
Tampa, Amicus Curiae, for the Student
Press Law Center, First Amendment
Foundation, Florida Press Association,
Reporters Committee for Freedom of the
Press, and WKMG-TV in support of
Appellant.
ON MOTION FOR REHEARING, REHEARING EN BANC, CLARIFICATION AND
CERTIFICATION
EVANDER, J.
We grant in part the motion for rehearing filed by Appellant Knight News, Inc.,
and withdraw this Court’s previous opinion dated February 5, 2016, and substitute in its
place the following opinion. In light of the instant opinion, the motions for rehearing en
banc, clarification, and certification are denied.
Knight News, Inc. (“KNI”) appeals from adverse orders entered on sixteen counts
of its seventeen-count complaint filed against the University of Central Florida Board of
Trustees and the university’s president, Dr. John C. Hitt (collectively referred to
hereinafter as “UCF”).1
In its complaint, KNI sought declaratory, injunctive, and mandamus relief to
remedy UCF’s purported failure to comply with several public records requests filed by
KNI and UCF’s refusal to open certain student conduct board hearings to the public.
We conclude that the trial court erred in failing to require UCF to “unredact” the names
of student government officers alleged to have engaged in misconduct as set forth in
certain “impeachment affidavits,” but affirm the trial court’s orders in all other respects.
We write only to address UCF’s obligation to produce records that would identify
students who were the subject of allegations of hazing misconduct or students who
were the subject of allegations of misconduct related to their performance, election,
and/or appointment as student government officers.
1
UCF did not file a cross-appeal with regard to the single count in which the trial
court ruled in KNI’s favor.
2
Section 1006.52(1), Florida Statutes (2012), creates an exemption to Florida’s
Public Records Law, found in Chapter 119, Florida Statutes (2012), for students’
“education records,” which states in pertinent part:
A student’s education records, as defined in the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C. s.
1232g, and the federal regulations issued pursuant thereto,
. . . are confidential and exempt from s. 119.07(1) and s.
24(a), Art. I of the State Constitution.
§ 1006.52(1), Fla. Stat. (2012). FERPA defines “education records” as “those records,
files, documents, and other materials which--(i) contain information directly related to a
student; and (ii) are maintained by an educational agency or institution or by a person
acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). FERPA applies to all
schools that receive federal funds and is intended, inter alia, to limit the dissemination of
a student’s education records without the student’s consent. By its terms, FERPA does
not prohibit the disclosure of any education records. It does, however, act to deprive an
educational institution of its eligibility for federal funding if its policies or practices “run
afoul of the rights of access and privacy protected by the law.” NCAA v. Associated
Press, 18 So. 3d 1201, 1210 (Fla. 1st DCA 2009).
In addition to protecting “education records,” FERPA also works to protect any
personally identifiable information contained in an “education record” from improper
disclosure. Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So. 3d 851, 856 (Fla. 1st
DCA 2013); see also 20 U.S.C. § 1232g(b)(1) (“No funds shall be made available under
any applicable program to any educational agency or institution which has a policy or
practice of permitting the release of education records (or personally identifiable
information contained therein other than directory information, as defined in paragraph
3
(5) of subsection (a) of this section) of students without the written consent of their
parents to any individual, agency, or organization, other than to [enumerated
exceptions].”).
We agree with the Sixth Circuit Court of Appeals’ conclusion in United States v.
Miami University, 294 F.3d 797, 812 (6th Cir. 2002), that student disciplinary records
are “education records” subject to the protections afforded under FERPA. As observed
in Miami University, FERPA permits the release of certain student disciplinary records
and information where the alleged misconduct constitutes a crime of violence or a non-
forcible sex offense. 294 F.3d at 812. Here, we conclude that the personally identifiable
information contained within documents regarding alleged hazing incidents qualified as
student disciplinary records. Because there was no suggestion that the non-disclosed
information fell within one of the aforestated exceptions, the trial court properly denied
KNI’s request for that information.
However, we conclude that the names of student government officers charged
with malfeasance in the performance of student government duties or alleged to have
engaged in misconduct with regard to their election or appointment to their position, do
not qualify as protected “personally identifiable information” under FERPA because
student government officers have implicitly consented to the dissemination of that
information given Florida’s statutory scheme concerning university student
governments. Section 1004.26, Florida Statutes (2012),2 provides that a university
2
1004.26 University student government–
(1) A student government is created on the main campus of
each state university. In addition, each university board of
trustees may establish a student government on any branch
4
campus or center. Each student government is a part of the
university at which it is established.
(2) Each student government shall be organized and
maintained by students and shall be composed of at least a
student body president, a student legislative body, and a
student judiciary. The student body president and the
student legislative body shall be elected by the student body;
however, interim vacancies and the student judiciary may be
filled in a manner other than election as prescribed by the
internal procedures of the student government.
(3) Each student government shall adopt internal procedures
governing:
(a)The operation and administration of the student
government.
(b)The execution of all other duties as prescribed to the
student government by law.
(4)(a)The qualifications, elections, and returns, the
appointments, and the suspension, removal, and discipline
of officers of the student government shall be determined by
the student government as prescribed by its internal
procedures.
(b) Any elected or appointed officer of the student
government may be removed from office by the majority vote
of students participating in a referendum held under this
paragraph. Each student government shall adopt internal
procedures by which students may petition for a referendum
to remove from office an elected or appointed officer of the
student government. The grounds for removal of a student
government officer by petition must be expressly contained
in the petition and are limited to the following: malfeasance,
misfeasance, neglect of duty, incompetence, permanent
inability to perform official duties, or conviction of a felony.
The referendum must be held no later than 60 days after the
filing of the petition.
(c) Each student government shall adopt internal procedures
providing for the suspension and removal of an elected or
appointed student government officer following the
conviction of that officer of a felony.
5
student government is required to adopt internal procedures governing “[t]he
qualifications, elections, and returns, the appointments, and the suspension, removal,
and discipline of officers of the student government[.]” § 1004.26(4)(a), Fla. Stat. (2012).
Furthermore, section 1004.26(4)(b) authorizes the removal of student government
officers for malfeasance and other enumerated causes by majority vote of students
participating in a referendum held pursuant to the requirements set forth in the statute.
Accordingly, under this statutory scheme, student government officers know or
reasonably should know (given their voluntary decision to seek election or appointment
as a student government officer) that they may be disciplined for misconduct in the
performance of their student government duties or alleged misconduct related to their
election or appointment, either by referendum vote of the university’s students or by
vote of other student government officers in a public meeting.3 We hold, therefore, that
such information concerning misconduct by student government officers is not protected
from disclosure under FERPA.
AFFIRMED, in part; REVERSED, in part; and REMANDED.
LAWSON, C.J. and EDWARDS, J., concur.
(5) There shall be no cause of action against a state
university for the actions or decisions of the student
government of that state university unless the action or
decision is made final by the state university and constitutes
a violation of state or federal law.
3
See Univ. of Cent. Fla. Student Body Stat. § 1201.1 (“Student Government
meetings are public meetings that must be held in compliance with the provisions of the
Sunshine Law and Florida Statutes.”).
6