in the circuit court of the ninth judicial …s3.amazonaws.com/cdn.getsnworks.com/spl/pdf/knightnews...

of 30

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

KNIGHT NEWS, INC.,

Plaintiff,

v.

THE UNIVERSITY OF CENTRAL FLORIDA

BOARD OF TRUSTEES, et al.,

Defendants. /

Case No: 2013-CA-2664-O

MOTION FOR ALTERNATIVE WRIT OF MANDAMUS

AND RESPONSE IN OPPOSITION TO DEFENDANTS’ “MOTION TO DISMISS AND

ALTERNATIVE MOTION FOR SUMMARY JUDGMENT”

Plaintiff KNIGHT NEWS, INC. (“Knight News”), by and through undersigned counsel and

pursuant to Rules 1.510(c) and 1.630(d) Florida Rules of Civil Procedure, and other applicable law,

hereby responds in opposition to the March 13, 2013 Motion to Dismiss and Alternative Motion for

Summary Judgment (“Motion”) filed by Defendants THE UNIVERSITY OF CENTRAL FLORIDA

BOARD OF TRUSTEES and JOHN C. HITT (collectively “UCF”) and moves for entry of an

alternative writ of mandamus compelling UCF to either perform certain acts as sought in Plaintiff’s

Verified Complaint for Writ of Mandamus, Declaratory Relief and Permanent Injunction

(“Complaint”) or answer the Complaint. In support thereof, Knight News states as follows:

PROCEDURAL HISTORY

On February 20, 2013, Knight News notified UCF that it intended to file its Complaint based on

ten of Defendants’ alleged violations of Florida’s Public Records Act and Government-in-the-Sunshine

Law during the preceding year. Plaintiff’s Complaint states multiple claims for writs of mandamus,

declaratory relief and injunctive relief.1

First, Plaintiff seeks a writ of mandamus ordering the Defendants to produce in an unredacted

manner:

a) certain requested impeachment affidavits, [Complaint, Ct. I];

b) certain requested election violations affidavits, [Id., Ct. II];

c) certain requested A&S Fee budget request packets, [Id., Ct. III];

1 Due to an editing error, the Complaint contains no Count XVII.

of 30

d) certain requested “Passing the Gavel” expense reports, [Id., Ct. IV];

e) certain requested Homecoming 2012 contracts, [Id., Ct. V];

f) certain requested hazing incident reports, [Id., Ct. VI]; and

g) a certain requested speaker’s contract, [Id., Ct. VII];

Second, Plaintiff seeks a declaratory judgment stating that:

a) Defendants must, when producing redacted public records, state in writing and with

particularity the reasons it concludes the records are exempt from disclosure, including the statutory

basis of the exemption justifying said redactions, [Id., Ct. VIII];

b) Defendants must produce public records to Knight News in a timely fashion, [Id., Ct. IX];

c) Defendants must treat Knight News equally to other requestors of public records, specifically,

ordering Defendants to provide to Knight News public records requested by Knight News in a timely

fashion, and not after production of the same records to other requestors whose requests postdate the

Plaintiff’s, [Id., Ct. X];

d) UCF Regulations 5.013(2)(d) and 5.013(3)(c)(10), as applied to “interim suspension

hearings” concerning the discipline of student organizations, are in direct conflict with Section

286.011(1), Florida Statutes, rendering the regulations unconstitutional and any decisions made at the

November 20, 2012 Student Conduct Board hearing not binding, [Id., Ct. XV];

e) UCF Regulations 5.013(2)(d) and 5.013(3)(c)(10), as applied to Student Conduct Board

“formal panel hearings” concerning the discipline of student organizations, are in direct conflict with

Section 286.011(1), Florida Statutes, rendering the regulations unconstitutional and any decisions

made at the December 11, 2012 Student Conduct Board hearing not binding, [Id., Ct. XVI]; and,

Finally, Plaintiff also seeks permanent injunction requiring the Defendants to:

a) when responding to future public records requests from Knight News, state the basis of

exemptions it claims are applicable to the production of public records and the reason the records are

confidential, [Id., Ct. XI];

b) produce public records requested by Knight News in a timely fashion, [Id., Ct. XII];

c) treat Knight News equally to other requestors of public records, specifically, by producing to

Knight News records in a timely fashion and not after production of the same records to another

requestor whose request postdates Knight News’s request, [Id., Ct. XIII];

d) keep minutes of the deliberations of all Student Conduct Board hearings, [Id., Ct. XIV]; and,

e) open to the public Student Conduct Board hearings concerning discipline of student

of 30

organizations. [Id., Ct. XVIII.]

Defendants’ counsel notified the undersigned later on February 20, 2013 that he would

represent Defendants. [See, e.g., Motion, Ex. C.] Knight News filed its Complaint on the next day, and

Defendants’ counsel notified the undersigned he was authorized to accept service of process on behalf

of the Defendants. He accepted service of process on behalf of the Defendants on that day.

Defendants’ counsel filed a Notice of Appearance and Designation of E-mail Address on

February 22, 2013. Subsequently, on March 13, 2013, Defendants served their Motion. Neither

Defendants’ Notice nor their Motion raised objections to the process, service of the process, the method

of service, the Court’s jurisdiction, venue, failure to join indispensable parties or any other related

matters. Unlike Plaintiff’s Complaint, Defendants’ Motion is not verified. And Defendants have to date

filed no affidavits nor “specifically identif[ied]” what summary judgment evidence upon which they

rely, except Plaintiff’s Complaint. See Fla. R. Civ. P. 1.510(c).

LEGAL STANDARDS

I. Motion to Dismiss

A motion to dismiss raises a legal question: Are the facts alleged in Plaintiff’s Complaint

sufficient to state a cause of action? Meyers v. City of Jacksonville, 754 So. 2d 198, 202 (Fla. 1st DCA

2000). The trial court, when considering the legal sufficiency of the Complaint, must confine its

consideration to the four corners of the Complaint and deem true the Plaintiff’s factual allegations.

Connolly v. Sebeco, Inc., 89 So. 2d 482, 484 (Fla. 1956). The trial court must also resolve all

reasonable conclusions or inferences in favor of the Plaintiff. Weaver v. Leon Cnty. Classroom Tea

chers Ass’n, 680 So. 2d 478, 481 (Fla. 1st DCA 1996). It is well established that dismissal of a

complaint with prejudice, as requested by the Defendants here, is a very severe sanction. Meyers, 754

So. 2d at 202. The Court may only dismiss a complaint with prejudice when the Plaintiff has failed to

state a cause of action and Defendant conclusively shows the Plaintiff’s cannot amend it in such a way

as to state a cause. Meyers, 754 So. 2d at 202. Appellate courts review de novo trial court orders

dismissing a complaint for failure to state a cause of action. Hernandez v. Tallahassee Med. Ctr., Inc.,

896 So. 2d 839, 841 (Fla. 1st DCA 2005).

II. “Alternative” Motion for Summary Judgment

Defendants, in the alternative, move for summary judgment based on the authority in Coral

Ridge Prop., Inc. v. Playa Del Mar Ass’n, Inc., 505 So.2d 414 (1987). However, the Coral Ridge case

was based on very different circumstances, the parties all had signed an unambiguous release

of 30

agreement. No such agreement exists here. Moreover, the Chief Justice explained, “I observe that the

better practice would be to plead the affirmative defense and that it would not be error for a trial judge

to require such a pleading before ruling on the summary judgment motion.” Id., at 417-18 (McDonald,

C.J., concurring).

Should, however, the Court here permit Defendants to engage in something less than “better

practice,” see id., Defendants’ “alternative” motion for summary judgment is required to “specifically

identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as

would be admissible in evidence (“summary judgment evidence") on which the movant relies.” Fla. R.

Civ. P. 1.510(c). Here, nothing other than Plaintiffs’ Complaint, which is verified, has been specifically

identified. Defendants apparently rely solely upon that pleading.

The Florida Rules of Civil Procedure provide that summary judgment:

shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, admissions, affidavits, and other materials as would be

admissible in evidence on file show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a

matter of law.

Fla. R. Civ. P. 1.510(c).

The purpose of such a motion is to determine whether there is sufficient evidence to justify a

trial upon the issues raised by the pleadings. Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592 (Fla.

1961). Summary judgment is appropriate when all of the material facts are admitted. Baskin v. Griffith,

127 So.2d 467, 473-74 (Fla. 1st DCA 1961).

III. Motion for Alternative Writ of Mandamus

Finally, should the Court deny Defendant’s Motion as requested herein, this Court must also

enter an Alternative Writ of Mandamus requiring Defendants to either comply with the relief sought in

Counts I, II, III, IV, V, VI and VII of the Complaint or serve Plaintiff with an answer. See Fla. R. Civ. P.

1.630(d) (“If the complaint shows a prima facie case for relief, the court shall issue . . . (3) an

alternative writ in mandamus . . .”).

ARGUMENT

I. UCF’s Student Conduct Board Hearings Concerning the Discipline of Organizations

Must be Held in the Sunshine

a. Introduction

Defendants’ Motion embarks on an extended discussion of whether the press has a qualified

of 30

First Amendment right to access individual students’ university discipline hearings. [Motion, at 10-11.]

But Knight News’s Complaint neither makes mention of the First Amendment nor seeks access to

individual students’ discipline hearings. Rather, Plaintiff’s claims are based in Florida constitutional

and statutory law alone and seek public access only to Student Conduct Board hearings concerning the

discipline of student organizations. These Student Conduct Board hearings must be publically noticed,

open to the public and minuted because the Board transacts public business and discusses public

matters upon which foreseeable action will be taken by the Board in the exercise of the decision-

making authority delegated to it. Finally, Florida law is clear that a public meeting may not be closed in

the absence of a specific exemption to the Government-in-the-Sunshine Law merely because

confidential information might be discussed at the meeting, and, in any event, the information

discussed at Student Conduct Board hearings concerning discipline of student organizations is not

confidential.

b. The Student Conduct Board is a “board or commission” as defined by the Sunshine Law

UCF’s Student Conduct Board hearings concerning the discipline of student organizations are

meetings of a “collegial public body of the executive branch of state government” under Article I,

section 24(b) of the Florida Constitution as well as of a “board or commission” under Section 286.011,

Florida Statutes, the Government-in-the-Sunshine Law (“Sunshine Law”). Because the Board

transacts public business and discusses public matters upon which foreseeable action will be taken by

the Board in the exercise of its decision-making authority, the meetings only may be closed to the

public if a specifically enumerated exception to the law applies. See Board of Public Instruction of

Broward Cty. v. Doran, 224 So. 2d 693, 697 (Fla. 1969) (“Fla. Stat., § 286.011 (F.S.A.) contains no

exception.”); Sarasota Citizens for Responsible Gov't v. City of Sarasota, 48 So.3d 755, 762 (Fla. 2010)

(citing Fla. Const., art. I, § 24(c)) (“All governmental authorities in Florida are subject to the

requirements of the Sunshine Law unless specifically exempted.”).2

2 The Sunshine Law applies whether the board is appointed by a collegial body or a single public official. See Office

of the Florida Attorney General, GOVERNMENT-IN-THE-SUNSHINE MANUAL, at 4 (vol. 35, 2013) (citing Wood, supra,

(appointed by university president); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099

(Fla. 3d DCA 1997) (committee established by agency purchasing director to rank proposals subject to the Sunshine Law);

Op. Att’y Gen. Fla. 05-05 (recommendation-making advisory group created by police chief subject to the Sunshine Law);

Op. Att’y Gen. Fla. 85-76 (committee appointed by mayor to make recommendations about legislation subject to the

Sunshine Law); Op. Att’y Gen. Fla. 87-42 (committee appointed by mayor to draft with Chamber of Commerce a proposed

transfer of city property subject to the Sunshine Law)). Opinions of the attorney general are entitled to great weight in

construing Florida law. See, e.g., Pinellas C. Sch. Brd. v. Suncam, Inc., 829 So.2d 989 (Fla. 2d DCA 2002); Leadership Hous., Inc. v. Dep't of Revenue, 336 So.2d 1239 (Fla. 4th DCA 1976); Beverly v. Div. of Beverage of Dep't of Bus.

Regulation, 282 So.2d 657 (Fla. 1st DCA 1973).

of 30

The Sunshine Law "was enacted in the public interest to protect the public from 'closed door'

politics . . . the law must be broadly construed to effect its remedial and protective purpose." Wood v.

Marston, 442 So.2d 934, 938 (Fla. 1983). The Florida Supreme Court has explained that “[t]he statute

should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing

the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and

discussion is conducted by any committee or other authority appointed and established by a

governmental agency, and relates to any matter on which foreseeable action will be taken.” Town of

Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974).

Here, it is indisputable that the Student Conduct Board is a “board” under the Sunshine Law.

The university, pursuant to Sections 1001.706(3)(g-h), Florida Statutes, and Florida Board of

Governors Regulation 6.0105, promulgated UCF Regulation 5.011(3)(i), which defines the Student

Conduct Board:

The term “Student Conduct Board” means any person or persons

authorized by the Director of the [UCF Office of Student Rights and

Responsibilities] or designee to determine whether a student organization

has violated the Organizational Rules of Conduct and, if so, to recommend

sanctions that may be imposed. Board members are selected through an

annual application and interview process with the exception of the justices

from the Student Government Association Judicial Council. All Student

Conduct Board members, including justices, receive extensive training

from the Office of Student Conduct.

The question, then, is whether the Student Conduct Board’s hearings on the discipline of student

organizations are specifically exempted from the Sunshine Law. See Sarasota Citizens for Responsible

Gov't, 48 So.3d at 762.

i. UCF’s Student Conduct Board is a decision-making committee subject to the

Sunshine Law—not a mere “fact finding” or “advisory” body

Defendants contend that UCF’s Student Conduct Board is a “fact finding” and “advisory panel”

that merely “recommend[s] findings and sanctions” to the Director of UCF’s Office of Student Rights

and Responsibilities and therefore is exempt from the Sunshine Law. [Motion, at 11-15.] However,

"[t]he law is quite clear. An ad hoc advisory board, even if its power is limited to making

recommendations to a public agency and even if it possesses no authority to bind the agency in any

of 30

way, is subject to the Sunshine Law." Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535

So. 2d 694, 695 (Fla. 3d DCA 1988).3

The “dispositive question” here is whether the Student Conduct Board exercises delegated

decision-making authority. See Wood, 442 So.2d at 939. Whether, in fact, decision-making authority or

fact-finding authority, or both, has been delegated is evaluated according to the “nature of the act

performed, not on the make-up of the committee or the proximity of the act to the final decision."

Sarasota Citizens for Responsible Gov't, 48 So.3d at 763 (citing Wood, 442 So.2d at 939).4

In Wood, for instance, the Florida Supreme Court held that meetings of a “search and screen”

committee looking for a new law school dean must be held in the Sunshine. The Court explained that

the committee, notwithstanding its status as a fact gatherer, nonetheless also had a status as a decision

maker; it had to decide which candidates to reject and which candidates to recommend. Wood, 442

So.2d at 939-40. And in Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), the Supreme

Court held that a citizen committee appointed by a city council to assist in revising zoning ordinances

was subject to the Sunshine Law. There, the committee served as the city council’s alter ego in making

tentative decisions. The Court concluded that "any committee established by the Town Council to act in

any type of advisory capacity would be subject to the” Sunshine Law. Id. at 476.5

Here, the Student Conduct Board exercises decision-making authority delegated to it by the

Legislature, through the Florida Board of Governors, the UCF BOARD OF TRUSTEES and Defendant

HITT. First, Section 1001.706(3)(g), Florida Statutes, requires the Florida Board of Governors

3 See also Op. Att'y Gen. Fla. 96-32 (a limited exception to the applicability of the Sunshine Law to advisory

committees has been recognized for committees established for fact-finding only, but if that committee also has the

authority to make recommendations it is participating in the decision making process and is subject to the Sunshine Law).

4 As explained by the Attorney General, to determine whether a “committee is subject to the Sunshine Law, the actual function of the committee must be scrutinized to determine whether it is acting in strictly a fact-finding role or it is

exercising part of the decision-making function by sorting through options and making recommendations to the

governmental body.” Inf. Op. Att’y Gen. Fla. to Randolph, June 10, 2010.

5 See also GOVERNMENT-IN-THE-SUNSHINE MANUAL, at 4 (citing Spillis Candela & Partners, 535 So. 2d at 695

(committee compiling a report perfunctorily accepted by the board is subject to the Sunshine Law because it made a

significant ruling affecting the decision-making process; “ad hoc advisory board, even if its power is limited to making

recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the

Sunshine Law”); Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (site plan review committee created by county

ordinance to advise county manager subject to the Sunshine Law); Op. Att’y Gen. Fla. 98-13(citizen advisory committee

appointed by city council to make recommendations concerning city services subject to the Sunshine Law); Op. Att'y Gen

Fla. 94-21 (negotiating team created by city commission resolution that reports final negotiations to the commission subject to the Sunshine Law); Op. Att’y Gen. Fla. 01-84 (school advisory council created pursuant to Section 229.58 [now Section

1001.452], Florida Statutes, subject to the Sunshine Law).

of 30

(“BOG”) to establish an anti-hazing policy and enforcement procedure, and Section 1001.706(3)(h)

permits it to “establish a uniform code of conduct and appropriate penalties for violations of its

regulations by students and student organizations . . .” The BOG exercised this authority by requiring

each state university to establish a committee or panel to conduct student disciplinary hearings to

adjudicate allegations of violations of the school’s code of conduct. Fla. BOG Regulation 6.0105.

Accordingly, Defendants promulgated UCF Regulation 5.011(3)(i), which defines the Student Conduct

Board; UCF Regulation 5.012, which established “Organizational Rules of Conduct;” and Regulation

5.013, which sets forth the “Organizational Conduct Review Process; Sanctions; [and] Appeals.”

In fact, BOG regulations expressly provide that the Student Conduct Board’s decisions are, in

fact, “decisions” under Florida law. Fla. BOG Regulation 6.0105(j) (“The decisions of any university

hearing or review forum must be presented to the student in writing . . .”) (emphasis added); Fla. BOG

Regulation 6.0105(k) (“If the decision of a university hearing or review forum in a disciplinary

proceeding constitutes a recommendation to a university official for official action . . .”) (emphasis

added).

UCF Regulation 5.013 sets forth the process by with the Student Conduct Board makes its

decisions. First, when an incident is reported, UCF will review the report and consult with the relevant

parties. UCF Regulation 5.013(1)(a). “In unusual cases,” UCF may place the organization on “interim

suspension.” Id. If so, the organization is entitled to an “interim suspension hearing” before the Student

Conduct Board. Id. This hearing is conducted in the same manner as formal panel hearings of the

Student Conduct Board. [Complaint, ¶ 81, Ex. 26.] If the Board decides at the interim hearing that

suspension is warranted, the organization remains suspended until a final disposition of the charges. Id.

All Student Conduct Board’s hearings are conducted in accordance with UCF Regulation

5.013(3). [Complaint, ¶ 81, Ex. 26.] The Board is composed of two UCF faculty or staff members and

two student justices from the SGA Judicial Council.6 UCF Regulations 5.011(3)(i), 5.013(3)(a)(1). A

6 The justices of SGA’s Judicial Council are appointed by the student body president and confirmed by the Student

Senate. UCF SGA Constitution, title III, Chapter 306.1; title IV, Chapter 400.1. Additionally, the inclusion of UCF staff on

the Board is not dispositive. In News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982),

the court observed that it would be “ludicrous” to hold that “a certain committee is governed by the Sunshine Law when it

consists of members of the public, who are presumably acting for the public, but hold a committee may escape the Sunshine

Law if it consists of individuals who owe their allegiance to, and receive their salaries from, the government authority.” See

also Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So.

2d 526, 531-32 (Fla. 2d DCA 2002) (staff committee delegated decision-making authority “stand in the shoes of such public officials” for Sunshine Law purposes).

of 30

UCF employee acts as an advisor to the Board. UCF Regulation 5.013(3)(a)(2). The Board ultimately

renders a “finding(s) as to ‘in violation’ or ‘not in violation’” and recommends a sanction. Id. The

director of UCF’s Office of Student Rights and Responsibility, or his or her designee, then either

accepts the Board’s finding or remands the case for rehearing. UCF Regulation 5.013(3)(a)(3). The

director may alter the sanctions for student organizations found by the Board to be “in violation,” but

may not sanction an organization the Board finds “not in violation.” Id. Should the director remand the

case or alter the sanction, he or she must explain in writing the basis for the decision. UCF Regulation

5.013(3)(a)(4). In any event, the director has no authority to reverse the Board’s decision, and whatever

the Board’s decision, it limits the Director’s discretion in selecting further disciplinary outcomes. UCF

Regulation 5.013(3)(a)(3).

It is evident that the Student Conduct Board exercises authority delegated to it in making

decisions concerning the discipline of student organizations—quite unlike the fact-finding-only panels

examined in cases cited in Defendants’ Motion. For instance, in Bennett v. Warden, 333 So.2d 97 (Fla.

2d DCA 1976), the court considered a panel created by the university president to simply discuss

working conditions. Id. at 98. The panel made no recommendations. Id. at 100. Rather, the president

later made recommendations to another council that itself made further recommendations to the Board

of Trustees. Id. Here, however, the Student Conduct Board makes its own decisions and

recommendations. Fla. BOG Regulation 6.0105(j-k); UCF Regulation 5.013(3)(a)(3-4).

Further, in Knox v. District School Board of Brevard, also cited by Defendants, the court

considered a staff-appointed panel that merely reviewed and recommended job candidates to the staff.

821 So. 2d 311, 312-13 (Fla. 5th DCA 2002). But, here, members of the Student Conduct Board are

appointed by the elected UCF student body president, confirmed by the elected UCF Student Senate

and act in accordance with state law and regulations which explicitly provide for the Board’s decision-

making power. Fla. BOG Regulations 6.0105(j-k); UCF SGA Constitution, title III, Chapter 306.1; title

IV, Chapter 400.1. Finally, the Fifth District Court of Appeal in Finch v. Seminole County School Bd.,

explained that it only prohibited access to a certain committee meeting in Cape Publications, Inc. v.

City of Palm Bay, 473 So.2d 222 (Fla. 5th

DCA 1985), cited by the Defendants, because “the committee

had no decision-making function and was, therefore, not a board within the contemplation of the

statute.” 995 So.2d 1068, 1072 (Fla. 5th DCA 2008).

Ultimately, “[w]here the committee has been delegated decision-making authority, the

committee's meetings must be open to public scrutiny, regardless of the review procedures eventually

of 30

used by the traditional governmental body.” Sarasota Citizens for Responsible Gov't, 48 So.3d at 762

(citing Wood, 442 So.2d at 939-40). As a result, the Student Conduct Board is a decision-making body

subject to the Sunshine Law, and the Board’s hearings on the discipline of student organizations should

be open to the public.

ii. Even if records discussed at Student Conduct Board hearings on organizational

discipline are confidential, the Board’s meetings still must be held in the

Sunshine

Florida law is clear that a board or commission subject to the Sunshine Law must conduct its

meetings publically even if information supposedly confidential may be discussed during the meeting.

See Doran, 224 So. 2d at 697 (affirming injunction against board after amending it to remove language

permitting the closing of meetings concerning “privileged” matters); City of Miami Beach v. Berns, 245

So. 2d 38, 40 (Fla. 1971) (“The question of whether secret sessions could be held concerning privileged

matter was definitely determined [in Doran] . . . Whether Fla. Stat. § 286.011, F.S.A., should authorize

secret meetings for privileged matter is the concern of the Florida Legislature and unless the

Legislature amends Fla. Stat. § 286.011, F.S.A., it should be construed as containing no exceptions.”);

Sarasota Citizens for Responsible Gov't, 48 So.3d at 762 (“All governmental authorities in Florida are

subject to the requirements of the Sunshine Law unless specifically exempted.”).

As observed in a Florida Attorney General’s opinion, “[p]rior to 1991 several district courts, in

reviewing specific exemptions providing for confidential or exempt material, held that certain

proceedings could be closed when considering confidential material.” Op. Att'y Gen. Fla. 95-65.7

“However,” the Attorney General continued, “the Legislature in 1991 amended section 119.07, Florida

Statutes, to clarify its intent that: ‘An exemption from [s. 119.07] does not imply an exemption from or

exception to s. 286.011. The exemption from or exception to s. 286.011 must be expressly provided.’"

Id; see also Fla. Stat. § 119.07(7).

7 Citing Marston v. Gainesville Sun Publishing Company, Inc., 341 So. 2d 783 (Fla. 1st DCA 1976), cert. denied,

352 So. 2d 171 (Fla. 1977); Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986),

review denied, 509 So. 2d 1117 (Fla. 1987); The Tribune Company v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990), review

denied, 577 So. 2d 1330 (Fla. 1991); Florida Society of Newspaper Editors, Inc. v. Florida Public Service Commission, 543

So. 2d 1262 (Fla. 1st DCA 1989), review denied, 551 So. 2d 461 (Fla. 1989)); see also, Tribune Co. v. School Bd. of

Hillsborough County, 367 So.2d 627 (Fla., 1979); but see, Canney v. Board of Pub. Instruction of Alachua Cty., 278 So. 2d

260 (Fla. 1973) (reversing judgment permitting school board to recess a hearing to reach a decision; ordering board “to vacate any resolution, rule, regulation or formal action taken by it in connection with this cause.”.

of 30

In this light, the Attorney General has issued over more than three decades a series of at least

ten opinions confirming the consistent position of the state’s executive branch, of which UCF is a part:

“[I]n the absence of a statutory exemption, at a meeting in which privileged material is discussed, the

Government in the Sunshine Law should be read to contain no exceptions.” Op. Att'y Gen. Fla. 2010-

04 (school board meeting where confidential student records are discussed subject to Sunshine Law).8

Though Defendants express unfounded concern about an “untenable precedent forcing Florida’s

12 state universities and 20 community colleges into committing violations of student privacy rights

under FERPA,” [Motion, at 15, see also, infra], the Florida Supreme Court and Attorney General

already have explained how to handle such a grievance. It is up to the board in question to either

fashion meetings that comply with the law or petition the legislature for an exemption:

Various boards and agencies have obviously attempted to read exceptions

into the Government in the Sunshine Law which do not exist. Even though

their intentions may be sincere, such boards and agencies should not be

allowed to circumvent the plain provisions of the statute. The benefit to

the public far outweighs the inconvenience of the board or agency. If the

board or agency feels aggrieved, then the remedy lies in the halls of the

Legislature and not in efforts to circumvent the plain provisions of the

statute by devious ways in the hope that the judiciary will read some

exception into the law."

Canney v. Board of Pub. Instruction of Alachua Cty., 278 So. 2d 260 (Fla. 1973); see also Op. Att'y

Gen. Fla. 2010-04 (“While this office would caution the School Board to be mindful of the sensitivity

of the information to be discussed, this office will not suggest or pass on the validity of procedures for

conducting these meetings in a manner that will not breach any confidentiality. This office would

strongly suggest that the Legislature revisit this issue . . .”).

UCF, therefore, lacks the authority to close a public hearing absent a specific statutory

exemption. There is none here. As a result, UCF’s Student Conduct Board hearings on organizational

8 See also, e.g., Op. Att'y Gen. Fla. 80-78 (county industrial development has "no statutory authority to close any of

its meetings, regardless of the nature of matters discussed, and possesses no discretion to close any of its meetings"); Op.

Att'y Gen. Fla. 80-99 (meetings between a DBPR office and various regulatory boards where examination items are

discussed subject to Sunshine Law); Op. Att'y Gen. Fla. 83-52 (DBPR examination grade review hearings subject to

Sunshine Law); Op. Att'y Gen. Fla. 91-45 (school board meetings where confidential student records are discussed are

subject to the Sunshine Law); Op. Att'y Gen. Fla. 91-75 (school board meetings to consider confidential information relating

to the investigation of a complaint against a public school employee subject to the Sunshine Law); Op. Att'y Gen. Fla. 92-56

(school board meeting where confidential student information is discussed subject to Sunshine Law); Op. Att'y Gen. Fla. 95-

65 (health department district review committee meetings where confidential information is discussed subject to Sunshine

Law); Op. Att'y Gen. Fla. 2004-44 (meetings of nonprofit corporation managing the correctional work programs of the Department of Corrections where confidential information is discussed subject to Sunshine Law).

of 30

discipline are not exempt from the Sunshine Law even if confidential information may be discussed in

those hearings.

iii. The records discussed at Student Conduct Board hearings on organizational

discipline are not confidential “education records”

Nonetheless, the records discussed during Student Conduct Board hearings on organizational

discipline are not confidential as claimed by the Defendants, who incorrectly allege that a court order

granting the relief sought by the Plaintiff will force UCF to violate the Family Educational Rights and

Privacy Act, 20 U.S.C. § 1232g, (“FERPA” or “the Buckley Amendment”).

As a preliminary matter, FERPA doesn’t actually prohibit the disclosure of anything. As

observed by the Georgia Supreme Court in Red & Black Pub. Co. v. Bd. of Regents, a case just like the

instant action where a student newspaper sued for access to the disciplinary hearings of student

organizations and related disciplinary records, “the Buckley Amendment does not prohibit disclosure of

records. Rather, as noted by the trial court, the Buckley Amendment provides for the withholding of

federal funds for institutions that have a policy or practice of permitting the release of educational

records.” 427 S.E.2d 257, 261 (Ga. 1993) (citing Student Bar Assn. Bd. of Governors v. Byrd,239

S.E.2d 415, 419 (N.C. 1977); Tombrello v. USX Corp.,763 F.Supp. 541, 545-546 (N.D. Ala. 1991);

Bauer v. Kincaid,759 F.Supp. 575, 589 (W.D. Mo. 1991)). Florida’s laws on both open meetings and

public records make no mention of a federal-sanction exemption to compliance with state law.

Indeed, should Knight News prevail, UCF will face no federal sanction. First, UCF only can be

sanctioned after receiving a notice of violation and plan of correction from the U.S. Department of

Education, and the Department determines that “compliance cannot be secured by voluntary means.”

20 U.S.C. § 1232g(f ).9 Moreover, FERPA “specifically provides that the sanction of loss of federal

funding does not occur when the institution furnishes information in compliance with a judicial order,”

like that sought in the instant action. Red & Black Pub. Co., 427 S.E.2d at 261-62 (citing 20 U.S.C. §

1232g(b)(2)(B); State v. Birdsall,568 P.2d 1094, 1097 (Ariz. 1977); Rios v. Read, 73 F.R.D. 589, 598

(E.D. N.Y. 1977)).

Even if FERPA did create an exemption to Florida’s laws on public records and open meetings,

the information discussed in UCF’s Student Conduct Board hearings concerning the discipline of

9 Through at least 2011, the Department has not imposed a FERPA sanction upon a university. Student Press Law

Center, “FERPA and access to public records,” at 3, (2011), available at http://www.splc.org/pdf/ferpa_wp.pdf (last accessed March 28, 2013).

of 30

student organizations are not “education records” as defined by FERPA. The law 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).

Documents discussed in individual student disciplinary actions often are covered by FERPA.

See, e.g., U.S. v. Miami Univ., 294 F.3d 797, 811-14 (6th

Cir. 2002); but see Pub. L. No. 105-244, § 951,

105th Cong., 2nd Sess. (October 7, 1998) (amending FERPA so as not to prohibit disclosure of certain

information concerning “disciplinary proceeding[s] conducted by such institution against a student”).

The U.S. Department of Education defines a disciplinary action as “the investigation, adjudication, or

imposition of sanctions by an educational agency or institution with respect to an infraction or violation

of the internal rules of conduct applicable to students of the agency or institution.” 34 C.F.R. 99.3

(emphasis added). However, the claims at issue in this case are not about individual student discipline;

rather, they are about UCF’s discipline of student organizations.

Here, UCF’s student organizations are not subject to UCF’s “internal rules of conduct

applicable to students.” See UCF Regulation 5.007(1)(a) (“UCF Rules of Conduct shall apply to all

undergraduate students, graduate students and students pursuing professional studies . . .”); see also

UCF Regulations 5.007 – 5.009. Instead, the organizations are subject to a completely separate UCF

“Organizational Rules of Conduct”10

and a completely separate set of rules of disciplinary procedure.

UCF Regulation 5.011(1)(a) (“The organizational conduct regulations (UCF - 5.011, 5.012, and 5.013)

shall apply to all student organizations of the University . . .”).

When faced with the exact question presented in the present case: Are documents discussed

during the university disciplinary hearings of student organizations—in an “Organization Court”—

covered by FERPA?, the Georgia Supreme Court answered negatively:

[W]e do not believe the documents sought are "education records" within

the meaning of the Buckley Amendment. The documents at issue involve

charges of violations of University rules and regulations — specifically, in

this case, hazing charges — against social fraternities . . . the records are

not of the type the Buckley Amendment is intended to protect, i.e., those

relating to individual student academic performance, financial aid, or

scholastic probation.

10 UCF Regulation 5.011(1)(b).

of 30

Red & Black, 427 S.E.2d at 261 (affirming judgment that Organization Court records are subject to the

Open Records Act; reversing judgment that the hearings of the Organization Court are not subject to

the Open Meetings Act and can be held in secret) (footnotes and citations omitted).

Finally, even if FERPA did close to the public Student Conduct Board hearings concerning the

discipline of student organizations, UCF has apparently and repeatedly violated this fictitious

prohibition by requiring the “student organization’s chief officer” to attend the hearings. UCF

Regulation 5.013(2)(d). The likelihood the chief officer is among the possibly many students whose

“education records” are supposedly discussed diminishes dramatically as the size of the organization’s

membership increases; and he or she certainly isn’t all the members. Even if the organization has just

two members, the officer has a 50% chance of observing supposedly secret information. So, by

Defendants’ logic, the chief officer also should be excluded from Student Conduct Board hearings.

Such an absurd result would be wholly lacking in due process for the charged student organization and

underscores the tenuousness of Defendants’ argument.

Accordingly, the records discussed during the Student Conduct Board hearings concerning the

discipline of student organizations are not “education records” as defined by FERPA, which itself is not

an exemption to Florida’s Sunshine Law. As a result, UCF’s Student Conduct Board hearings on

organizational discipline are subject to the Sunshine Law. Plaintiff’s Counts XV, XVI and XVIII state

claims for which relief can be granted, and Defendant’s Motion should be denied.

c. UCF’s Student Conduct Board must keep minutes of its “deliberations”

The Student Conduct Board doesn’t take minutes for the entirety of its hearings concerning both

individual student and organizational misconduct. Its deliberations are held in “executive session,” and

the deliberations are not minuted, unlike the rest of the hearing. [See, e.g., Complaint, ¶¶ 84-85, 93, 95-

96, 107, 109, 127-129, 135, 137, 272-280, Ex. 27; see also UCF Regulations 5.009(3)(c)(10),

5.013(3)(c)(10).] But the Sunshine Law requires that the minutes of any board subject to the law “shall

be promptly recorded, and such records shall be open to public inspection.” Fla. Stat. § 286.011. No

provision is made for confidential deliberations or an “executive session.” See id. Moreover, Fla. BOG

Regulation 6.0105(1)(j) requires “an accurate and complete record of each disciplinary proceeding to

be made and preserved.” Obviously, minutes in which a board’s decision-making deliberations are not

recorded cannot be “accurate and complete.”

Therefore, if the Court finds that the Student Conduct Board is subject to the Sunshine Law, the

Board clearly cannot then retire for “executive session;” it must take minutes of its deliberations.

of 30

Accordingly, Plaintiff’s Count XIV for an injunction requiring UCF to take minutes of the deliberations

of its Student Conduct Board hearings states a claim for which this Court can grant relief. Defendants’

Motion should be denied.

II. UCF Must Produce Within ‘the Limited Reasonable Time” Requested Public Records,

State the Basis for Redactions From Produced Records and Cease Its Overbroad

Assertions of FERPA Confidentiality

a. Introduction

Defendants’ Motion asserts various unsworn factual allegations that cannot be the basis for any

ruling on the motions currently under consideration. For instance, Defendants’ state that certain

requested records are “ready for inspection” [Motion, at 16, 18], that defense counsel has—after the

lawsuit was filed—requested clarification of Plaintiff’s requests [Id., at 17], that UCF had directed

Plaintiff to a so-called designated records custodian [Id., at 18], and that Plaintiff “does not (and cannot

in good faith)” deny certain allegations made in their Motion. [Id., at 17, 18, 19.] Obviously,

Defendants’ claims lie outside the four corners of the Complaint and cannot be considered for purposes

of a motion to dismiss, where the Plaintiff’s allegations must be deemed true. Connolly, 89 So. 2d at

484. Additionally, to the extent Defendants’ alternatively seek summary judgment, their allegations are

unverified and therefore do not constitute “materials as would be admissible in evidence” upon which a

summary judgment can be based. Fla. R. Civ. P. 1.510(c). Accordingly, all that remains for the Court’s

consideration is whether Plaintiff’s Complaint states valid claims for relief under the Florida’s Public

Records Act.

Florida law provides the public a broad right of access to the records of state government. FLA.

CONST., Art. I, sec. 24. For instance, section 119.011, Florida Statutes, defines "public records" which

are open to inspection as "all documents, papers, letters, maps, books, tapes, photographs, films, sound

recordings or other material, regardless of physical form or characteristics, made or received pursuant

to law or ordinance or in connection with the transaction of official business of any agency." Public

records are open for public inspection unless exempted from disclosure by the Legislature. Wait v.

Florida Power & Light Co., 372 So. 2d 420 (Fla. 1979).

Anyone denied the right to inspect a public record may bring a civil action to enforce the right. .

To state a claim under the Act, Plaintiff must allege it made a request for public records and that

records were unlawfully withheld. See Fla. Stat. § 119.12. If the petition states a prima facie claim for

relief, an order to show cause must be issued so that the claim can receive further consideration on the

merits. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v.

of 30

Austin, 605 So. 2d 1266 (Fla. 1992); see also Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005)

(dismissal of complaint for writ of mandamus erroneous because trial court did not issue a show cause

order to Defendants and Defendants presented no sworn evidence refuting Plaintiff’s allegations);

Grace v. Jenne, 855 So. 2d 262, 263 (Fla. 4th DCA 2003) (dismissal of public records complaint

reversed for lack of evidentiary hearing).

b. UCF Unlawfully Refused to Produce Records and Produce Them Within the “Limited

Reasonable Time”

i. Records Unlawfully Withheld by UCF

1. Passing the Gavel Expense Report

Plaintiff’s Complaint, in Count IV, alleges that UCF failed to produce a requested “Passing the

Gavel” expense report and failed to state any exemptions to the production of the record. Plaintiff

requested information concerning the expenses on April 10, 2012 [Complaint, at ¶ 47, Ex. 16], and

UCF responded on the next day. [Complaint, at ¶ 48, Ex. 17.] On April 12, 2012, UCF notified Plaintiff

that it had “compiled the expenses for Passing of the Gavel and Grant Heston has the information ready

for you . . .” [Complaint, at ¶ 49, Ex. 10.] Plaintiff then asked if UCF could produce the records via e-

mail; UCF did not respond to the request or e-mail the records. [Complaint, at ¶ 50, Ex. 10, 18.]

Plaintiff twice reiterated its request for “PDFs of the . . . expense report from Passing of the Gavel” on

April 16, 2012. [Complaint, at ¶ 51, Ex. 11.] Mr. Heston responded that he “would look into this” the

next day. [Complaint, at ¶ 52, Ex. 11.] UCF, however, never again communicated with Plaintiff about

the request, despite Plaintiff’s final, April 19, 2012, reminder. [Complaint, at ¶ 51, Ex. 12.]

Defendants make two, contradictory claims: first, that Plaintiff merely asked a question about

an event and, second, that the records requested by Plaintiff are “ready for inspection.” [Motion, at 16

(citing Complaint, at Ex. 10).] Setting aside this dissonance, the record shows that UCF directed

Plaintiff to Mr. Heston for the records, and Mr. Heston repeatedly failed to respond to Plaintiff’s

inquiries about obtaining copies those records. Had UCF intended for Plaintiff to inspect the records on

campus, it should have said so. Meanwhile, Plaintiff need not beg a state agency to produce a record.

Indeed, it is the responsibility of the agency, not the requestor, to follow up on records requests. See

Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991); see also Office of

State Attorney v. Gonzalez, 953 So. 2d 759, 765 (Fla. 2d DCA 2007) (“we decline to engraft upon the

statute an additional obligation for a plaintiff to make repeated requests before filing suit to enforce his

public records rights”).

of 30

Finally, an agency must provide a copy of the record in the medium requested if the agency

maintains the record in that medium. Fla. Stat. § 119.02(2)(f). Therefore, if UCF keeps the requested

record in electronic form, as it suggested in Exhibit 10, it must provide an electronic copy, and it may

do so via electronic mail just like it did in many other instances described in the Complaint. See Fla.

Stat. § 119.07(2)(a) (“a custodian of public records may provide access to public records by remote

electronic means”); Schwartzmann v. Merrit Island Volunteer Fire Dept., 352 So. 2d 1230, 1232 n. 2

(Fla. 4th DCA 1977) (custodian must make copies); Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1

st

DCA 1991) (custodian must furnish copies by mail).

Therefore, Plaintiff’s Count IV states a claim for which this Court can grant relief. Defendants’


2. Homecoming 2012 Contracts

Plaintiff’s Complaint, in Count V, alleges that UCF failed to produce requested “Homecoming

2012 Contracts” and failed to state any exemptions to the production of the records. On September 18,

2012, Plaintiff requested from UCF “two documents” concerning UCF’s Homecoming concert and

comedy night, “specifically . . . the document listing the performer(s) of each event . . . a single

document from each event which specifically lists the performers, such as a contractual agreement . . .

or a performing list.” [Complaint, at ¶ 61, Ex. 19.] Defendant responded that day, expressly refusing to

produce the records unless Plaintiff “could provide me with a reasoning for the request.” [Id.11

]

Defendants have yet to release these records or explain the statutory basis for withholding them.

Defendants, however, label this claim “frivolous” because, they allege, UCF produced the

requested records. [Motion, at 17 (citing Complaint, at Ex. 21).]. However, Exhibit 21 clearly is not a

contract identifying performers or a list of performers, as sought in Plaintiff’s request. [Complaint, at

Ex. 21.] Rather it is an e-mail setting forth a list of Homecoming-related events. [Id.] Ironically, that e-

mail expressly acknowledges the existence UCF’s “contract” with rapper Snoop Dogg. [Id.]

Defendants also somehow label the records it claims to have produced as “unidentified.”

[Motion, at 18.] Notwithstanding the fact this claim is refuted by record evidence [Complaint, at ¶ 61,

11 The motive underling a request for public records is irrelevant. See Curry v. State, 811 So. 2d 736, 742 (Fla. 4th

DCA 2002 (“The motivation of the person seeking the records does not impact the person’s right to see them under the

Public Records Act); Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885, 886 n. 3 (Fla. 3d DCA 2005)

(same); Staton v. McMillan, 597 So. 2d 1266 (Fla. 1992) (same); Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985),

review denied, 475 So. 2d 695 (Fla. 1985) (same); News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (same).

of 30

Ex. 19], if a public records request is insufficient to identify the records sought, the agency has an

affirmative duty to promptly notify the requestor that more information is needed to produce the

records. Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991). Defendants

did not do so here. Further, it is the responsibility of the agency, not the requestor, to follow up on

records requests. Id.

Therefore, Plaintiff’s Count V states a claim for which this Court can grant relief. Defendants’


3. Speaker’s Contract

Plaintiff’s Complaint, in Count VII, alleges that UCF failed to produce a requested “Speaker’s

Contract” and failed to state any exemptions to the production of the records. On February 5, 2013, a

Knight News reporter requested from UCF’s Office of Fraternity and Sorority Life a contract between

the University and T.J. Sullivan, of CampusSpeak. [Complaint, at ¶ 111.] UCF asked why the editor

needed the contract, and editor refused to provide a reason. [Id., ai ¶ 112.] Ultimately, the editor was

told that UCF was “not allowed to give out their contracts,” and “we are not giving you the contract.”

[Id., at ¶¶ 113-14.] To date, Defendants have not produced the requested record. [Id., at ¶ 115.]

Defendants claim, contrary to undisputed evidence, that the Knight News editor was directed to

“the designated records custodian, UCF’s News and Information Department, to obtain a copy of the

referenced contract” and that the records are “assembled and (still) available.” [Motion, at 18.] This

claim is unsupported by record evidence. Nonetheless, if Office of Fraternity and Sorority Life had

custody of the record, it was required to release it. See Puls v. City of Port St. Lucie, 678 So. 2d 514

(Fla. 4th

DCA 1996) (“[e]very person who has custody of a public record” has a “duty of disclosure.”)

(emphasis in original); Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (all

personal with the power to release or communicate records is a records custodian). Indeed, UCF Policy

No. 2-100.2, “Florida Public Records Act—Scope and Compliance,” provides, among other things, that

“[a]ny [UCF] department or office may be the recipient of a public records request;” “[i]f the

department or office receiving the request is not the custodian of the records requested, then the request

(or, if feasible, the requestor) should be forwarded to the appropriate department or office in possession

or custody of the requested records;” and “[t]there is no particular format for a public records request . .

. A person does not have to prove a "legitimate" need for a public record to be entitled to inspect it.”

[Complaint, ¶ 9.]

Therefore, Plaintiff’s Count VII states a claim for which this Court can grant relief. Defendants’

of 30


ii. Records Not Produced by UCF within the “Limited Reasonable Time”

The Public Records Act contains no specific deadline within which a state agency must respond

to records requests. However, the Florida Supreme Court has explained that the only delay permitted is

“the limited reasonable time allowed the custodian to retrieve the record and delete those portions of

the record the custodian asserts are exempt.” Tribune Company v. Cannella, 458 So. 2d 1075, 1078

(Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985).

Where delay is alleged, the trial court must conduct a hearing to determine whether the delay

was reasonable under the circumstances. See Johnson v. Jarvis, 74 So. 3d 168, 170 (Fla. 1st DCA

2011). An unjustified delay in producing records constitutes an unlawful refusal to provide access to

the records. Hewlings v. Orange Co., 87 So. 3d 839 (Fla. 5th DCA 2012).

1. Reports of Elections Violations

Plaintiff’s Complaint, in Counts II, IX, X and XII, alleges, inter alia, that UCF failed to produce

to Knight News certain reports of elections violations in the limited reasonable time. On March 30,

2012, Plaintiff requested from UCF copies of affidavits alleging violations of SGA election rules.

[Complaint, Ex. 3.] UCF acknowledged the request on April 2, 2012. [Id., Ex. 4.] Later that day, UCF

asked Knight News to complete an “official public records request form.” [Id., Ex. 5-6.] Though

Plaintiff lawfully refused to complete the form, another news organization apparently later did and

received the requested the records on that same day, when the records were to be discussed at a hearing.

[Id., at ¶ 22-27.] UCF even refused to produce the records to Knight News at the hearing at which they

were discussed. [Id., at ¶ 26.] Ultimately, UCF finally produced the requested records in a redacted

manner on April 4, 2012, two days after the hearing at which they were relevant.

Defendants claim that, “Plaintiff cannot show that the University has . . . engaged in

unreasonable and excessive delays in producing public records” because UCF “fulfilled the request . . .

just 3 business days after it was submitted” and because UCF’s records custodian had gone home

already on the date of the April 2, 2012 hearing. [Motion, at 21, 23.]

Of course, as discussed above, “unreasonable and excessive delays” is not the standard

governing this action. Rather UCF must produce requested records in “the limited reasonable time

allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts

are exempt.” Tribune Company, 458 So. 2d at 107.

Indeed, Plaintiff’s Complaint, as described above, is clear in its allegations that UCF produced

of 30

the records requested by Knight News to another news organization that had requested the same

records on the same day. Additionally, the requested records were in the possession of several UCF and

SGA officials at the April 2, 2012 hearing where the request was reiterated. If the requested records

could be distributed to participants in the April 2, 2012 hearing and produced to another news

organization on the same day, surely UCF can also make a copy for Knight News, which requested the

records before the other news organization. Ultimately, UCF produced the records to Plaintiff two days

after the hearing at which they were relevant—decisions had already been made. Under these

circumstances, UCF failed to produce the records in the “limited reasonable time” as required by law.

Therefore, Plaintiff’s Count Counts II, IX, X and XII state claims for which this Court can grant

relief. Defendants’ Motion should be denied.

2. A&S Budget Request Packets

Plaintiff’s Complaint, in Counts III, IX, and XII, alleges that UCF failed to UCF failed to

produce requested A&S Fee Budget Request Packets in the limited reasonable time. On April 9, 2012,

Knight News requested from UCF eight specific packets. [Complaint, Ex. 8.] UCF acknowledged the

request the same day. [Id., Ex. 9.]. On April 12, 2012, the date of a hearing at which the requests were

to be approved, UCF responded that “Grant [Heston] also has available the PDFs of the A&SF budget

packets . . .“ [Id., Ex. 10.] However, the electronic packets were not attached to the electronic mail, and

the hearing at which an $18.9 million A&S Fee budget was discussed occurred and resulted in the

budget’s approval. Ultimately, and despite multiple additional requests for electronic production of the

electronic documents (the PDFs), UCF failed to produce the packets until twelve days after the budget

was approved. [Id., at ¶ 35-41.]


unreasonable and excessive delays in producing public records” because UCF “fulfilled the request by

assembling the records and informing Plaintiff that the requested packets were available for inspection

at the designated records custodian’s office, but instead” Knight News asked for them to be provided by

e-mail. [Motion, at 21-23.]





Indeed, Plaintiff’s Complaint, as described above, is clear in its allegations that the requested

of 30

records were in the possession of several UCF and SGA officials at the April 12, 2012 meeting where

the budget was approved. If the requested records could be distributed to participants in the April 12,

2012 meeting, surely UCF could have made a copy for Knight News. Ultimately, UCF produced the

records to Plaintiff twelve days after the meeting at which they were relevant—decisions had already

been made. Under these circumstances, UCF failed to produce the records in the “limited reasonable

time” as required by law.

Additionally, an agency must provide a copy of the record in the medium requested if the

agency maintains the record in that medium. Fla. Stat. § 119.02(2)(f). Therefore, if UCF keeps the

requested record in electronic form—namely, the PDFs identified Exhibit 10 to the Complaint—it must

provide an electronic copy, and it may do so via electronic mail just like it did in many other instances

described in the Complaint. See Fla. Stat. § 119.07(2)(a) (“a custodian of public records may provide

access to public records by remote electronic means”); Schwartzmann v. Merrit Island Volunteer Fire

Dept., 352 So. 2d 1230, 1232 n. 2 (Fla. 4th

DCA 1977) (custodian must make copies); Wootton v. Cook,

590 So. 2d 1039, 1040 (Fla. 1st DCA 1991) (custodian must furnish copies by mail).

Therefore, Plaintiff’s Counts III, IX, and XII state claims for which this Court can grant relief.

Defendants’ Motion should be denied.

3. Hazing Records

Plaintiff’s Complaint, in Counts VI, IX, X, XII and XIII, alleges, inter alia, that UCF failed to

produce requested records related to hazing allegations within the limited reasonable time. On

November 21, 2012, Knight News requested from UCF a variety of hazing-related records in advance

of a December 11, 2012 hazing-related hearing. [Complaint, at ¶ 72.] From November 26, 2012

through December 10, 2012, UCF and Knight News engaged in a series of correspondence whereby

Knight News narrowed its requests and UCF produced some records. [Id., at ¶ 73-75.12

] However, at

the close of business on December 10, 2012, UCF demanded payment for production of the remainder

of the documents relevant to the next-day’s hearing, thereby delaying production of the documents until

after the hearing.


unreasonable and excessive delays in producing public records” because UCF fulfilled the request “on

12 Defendant characterizes the request as “overbroad,” however, there is no such thing as an overbroad public records request. See Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA, review denied, 475 So. 2d 695 (Fla. 1985) (the “breadth of

such right [to access public records] is virtually unfettered . . .”).

of 30

November 28th

, December 7th and December 10

th. [Motion, at 22-23.]





Indeed, Plaintiff’s Complaint, as described above, is clear in its allegations that UCF withheld

even an estimate for the costs of production of the remaining requested documents until such time as

Knight News could not pay—and UCF could not comply with the request—in advance of the hearing.

Under these circumstances, UCF failed to produce the records in the “limited reasonable time” as

required by law.

Therefore, Plaintiff’s Counts VI, IX, X, XII and XIII state claims for which this Court can grant

relief. Defendants’ Motion should be denied.

c. UCF Unlawfully Failed to State Exemptions Justifying Redactions to Produced Records

Plaintiff’s Complaint, in Counts I (Impeachment Affidavits), II (Elections Violations

Affidavits), III (A&S Fee Budget Request Packets), IV (Passing the Gavel Expense Report), V

(Homecoming 2012 Contracts), VI (Hazing Incident Reports), and VII (Speaker’s Contract), alleges

that UCF failed to “state the basis of” exemptions to the production of records and failed to “state in

writing and with particularity the reasons for [UCF’s] conclusion the record is exempt of confidential.”

Defendants concede their “omission of written redaction specifications” [Motion, at 20]—as

they must, given the unexplained redactions evident in the Complaint’s exhibits. UCF however claims,

in the absence of record evidence and only after this lawsuit was filed, that Plaintiff somehow knew

that “all redactions made by the University are pursuant to FERPA” based in part on information set

forth on a so-called SGA Public Records Request Form. [Motion, at 19-20; see also Complaint, at Ex.

6.] Defendants also make the unsupported claim that Plaintiff “repeatedly waived the requirement of

written specifications for the plethora13

of records requests it has served the University.” [Motion, at

20.] These are not valid defenses.

Of course, UCF cannot know whether exemptions, if any, apply to the production of a requested

13 The quantity of Plaintiff records requests to UCF s irrelevant. See Salvadore v. City of Stuart, no. 91-812 CA (Fla.

19th Cir. Ct. December 17, 1991) (“even though a public agency may believe that a person or group are fanatics, harassers

or are extremely annoying, the public records are available to all of the citizens of the state of Florida”); Curry v. State, 811 So. 2d 736, 741 (Fla. 4th DCA 2002) (defendant had “legitimate purpose” in making more than 40 public records requests).

of 30

record without having first inspected the record. The Public Records Law makes no provision for

preemptive, non-specific and blanket statements of exemption such as those purportedly set forth in the

SGA Public Records Request Form. Defendants misplace reliance upon both the student government

form and Plaintiff’s apparent abilities to divine the legal basis for a redaction from the redaction itself,

that is, a black mark on a document.

The law also makes no provision for Defendants’ unsupported claim of waiver. If the custodian

of a public record asserts any part of a requested record is exempted from disclosure, the custodian

must state the basis for the exemption. Fla. Stat. § 11.07(1)(e). Additionally, upon request, the custodian

also must state in writing and with particularity the reasons the record is exempt. Fla. Stat. §

119.07(1)(f). These duties are mandatory; Plaintiff is not required to object if Defendants fail. See

Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000) (response that all records were produced except

exempt victim information was inadequate because it “failed to identify with specificity either the

reasons why records were deemed to be exempt, or the statutory basis for any exemption”); Langlois v.

City of Deerfield Beach, Fla., 370 F. Supp. 1233 (S.D. Fla. 2005) (rejection of records request unlawful

for failure to give statutory reason for exemption); Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th

Cir. Ct. December 17, 1991) (it is the responsibility of the agency, not the requestor, to follow up on

records requests).

Therefore, Plaintiff’s Counts I, II, III, IV, V, VI and VII state claims for which this Court can

grant relief. Defendants’ Motion should be denied.

d. FERPA Does Not Justify UCF’s Redactions from the Produced Records

i. Introduction

Defendant bears the burden of proving up any statutory exemptions to disclosure of public

records. See, e.g., Wooling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So.

2d 1186 (Fla. 2001).14

Any doubt as to whether an exemption applies should be resolved in favor of

disclosure. Tribune Company v. Public Records, 492 So, 2d 480, 483 (Fla. 2d DCA 1986). And, if the

records have already been disclosed to the public, the records cannot be later withheld. Downs v.

Austin, 522 So, 2d 931, 935 (Fla. 1st DCA 1988).

Though, as discussed above, Defendant already have failed to state exemptions as required, they

14 Notably, an exemption to disclosure of non-confidential public records does not prohibit the disclosure of the records. See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla.

1991).

of 30

now claim their redactions are “plainly relate[d] to student information protected from disclosure by

Florida and federal law.” [Motion, at 19.] This belated and non-specific claim, however, is insufficient

to satisfy UCF’s duties under the Public Records Law. See Weeks v. Golden, 764 So. 2d 633 (Fla. 1st

DCA 2000) (response that all records were produced except exempt victim information was inadequate

because it “failed to identify with specificity either the reasons why records were deemed to be exempt,

or the statutory basis for any exemption”)

FERPA itself “does not prohibit disclosure of records.” Red & Black Pub. Co. 427 S.E.2d at

261. Florida law, however, does exempt from disclosure and make confidential certain individual

student education records as those education records are defined by FERPA. Fla. Stat. § 1002.221(1).

Records are only covered by FERPA if they are “directly related to a student.” National Collegiate

Athletic Association v. Associated Press, 18 So. 3d 1201, 1211 (Fla. 1st DCA 2009).

None of records at issue here are education records directly related to students, therefore the

exemption is inapplicable.

ii. Impeachment Affidavits, Election Violations Affidavits and Budget Requests

Defendants concede they produced records of UCF’s Student Government Association

(“SGA”) in a redacted manner. [Motion, at 20.] Specifically, UCF redacted from produced

impeachment affidavits [Complaint, Ex. 2], election violation affidavits [Id., Ex. 7] and A&S Fee

Budget requests. [Id., Ex. 13, 15.]

The impeachment affidavits, both dated February 2, 2012, appear to challenge conduct of a

SGA official during an Activity & Service Fee Committee meeting where the Committee did not hear a

budget request made by the Graduate Student Assembly. The Committee’s meetings are open to the

public, minuted and conducted by individuals acting in their capacities as public officers, not as

students. Nonetheless, the produced documents are replete with unexplained redactions. [Id., Ex. 2]

The election violation affidavits are dated March 28 and 29, 2012 and appear to challenge

conduct of one or more individuals connected to one or more campaigns for SGA elected offices. The

produced documents are replete with unexplained redactions. [Id., Ex. 7]

The budget request packets (not addressed in Defendants’ Motion) were produced by UCF in

two batches. [See id., Ex. 13, 15.] In the first batch, the name and title of one person who clearly is a

SGA officer is redacted, while 14 other students’ names and their titles are not redacted. In the second

batch, another student’s name and title are redacted seven times; the name and job title of a $24,650 per

year employee are redacted from a staff request form and two expenditure forms are redacted. None of

of 30

these redactions are explained, nor could they be. The records are not exempt.

Records of SGA, which is in charge of a $18.9 million budget comprised of public funds, [Id.,

at ¶ 11] simply are not protected by FERPA even if they do name a student. (Indeed, students names

appear throughout the exhibits attached to the Complaint as well as on UCF Web sites.) These

individuals are either publically campaigning for elected office or fulfilling their duties in public office,

conducting the business of the university and its student body.

In a similar situation concerning video of student government meetings, the trial court in

Bracco v. Machen, 01-2009-CA-4444 (Fla. 8th Jud. Cir., Jan 10, 2011), explained that

[i]t is inconsistent for the Defendant to release certain student government

records and records of student organizations, including identifying

individual student names, student statements, and images of students

related to the University of Florida Student Senate meetings, while

holding that video recordings of the same student senate meetings are

exempt from disclosure under FERPA because such recordings contain

“images of students” or “student names” or “statements made by and or

about any student.

The Senate meetings were open meetings which any member of the public

could attend in person. While the videos depict students discussing student

and University business, the record does not reflect that the proceedings

relate directly to an identified student. Rather, the proceedings relate

generally to topics of importance to students and may identify specific

students, but not as a focus of the record. Moreover, because the meeting

itself was open, it is hardly logical that a memorialization of it would be

confidential.

Therefore, SGA’s records are not covered by FERPA. Plaintiff’s Counts I, II and III state claims

for which this Court can grant relief. Defendants’ Motion should be denied.

iii. Hazing Records

Defendants concede they produced hazing-related records in a redacted manner. [Motion, at 20.]

Specifically, UCF redacted from three hazing incident reports. [Complaint, Ex. 22, 25.]

In the first hazing incident report, UCF redacted the e-mail address, telephone number and

address of David Stollman, of CampusSpeak. [Id., Ex. 22.] In the document, Stollman reports that he

“received information from someone who doesn’t want to come forward” concerning hazing at a UCF

fraternity. [Id., Ex. 22.] Stollman is not a UCF student, employee or parent; he was hired to speak to

UCF’s Greek community about fighting apathy and risk management. [Id., at ¶ 111.]

Of course, information concerning an individual who is not a UCF student does not “directly

of 30

relate to a student” and therefore is not covered by FERPA. See National Collegiate Athletic

Association v. Associated Press, 18 So. 3d 1201, 1211 (Fla. 1st DCA 2009). Indeed, on April 8, 2013,

after the filing of this lawsuit, Defendants’ counsel produced to the undersigned this incident report in

an unredacted manner. [Affidavit of Justin Hemlepp, Comp. Ex. A.] In the accompanying

correspondence, Defendant’s counsel stated he “wanted to ensure that your client has received a copy

of the attached incident reporting form with Mr. Stollman’s contact information unredacted,”

conclusively demonstrating that the previously redacted information is not covered by FERPA. [Id.]

In the second and third hazing incident reports, UCF redacted what appears to be the name and

contact information of a UCF student’s parent, the student’s name and the name of an organization of

which the author is a “former President.” [Complaint, Ex. 25.] Both appear to relate to the same

incidents, alleged hazing at Mu Sigma Upsilon sorority.

As a preliminary matter, the name of an organization of which the report’s author is a “former

President” does not “directly relate to a student” and therefore is not covered by FERPA. See National

Collegiate Athletic Association, 18 So. 3d at 1211. Additionally, the name and contact information of

individuals making complaints about organizations also are not “directly related to a student” and not

covered by FERPA. See id. (transcript of NCAA hearing and committee response pertained to

accusations of misconduct against the athletic department and, thus, were only tangentially related to

students); Rhea v. District Board of Trustees of Santa Fe College, 37 F.L.W. D1722, 1724 (Fla. 1st DCA

2012) (student e-mail criticizing professor not an education record because it does not contain

information directly related to a student; e-mail, including student’s name, had to be released).

Therefore, the hazing records are not covered by FERPA. Plaintiff’s Count VI states a claim for

which this Court can grant relief. Defendants’ Motion should be denied.

III. Injunctive Relief Is an Appropriate Remedy in Open Government Actions

Knight News seeks injunctive relief requiring UCF to do five things: 1) when responding to

future public records requests from Knight News, state the basis of exemptions it claims are applicable

to the production of public records and the reason the records are confidential, [Complaint, Ct. XI]; 2)

produce public records requested by Knight News in a timely fashion, [Complaint, Ct. XII]; 3) treat

Knight News equally to other requestors of public records, specifically, by producing to Knight News

records in a timely fashion and not after production of the same records to another requestor whose

request postdates Knight News’s request, [Complaint, Ct. XIII]; 4) keep minutes of the deliberations of

all Student Conduct Board hearings, [Complaint, Ct. XIV]; and, 5) open to the public Student Conduct

of 30

Board hearings concerning discipline of student organizations. [Complaint, Ct. XVIII.]

Defendants seek dismissal of Plaintiff’s claims for injunctive relief because, first, they allege,

the claims seek relief concerning future events; second, the sought injunction is “an extraordinary

remedy, harsh and drastic;” third, the court would be required to supervise Defendants’ performance;

and, fourth, there has been “no ‘showing of likelihood of future violations’ by the University.” [Motion,

at 23-24 (quoting First Nat’l Bank in St. Petersburg v. Ferris, 156 So. 2d 421, 423 (Fla. 2d DCA 1963);

Daniels v. Bryson, 548 So. 2d 679, 680-81 (Fla. 3d DCA 1989).]

However, the purpose of an injunction is precisely to control future events, and the relief sought

can be supervised by the Court upon Plaintiff’s motion for supplemental or post-judgment relief. In

fact, authority cited by the Defendants makes plain that injunctive relief is proper upon an appropriate

showing of a violation of the Public Records Act coupled with a showing of likelihood of future

violations. See Daniels, 548 So. 2d at 679 (injunctive relief is appropriate where there is a

demonstrated pattern of noncompliance with the Public Records Act, together with a showing of

likelihood of future violations; mandamus would not be an adequate remedy since mandamus would

not prevent future harm); see also Fla. Stat. § 266.011(2) ("The circuit courts of this state shall have

jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen

of this state."); see also Doran, 224 So. 2d at 697 (affirming injunction enjoining board from violating

the Sunshine Law).

Here, Knight News’s Complaint does allege, and the record evidence supports, UCF’s

demonstrated pattern of systematic noncompliance with both the Public Records Act and Sunshine Law

and, in light of UCF’s regulations, policies, and positions taken herein, a likelihood that UCF will

commit future violations.

Accordingly, Knight News’s Complaint states in Counts XI, XII, XIII, XIV and XVIII valid

claims for permanent mandatory injunctions for which this Court can grant relief, and therefore

Defendants’ Motion should be denied.

IV. UCF’s President is a Proper Defendant

Plaintiff brings its claims in this action versus both Defendant UCF BOARD OF TRUSTEES

and Defendant HITT, in his capacity as UCF’s president, because both have control over and custody of

the public records at issue in this action as well as control over public access to the outside-of-the-

Sunshine meetings at issue in this action. Nonetheless, Defendants seek dismissal, with prejudice, of

the “harassing,” “over-reaching and meritless” claims against Defendant HITT because, first, Knight

of 30

News’s claims “make identical allegations against” and “seek identical relief from” both Defendants;

second, Defendant HITT has been sued in his official capacity;15

third, Defendant UCF BOARD OF

TRUSTEES has the power to be sued; fourth, Defendant HITT would be bound by any judgment

against Defendant UCF BOARD OF TRUSTEES; and, fifth, because the Complaint’s allegations are

“redundant.” [Motion, at 6-9.16

] Dismissal is not appropriate here.

As a threshold matter, Rule 1.250(a), Florida Rules of Civil Procedure, is clear: “Misjoinder of

parties is not a ground for dismissal of an action.” Cf. Fla. R. Civ. P. 1.140(b)(7) (providing for

dismissal for the opposite: a plaintiff’s “failure to join indispensable parties”). Additionally, Rule

1.210(a), Florida Rules of Civil Procedure, provides:

15 Defendants discuss at length several federal court decisions expressing disfavor of “official capacity” suits. [Motion, at 8-9.] Undoubtedly, the federal authorities are not binding in this state court action and, further, their holdings are

completely inapplicable to open government actions brought pursuant to Florida law. Indeed, each of the cases cited by the

Defendants concerns a law enforcement officer’s liability for money damages in a federal civil rights action under 42 U.S.C.

§ 1983. See Ky. v. Graham, 473 U.S. 159 (1985) (holding that in a 42 U.S.C. § 1983 action for damages where the defendant

was sued in his personal capacity for money damages, but not sued in his official capacity as commissioner, 42 U.S.C. §

1988 does not allow attorneys’ fees to be recovered by the prevailing plaintiff from the governmental entity he represents).

Bridges v. Seminole Cnty, Fla., No. 6:07-cv-1010-ORL-28DAB, 2008 WL 638330 (M.D. Fla. March 5, 2008) (dismissing

42 U.S.C. § 1983 claim for damages without prejudice where defendants county and county sheriff, in his official capacity,

both were sued for alleged policy failures in hiring and training sheriff’s deputies, but the sheriff is a constitutional officer

independent from the county and plaintiff failed to establish any county policy to the contrary); Megargee v. Wittman, 550 F.

Supp. 2d 1190 (E.D. Cal. 2008) (granting summary judgment to California county sheriff on a 42 U.S.C. § 1983 claim for

damages against him in his official capacity where county also was a named defendant).; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092 (11th Cir. 2005) (affirming judgment on the pleadings granted in favor of

defendant sheriff, sued in his official capacity in a 42 U.S.C. § 1983 claim for damages, where plaintiff could not establish

defendant’s “knowledge” of a possible suicide); Adcock v. Baca, 157 Fed. Appx. 118 (11th Cir. 2005) (“When, as here, the

defendant in a § 1983 civil rights action is the county sheriff, the suit is effectively an action against the governmental entity

he represents. . .”); Mann v. Hillsborough Cnty. Sheriff’s Office, 946 F. Supp. 962 (M.D. Fla 1996) (granting judgment on

the pleadings to defendant sheriff, sued in his official capacity in a 42 U.S.C. § 1983 claim for damages, because though

“there is no need to examine who is the proper party in this case,” plaintiff’s complaint failed to state a valid Section 1983

claim); Taylor v. Dean, No. 5:05-cv-397-Oc-10GRJ, 2006 WL 4756452, at *3 (M.D. Fla. Oct. 25, 2006) (“While the Marion

County Sheriff’s Office is not an entity that can be sued under Florida law [in a 42 U.S.C. § 1983 claim for damages],

court[s] have treated a suit against the sheriff, in his official capacity, as a suit against the county itself.”).

16 Though Defendants’ Motion, at page 6, states that Defendants provided Plaintiff with “case law holding that: 1) Dr.

Hitt is not a proper party-defendant in this case,” Defendants provided no such court decisions. Defendants did, however,

make reference to Section 768.28(9)(a), Florida Statutes, in Exhibit “C” to their Motion. But this section is inapplicable as it

pertains to the state’s waiver of sovereign immunity in negligence actions. (“Waiver of sovereign immunity in tort actions;

recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management

programs.”) And, even if the section did apply, it further states:

The exclusive remedy for injury or damage suffered as a result of an act, event, or

omission of an officer, employee, or agent of the state or any of its subdivisions or

constitutional officers shall be by action against the governmental entity, or the head of

such entity in her or his official capacity, or the constitutional officer of which the officer,

employee, or agent is an employee . . .

(emphasis added).

of 30

[A]ny person may be made a defendant who has or claims an interest

adverse to the plaintiff. Any person may at any time be made a party if that

person's presence is necessary or proper to a complete determination of the

cause. Persons having a united interest may be joined on the same side as

plaintiffs or defendants, and anyone who refuses to join may for such

reason be made a defendant . . .

See also, Fla. R. Civ. P. 1.110(g) (joinder of causes of action).

Here, Defendant HITT is a proper defendant. He serves as both president of UCF and as an ex

officio member and secretary of Defendant UCF BOARD OF TRUSTEES. The Board is an agency of

the State of Florida, is a “part of the executive branch of state government” and is charged with

administering UCF in accordance with Florida law and the regulations promulgated by the state’s

Board of Governors. Fla. Stat. §§ 1001.71(1), 1001.71(3), 1001.706(2). Defendant UCF BOARD OF

TRUSTEES has delegated these powers to Defendant HITT, who administers UCF as its president. In

doing so, Defendant HITT exercises and further delegates the Board’s authority and control over and

custody of the public records and at issue in this action as well as control over public access to the

outside-of-the-Sunshine meetings at issue in this action. For example, Defendant HITT exercised this

authority on June 2, 2009 in his approval of UCF Policy No. 2-100.2, “Florida Public Records Act—

Scope and Compliance.” [Complaint, ¶ 9.]

As a matter of fact, Florida courts routinely adjudicate Public Records Act and Sunshine Law

cases where officials—such as university presidents—are named as defendants alongside other officials

and entities. See, e.g., Marston, 341 So.2d 783 (both president of the University of Florida and student

Honor Court chancellor named as defendants); Occidental Chem. Co. v. Mayo, 351 So.2d 336 (Fla.

1977) (both Florida’s Public Service Commission and its commissioners named as defendants); Wood,

442 So.2d 934 (both president of the University of Florida and faculty committee chairman named as

defendants); Knox v. District School Bd. of Brevard, 821 So. 2d 311 (Fla. 5th DCA, 2002) (both school

board and county school superintendents named as defendants); Cape Publications, Inc. v. City of Palm

Bay, 473 So.2d 222 (Fla. 5th DCA 1985) (both city manager and city named as defendants); Bracco v.

Machen, 01-2009-CA-4444 (Fla. 8th

Jud. Cir., Jan 10, 2011) (both president of the University of

Florida, in his official capacity, and the UF Board of Trustees named as defendants).17

Accordingly, Plaintiff’s allegations against Defendant HITT state claims for which this Court

17 Such suits against university presidents for violations of state open government laws are not limited to Florida. See, e.g., Red & Black, 427 S.E.2d at 263 (reversing dismissal of university president from public records and open meetings

action that also included the board of regents and a university program director as defendants).

of 30

can grant relief, Defendant HITT is a proper defendant to respond to Plaintiff’s claims, and, therefore,

Defendant HITT should not be dismissed from this action. Defendant’s Motion should be denied.

* * *

WHEREFORE, Plaintiff KNIGHT NEWS, INC., respectfully requests that this Court a) enter

an order denying Defendants’ March 13, 2013 Motion to Dismiss and Alternative Motion for Summary

Judgment, b) enter a writ of mandamus requiring UCF to—within 10 days of the Court’s ruling—both

provide Plaintiff with the relief sought in Counts I – VII of the Complaint and answer the remainder

thereof, and c) award to the Plaintiff reasonable costs and attorneys’ fees as well as any other relief

deemed by the Court to be just and proper under the forgoing circumstances.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was filed with the Orange County, Fla.,

Clerk of Court via the Florida Courts eFiling Portal and sent to Rick Mitchell, Esq., GRAYROBINSON,

P.A., 301 E. Pine Street, Suite 1400, Orlando, FL 32801, via hand delivery and e-mail to

[email protected] and [email protected] on this the 10th day of June,

2013.

Respectfully submitted,

J.S. HEMLEPP, P.A.

/s/ Justin S. Hemlepp_________________

Justin S. Hemlepp, Esq.

Fla. Bar No.: 0058991

10906 Sheldon Road

Tampa, FL 33626

Telephone: (813) 438-6103

Facsimile: (800) 351-8262

E-mail: [email protected]

Attorney for Knight News, Inc.