AP v. NCAA 1st DCA Opinion from Westlaw

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Background: News organizations brought action against National Collegiate Athletic Association (NCAA) under public records law, seeking disclosure of documents placed by NCAA on a secure Internet website used by member institutions in resolving NCAA disputes, with those documents consisting of a transcript of NCAA disciplinary proceeding involving state university and the response of the NCAA infractions committee to the university's NCAA appeal. The Circuit Court, Leon County, John C. Cooper, J., 2009 WL 2762352, rendered judgment for news organizations. NCAA appealed.

Holdings: The District Court of Appeal, Padovano, J., held that:
(1) documents were public records;
(2) documents did not qualify as education records under federal Family Educational Rights and Privacy Act (FERPA);
(3) public records law did not violate dormant
Commerce Clause as applied; and
(4) application of public records law did not violate NCAA's right to freedom of association.

Affirmed.

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AP v. NCAA 1st DCA Opinion from Westlaw

  1. 1. Page 118 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201) ternet website used by member institutions in resolving NCAA disputes, with those documents District Court of Appeal of Florida, consisting of a transcript of NCAA disciplinary First District. proceeding involving state university and the re-NATIONAL COLLEGIATE ATHLETIC ASSOCI- sponse of the NCAA infractions committee to the ATION, Appellant, universitys NCAA appeal. The Circuit Court, Leon v. County, John C. Cooper, J., 2009 WL 2762352, The ASSOCIATED PRESS; Cape Publications, rendered judgment for news organizations. NCAA Inc., d/b/a Florida Today; Collier County Publish- appealed. ing LLC, d/b/a Naples Daily News; First Amend-ment Foundation; Florida Press Association; Lake- Holdings: The District Court of Appeal, Padovano, land Ledger Publishing Corporation, d/b/a The J., held that: Ledger; Media General Operations, Inc., d/b/a (1) documents were public records; WFLA-TV, tbo.com, and The Tampa Tribune; (2) documents did not qualify as education records Miami Herald Media Company, d/b/a The Miami under federal Family Educational Rights and Pri- Herald; Morris Publishing Group LLC, d/b/a The vacy Act (FERPA); Florida Times-Union; News-Journal Corporation, (3) public records law did not violate dormantd/b/a Daytona Beach News-Journal; NYT Manage- Commerce Clause as applied; and ment Services Inc., d/b/a The Gainesville Sun and (4) application of public records law did not violate Sarasota Herald-Tribune; Orlando Sentinel Com- NCAAs right to freedom of association. munications Company, d/b/a Orlando Sentinel; Pensacola News Journal, The News-Press and Affirmed.WTLV, divisions of Multimedia Holdings Corpora- West Headnotestion; Scripps Howard Broadcasting Company, d/b/a WPTV-TV; Scripps Treasure Coast Publishing [1] Records 326 50LLC, d/b/a Stuart News, Vero Beach Press Journal, and Ft. Pierce Tribune; Sun Sentinel, Inc., d/b/a 326 RecordsSouth Florida Sun-Sentinel; Tampa Bay Television, 326II Public Access Inc., d/b/a WFTS-TV; Tallahassee Democrat, a di- 326II(B) General Statutory Disclosure Re-vision of Federated Publications, Inc.; WJXX, a di- quirementsvision of Gannett River States Publishing Corpora- 326k50 k. In General; Freedom of Inform-tion; and WTSP, a division of Pacific and Southern ation Laws in General. Most Cited Cases Company, Inc.; Florida State University Board of Florida courts construe the public records law liber- Trustees, T.K. Wetherell and GrayRobinson, P.A., ally in favor of the states policy of open govern- Appellees. ment. Wests F.S.A. § 119.01 et seq. No. 1D09-4385. [2] Records 326 50 Oct. 1, 2009. Rehearing Denied Oct. 12, 2009. 326 Records 326II Public AccessBackground: News organizations brought action 326II(B) General Statutory Disclosure Re-against National Collegiate Athletic Association ( quirementsNCAA) under public records law, seeking disclos- 326k50 k. In General; Freedom of Inform-ure of documents placed by NCAA on a secure In- ation Laws in General. Most Cited Cases © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  2. 2. Page 218 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)If there is any doubt about the application of the appeal within the NCAA. Wests F.S.A. §§ 119.01public records law in a particular case, the doubt is (2)(a), 119.011(12), 119.07(1)(a).resolved in favor of disclosing the documents.Wests F.S.A. § 119.01 et seq. [5] Records 326 54[3] Records 326 54 326 Records 326II Public Access326 Records 326II(B) General Statutory Disclosure Re- 326II Public Access quirements 326II(B) General Statutory Disclosure Re- 326k53 Matters Subject to Disclosure;quirements Exemptions 326k53 Matters Subject to Disclosure; 326k54 k. In General. Most CitedExemptions Cases 326k54 k. In General. Most Cited Term “received” in public records law section de-Cases fining term “public record” refers not only to a situ-Public records law is not limited to paper docu- ation in which a public agent takes physical deliv-ments but applies, as well, to documents that exist ery of a document, but also to one in which a publiconly in digital form. Wests F.S.A. § 119.01(2)(a). agent examines a document residing on a remote computer. Wests F.S.A. §§ 119.01(2)(a), 119.011[4] Records 326 54 (12).326 Records [6] Records 326 54 326II Public Access 326II(B) General Statutory Disclosure Re- 326 Recordsquirements 326II Public Access 326k53 Matters Subject to Disclosure; 326II(B) General Statutory Disclosure Re-Exemptions quirements 326k54 k. In General. Most Cited 326k53 Matters Subject to Disclosure;Cases ExemptionsDocuments placed by National Collegiate Athletic 326k54 k. In General. Most CitedAssociation ( NCAA) on a secure Internet website Casesused by member institutions in resolving NCAA A document that is used in the course of publicdisputes, with those documents consisting of a tran- business is a “public record” if it was made by ascript of an NCAA disciplinary proceeding in- public official or if was received by the official; itvolving state university and the response of NCAA is not necessary to also show that the document wasinfractions committee to universitys NCAA appeal, made, partly made, or modified in some way by thewere “public records” under public records law; al- official. Wests F.S.A. § 119.011(12).though documents were prepared and maintainedby a private organization, they were received by [7] Records 326 54agents of a public agency and used in connection 326 Recordswith public business, in that the purpose of the tran- 326II Public Accessscript was to perpetuate the information presented 326II(B) General Statutory Disclosure Re-to the infractions committee in the event the parties quirementswished to appeal the sanction imposed by the com- 326k53 Matters Subject to Disclosure;mittee, and the response was designed to commu- Exemptionsnicate information to the body that would hear the © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  3. 3. Page 318 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201) 326k54 k. In General. Most Cited 326k53 Matters Subject to Disclosure;Cases ExemptionsA public record cannot be transformed into a 326k54 k. In General. Most Citedprivate record merely because an agent of the gov- Casesernment has promised that it will be kept private. Critical question in determining whether a recordWests F.S.A. § 119.011(12). created and maintained by a private organization is subject to disclosure as a public record on an[8] Records 326 54 agency theory is whether the private party is a private agency, person, partnership, corporation, or326 Records business entity acting on behalf of a public agency 326II Public Access that has therefore become an agency under public 326II(B) General Statutory Disclosure Re- records law. Wests F.S.A. § 119.011(2, 12).quirements 326k53 Matters Subject to Disclosure; [11] Records 326 54Exemptions 326k54 k. In General. Most Cited 326 RecordsCases 326II Public AccessA private party cannot render public records ex- 326II(B) General Statutory Disclosure Re-empt from disclosure merely by designating in- quirementsformation it furnishes a governmental agency con- 326k53 Matters Subject to Disclosure;fidential; the right to examine public records is a Exemptionsright belonging to the public, and it cannot be bar- 326k54 k. In General. Most Citedgained away by a representative of the government. CasesWests F.S.A. § 119.011(12). Public records law can be enforced against any per- son who has custody of public records, whether that[9] Records 326 54 person is employed by the public agency creating or receiving the records or not; it makes no differ-326 Records ence that the records in question are in the hands of 326II Public Access a private party. Wests F.S.A. §§ 119.011(12), 326II(B) General Statutory Disclosure Re- 119.07(1)(a).quirements 326k53 Matters Subject to Disclosure; [12] Colleges and Universities 81 9.40Exemptions 326k54 k. In General. Most Cited 81 Colleges and UniversitiesCases 81k9 StudentsIn limited circumstances, a record created and 81k9.40 k. Records, Transcripts and Recom-maintained by a private organization can be subject mendations. Most Cited Casesto disclosure as a public record on an agency the- A record qualifies as an education record under fed-ory. Wests F.S.A. § 119.011(2, 12). eral Family Educational Rights and Privacy Act (FERPA) only if it directly relates to a student.[10] Records 326 54 Family Educational Rights and Privacy Act of 1974, § 513(a), 20 U.S.C.A. § 1232g(a)(4)(A).326 Records 326II Public Access [13] Colleges and Universities 81 9.40 326II(B) General Statutory Disclosure Re-quirements 81 Colleges and Universities © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  4. 4. Page 418 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201) 81k9 Students 83I Power to Regulate in General 81k9.40 k. Records, Transcripts and Recom- 83k11 Powers Remaining in States, and Lim-mendations. Most Cited Cases itations Thereon 83k13.5 k. Local Matters Affecting Com-Records 326 55 merce. Most Cited Cases326 Records Commerce 83 56 326II Public Access 326II(B) General Statutory Disclosure Re- 83 Commercequirements 83II Application to Particular Subjects and 326k53 Matters Subject to Disclosure; Methods of RegulationExemptions 83II(B) Conduct of Business in General 326k55 k. Exemptions or Prohibitions 83k56 k. Regulation and Conduct in Gen-Under Other Laws. Most Cited Cases eral; Particular Businesses. Most Cited CasesDocuments placed by National Collegiate Athletic If a statute directly regulates or discriminatesAssociation ( NCAA) on a secure Internet website against interstate commerce, or if its effect is to fa-used by member institutions in resolving NCAA vor in-state economic interests over out-of-state in-disputes, with those documents consisting of a tran- terests, the court may declare it unconstitutional asscript of an NCAA disciplinary proceeding in- applied under dormant Commerce Clause, withoutvolving state university and the response of NCAA further inquiry; however, if the statute regulatesinfractions committee to universitys NCAA appeal, evenhandedly and if it has only an indirect effect ondid not directly relate to a student and therefore did interstate commerce, the court must determinenot qualify as “education records” under federal whether the states interest is legitimate and, if so,Family Educational Rights and Privacy Act whether the burden on interstate commerce exceeds(FERPA) so as to be exempt from disclosure under the local benefits. U.S.C.A. Const. Art. 1, § 8, cl. 3.Floridas public records law; documents pertainedto allegations of misconduct by the university ath- [15] Commerce 83 82.20letic department and only tangentially related to 83 Commercestudents who benefitted from that misconduct, and 83II Application to Particular Subjects andall student names were redacted from documents. Methods of RegulationFamily Educational Rights and Privacy Act of 83II(K) Miscellaneous Subjects and Regula-1974, § 513(a), 20 U.S.C.A. § 1232g(a)(4)(A); tionsWests F.S.A. §§ 119.01(2)(a), 119.011(12), 119.07 83k82.20 k. Subjects and Regulations in(1)(a), 1006.52(1). General. Most Cited Cases[14] Commerce 83 12 Records 326 5483 Commerce 326 Records 83I Power to Regulate in General 326II Public Access 83k11 Powers Remaining in States, and Lim- 326II(B) General Statutory Disclosure Re-itations Thereon quirements 83k12 k. In General. Most Cited Cases 326k53 Matters Subject to Disclosure;Commerce 83 13.5 Exemptions 326k54 k. In General. Most Cited83 Commerce Cases © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  5. 5. Page 518 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)Application of Floridas public records law to re- ization enjoying the right to freedom of association,quire National Collegiate Athletic Association ( the NCAA did not show an impairment of thatNCAA) to disclose, to news organizations, docu- right. U.S.C.A. Const.Amend. 1; Wests F.S.A. §§ments that NCAA placed on a secure Internet web- 119.01(2)(a), 119.011(12), 119.07(1)(a).site used by member institutions in resolving *1204 Leonard J. Dietzen, III, and Matthew J. Car-NCAA disputes did not violate dormant Commerce son of Rumberger, Kirk & Caldwell, P.A., Talla-Clause, despite claim that NCAA relied heavily on hassee; Linda J. Salfrank of Spencer, Fane, Britt &confidential sources it needed to protect to effect- Browne, Kansas City, MO, for Appellant.ively investigate rule violations; public records lawdid not deal with the subject of commerce at all, ap- Gregg D. Thomas, Carol J. LoCicero, Rachel E. Fu-plication of law did not favor in-state economic in- gate and James J. McGuire of Thomas, LoCicero &terests over out-of-state interests, the law promoted Bralow, PL, Tampa, David S. Bralow of Thomas,a state interest of the highest order, that being a LoCicero & Bralow, PL, New York, NY, for Ap-right guaranteed to members of the public under the pellees The Associated Press, Cape Publications,Florida Constitution, and other states also had Inc., Collier County Publishing LLC, First Amend-broad definitions of public records to include those ment Foundation, Florida Press Association, Lake-documents not in the hands of public agents. land Ledger Publishing Corporation, Media GeneralU.S.C.A. Const. Art. 1, § 8, cl. 3; Wests F.S.A. Operations, Inc., Miami Herald Media Company,Const. Art. 1, § 24(a, c); Wests F.S.A. §§ 119.01 Morris Publishing Group LLC, News-Journal Cor-(2)(a), 119.011(12), 119.07(1)(a). poration, NYT Management Services, Inc., Orlando Sentinel Communications Company, Multimedia[16] Constitutional Law 92 1448 Holdings Corporation, Scripps Howard Broadcast- ing Company, Scripps Treasure Coast Publishing92 Constitutional Law LLC, Sun-Sentinel, Inc., Tampa Bay Television, 92XVI Freedom of Association Inc., Federated Publications, Inc., WJXX, Gannett 92k1448 k. Post-Secondary Institutions. Most River States Publishing Corporation, and WTSP;Cited Cases Betty J. Steffens, General Counsel, Dayton M. Cramer, Deputy General Counsel and Linda C.Records 326 54 Schmidt, Associate General Counsel, Tallahassee,326 Records for Florida State University Board of Trustees and 326II Public Access T.K. Wetherell in his official capacity as President 326II(B) General Statutory Disclosure Re- of Florida State University.quirements Bill McCollum, Attorney General, Alexis Lambert, 326k53 Matters Subject to Disclosure; Deputy General Counsel, Scott D. Makar, SolicitorExemptions General, and Craig D. Feiser, Deputy Solicitor 326k54 k. In General. Most Cited General, Office of the Attorney General, Talla-Cases hassee, for Amicus Curiae Attorney General BillApplication of Floridas public records law to re- McCollum.quire National Collegiate Athletic Association (NCAA) to disclose, to news organizations, docu-ments that NCAA placed on a secure Internet web- PADOVANO, J.site used by member institutions in resolvingNCAA disputes did not violate the NCAAs right to The National Collegiate Athletic Association ap-freedom of association under the First Amendment; peals a final judgment requiring it to disclose cer-although the NCAA was a private voluntary organ- tain documents to The Associated Press and other © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  6. 6. Page 618 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)news organizations joined as plaintiffs in an action the University for the academic misconduct, includ-under Chapter 119, Florida Statutes. We find no er- ing an order that certain athletic victories be va-ror in the decision by the trial court. Accordingly, cated. The report was provided to the University inwe affirm the judgment for the plaintiffs. paper form, and, after the names of the students had been redacted, the report was made public.Records created and maintained by the NCAA arenot generally subject to public disclosure. However, The University then retained the GrayRobinson lawthe documents at issue in this case were examined firm to file an appeal to the NCAA from the penal-by lawyers for a public agency, Florida State Uni- ties imposed by the committee. Because the workversity, and used in the course of the agencys busi- of the committee was done in private, the lawyersness. Because the documents were received in con- had to make an arrangement with the NCAA to ob-nection with the transaction of official business by tain access to the records relevant to the enforce-an agency, they are public records. The NCAA has ment proceeding. The arrangement was as follows.failed to show that an exception applies under state The NCAA put images of the transcript of the Oc-or federal law, and thus the records must be dis- tober 28, 2008 hearing and other records on a se-closed. cure Internet website. Lawyers for GrayRobinson signed a confidentiality agreement with the NCAA promising not to disclose any information they ob- I. tained from the website. The NCAA then gave theThe events leading to the present controversy began lawyers a password they could use to obtain the in-in March 2007, when the *1205 University became formation from the website.aware of allegations that a learning specialist and This is the system the NCAA uses with all of itsan academic tutor had provided improper assistance member institutions. Julie Roe, the Director of En-to a number of students, some of whom were parti- forcement for the NCAA, testified that the systemcipating in athletic programs. The University en- was developed in 2007 as part of an effort to gogaged the services of a private firm to conduct an “paperless.” She referred to the secure website asinternal investigation on its behalf. On February 14, the “custodial website.” Authorized representatives2008, after the completion of a comprehensive self- of member institutions could go to the website toinvestigation of academic misconduct, the Uni- obtain access to information they needed to resolveversity reported its findings to the NCAA. their disputes with the NCAA, and, at the sameSeveral months later, on June 10, 2008, the NCAA time, the NCAA could avoid public disclosure ofissued a notice of allegations to the University. The confidential sources of information used in its in-effect of the notice was to formally initiate a discip- vestigations.linary proceeding regarding the misconduct the After they had signed the confidentiality agreement,University had previously reported to the NCAA. the lawyers at GrayRobinson examined the tran-The University submitted a response to the allega- script of the October 28, 2008 hearing before thetions, and the case was called up for a hearing on Committee on Infractions. The lawyers then usedOctober 28, 2008, before the NCAAs Committee the information in the transcript to prepare the Uni-on Infractions. The transcript of the hearing before versitys appeal to the NCAA. They filed the initialthe committee has not been made public. brief on behalf of the University on April 23, 2009,On March 6, 2009, the NCAAs Committee on In- and the Committee on Infractions filed a written re-fractions issued an infractions report. As a part of sponse on June 2, 2009. The response was submit-the report, the committee imposed penalties against ted to the NCAA as a part of the appeal. It was con- sidered to be the property of the NCAA and it was © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  7. 7. Page 718 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)not disclosed to the public. The issues presented in this appeal are governed by the organic law of the state. The Florida Constitu-The plaintiffs in the present case sought disclosure tion creates a broad right to inspect the records ofof documents in the NCAA disciplinary proceeding any state or local governmental body. Article I, sec-and appeal and, when the request was denied, they tion 24(a) of the Florida Constitution grantsfiled suit under Chapter 119, Florida Statutes “[e]very person ... the right to inspect or copy anyagainst the NCAA, Florida State University, its public record made or received in connection withPresident, and the GrayRobinson law firm. In the the official business of any public body, officer orearly stages of the case, *1206 the NCAA offered employee of the state, or persons acting on their be-to produce the June 2, 2009 response by the Com- half.” The right to inspect a public record in Floridamittee on Infractions. However, the NCAA de- is not one that is merely established by legislation,clined to provide the response in its original format, it is a right demanded by the people.and the document that was given to the plaintiffswas a version of the report that had been retyped by Article I, section 24(c) of the Florida ConstitutionUniversity personnel from the image on the cus- provides that the right to inspect public recordstodial website. The plaintiffs did not regard the re- shall be “self-executing.” Legislation is not re-typed version of the response as compliance with quired to implement the right, but section 24(c) ex-their public records request. pressly grants authority to the Florida Legislature to “enact laws governing the enforcement of this sec-The public records case was tried before the court tion.” The rights created by the constitution may beon August 20, 2009. Two documents were at issue enforced under the procedures in the public recordsin the litigation: the transcript of the October 28, law, Chapter 119, Florida Statutes. The opening2008 hearing before the NCAA Committee on In- sentence of the law declares that “[i]t is the policyfractions and the Committees June 2, 2009 re- in this state that all state, county and municipal re-sponse to the Universitys appeal. The plaintiffs ar- cords are open for personal inspection and copyinggued that both documents were public records. The by any person” and that “[p]roviding access to pub-NCAA argued that the documents were not public lic records is a duty of each agency.”records and, alternatively, that they were exemptunder federal laws protecting student records. [1][2] Florida courts construe the public records law liberally in favor of the states policy of openOn August 28, 2009, the trial court rendered judg- government. See Lightbourne v. McCollum, 969ment for the plaintiffs. In summary, the trial court So.2d 326 (Fla.2007); Wolfson v. State, 344 So.2dconcluded that the transcript and response were 611 (Fla. 2d DCA 1977); Tribune Co. v. In re Pub-public records because they were received by an lic Records, 493 So.2d 480 (Fla. 2d DCA 1986);agency of the state government and that they were City of Riviera Beach v. Barfield, 642 So.2d 1135not exempt under federal laws designed to protect (Fla. 4th DCA 1994). If there is any doubt about thestudents because they did not contain information application of the law in a particular case, the doubtdirectly related to a student. The court ordered the is resolved in favor of disclosing the documents.immediate disclosure of the transcript and response, See Dade County Aviation Consultants v. Knightbut the NCAA appealed to this court, and the judg- Ridder, Inc., 800 So.2d 302 (Fla. 3d DCA 2001).ment by the trial court was stayed pending the dis-position of the appeal. a. II. [3] With these principles in mind, we turn to the first issue in the case, whether *1207 the transcript © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  8. 8. Page 818 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)and response are public records. We begin by ob- term.” Shevin at 640.serving that the public records law is not limited topaper documents but that it applies, as well, to doc- [4] Based on these authorities, we conclude that theuments that exist only in digital form. Section transcript and response are public records. Al-119.01(2)(a) makes it clear that the public records though these documents were prepared and main-law applies to documents maintained on a computer tained by a private organization, they werein the same way that it would apply to those kept in “received” by agents of a public agency and used ina file cabinet. This section notes the increased de- connection with public business. The purpose of thependency on computerized records and it directs transcript was to perpetuate the information presen-that “each agency must provide reasonable access ted to the infractions committee, in the event theto records electronically maintained.” It goes on to parties wished to appeal the sanction imposed byconclude that the automation of public records the committee. The response was designed to com-“must not erode the right of access to those re- municate information to the body that would hearcords.” the appeal within the NCAA.To determine whether a particular document quali- [5] The term “received” in section 119.011(12)fies as a public record the court must look first to refers not only to a situation in which a public agentthe definition given in the law itself. Section takes physical delivery of a document, but also to119.011(12) defines the term “public record” as: one in which a public agent examines a document residing on a remote computer. If that were not theall documents, papers, letters, maps, books, tapes, case, a party could easily circumvent the public re- photographs, films, sound records, data pro- cords laws. The appeal by the University is a matter cessing software, or other material, regardless of of public concern. It is not transformed into a the physical form, characteristic or means of private matter merely because the documents the transmission, made or received pursuant to law or University lawyers used to prepare the appeal ordinance in connection with the transaction of reside on a computer owned by a private organiza- official business. tion. As the plaintiffs expressed this point, the definition of a public record does not turn on theBy this definition, a document may qualify as a senders method of transmission.public record under the statute if it was prepared bya private party, so long as it was “received” by a Our conclusion that the transcript and response be-government agent and used in the transaction of came public records when they were examined bypublic business. state lawyers and used for a public purpose is sup- ported by the decision of the Second District CourtThe Florida Supreme Court provided additional of Appeal in Times Publishing Co. v. City of St.guidance to the lower courts in Shevin v. Byron, Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990).Harless, Schaffer, Reid & Associates, Inc., 379 That case involved negotiations between*1208 theSo.2d 633 (Fla.1980). In that case, the court defined Chicago White Sox and the City of St. Petersburgthe term “record” as used in section 119.011(12) as for the use of the Suncoast Dome. The documents“any material prepared in connection with official pertaining to the negotiations were prepared andagency business which is intended to perpetuate, maintained exclusively by the White Sox, but theycommunicate, or formalize knowledge of some were examined by agents for the City under a con-type.” Shevin, 379 So.2d at 640. This definition was fidentiality agreement. The court held that the doc-intended “to give content to the public records law” uments were subject to disclosure under the publicby attributing a meaning to the term “record” that is records law because they were examined by agents“consistent with common understanding of the for the City and used in the course of its business. © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  9. 9. Page 918 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)[6] These principles apply with equal force here. It a student athlete from a private school in Newis true, as the NCAA points out, that the documents York, the NCAA would have a good argument thatat issue in Times Publishing were modified at the the record did not become public merely because itrequest of the City, but that is a distinction without was “viewed” by someone who happened to worka difference. A document that is used in the course for the State of Florida. The point overlooked in theof public business is a public record under the NCAAs argument, however, is that the records indefinition in section 119.011(12) if it was made by this case were examined and used for an officiala public official or if was received by the official. If state purpose.it was received, that is enough. It is not necessaryto also show that it was made, partly made, or mod- [7][8] The lawyers signed a confidentiality agree-ified in some way by the official. ment with the NCAA, but that has no impact on our decision that the transcript and response are publicThe NCAA argues that a document is not records. A public record cannot be transformed into“received” within the meaning of the public records a private record merely because an agent of thelaw merely because it is viewed by an agent of the government has promised that it will be keptstate. According to the NCAA, the danger in equat- private. See Gadd v. News-Press Publg Co., 412ing viewing with receiving, is that it could result in So.2d 894, 896 (Fla. 2d DCA 1982); Browning v.the disclosure of information that should remain Walton, 351 So.2d 380, 381 (Fla. 4th DCA 1977).private. An agent who has a password to the secure Nor is it material that the NCAA had an expectationsite would have access to a great deal of confiden- that the documents would remain private. As wetial information, some of it unrelated to the member explained in Sepro Corp. v. Florida Department ofinstitution the agent represents. This information, Environmental Protection, 839 So.2d 781, 784 (Fla.the NCAA argues, should not be disclosed as a pub- 1st DCA 2003), “[A] private party cannot renderlic record merely because a public agent examined public records exempt from disclosure merely byit. designating information it furnishes*1209 a govern- mental agency confidential.” The right to examineWe accept the general premise of this argument, but these records is a right belonging to the public; itthe point the NCAA has not taken into account is cannot be bargained away by a representative of thethat the documents in this case were not merely government.viewed, they were used in connection with publicbusiness. The transcript is a 350-page document; The trial judge also concluded that the Universitythe GrayRobinson lawyers did not use their pass- had improperly delegated its recordkeeping func-word to read it out of idle curiosity. To the con- tion to the NCAA. We have no reason to disagreetrary, they examined it professionally for a legitim- with the trial judge on this point, but we need notate governmental purpose. The transcript literally address the point to determine the correctness of thebecame a part of the Universitys appeal and there- judgment. It appears that the issue was interjectedfore a matter of public business. The same is true of into the case by conflating one legal theory with an-the response. It was the committees answer to the other. In our view, the issue has no bearing on theUniversitys appeal. outcome of the appeal.We would be more inclined to accept the NCAAs [9] In limited but well defined circumstances, a re-argument that viewing is not the equivalent of re- cord created and maintained by a private organiza-ceiving if the documents at issue had not been dir- tion can be subject to disclosure as a public recordectly related to the work these lawyers were doing on an agency theory. For example, if a private en-for the state. If the GrayRobinson lawyers had used tity is acting on behalf of the state or local govern-their password to look at the disciplinary records of ment and creates a document that reflects the busi- © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  10. 10. Page 1018 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)ness of the governmental entity, the document can a public duty of the University. The documents atbecome a public record. In News and Sun-Sentinel issue in this case became public records by a muchCo. v. Schwab, Twitty & Hanser Architectural more direct route: they were received by agents ofGroup, Inc., 596 So.2d 1029 (Fla.1992), the su- the University and used in connection with the Uni-preme court set out a nine-factor test to determine versitys business. The legal status of these recordswhether records held by a private party must be dis- is no different than it would be if they had beenclosed under the public record act on the theory that prepared by the Universitys lawyers and if the onlythe private party is acting on behalf of the govern- existing copies were in the NCAAs possession.ment. [11] The enforcement of the public records law is[10] The critical question in this line of cases is also relatively straightforward in a situation likewhether the private party is a “private agency, per- this. Section 119.07(1)(a), Florida Statutes statesson, partnership, corporation or business entity that “every person who has custody of a public re-acting on behalf of [a] public agency ” that has cord shall permit the record to be inspected*1210therefore become an “agency,” as defined in section and copied by any person desiring to do so ....”119.011(2) Florida Statutes. (emphasis added) The (emphasis added) The plain meaning of this statutecommon feature of all of the cases in this line of is that the public records law can be enforcedauthority, including our own recent decision in B & against any person who has custody of public re-S Utilities v. Baskerville-Donovan, Inc., 988 So.2d cords, whether that person is employed by the pub-17 (Fla. 1st DCA 2008), is that they all involve ef- lic agency creating or receiving the records or not.forts to determine whether a private entity has as- It makes no difference that the records in questionsumed the role of the government. See, e.g., New are in the hands of a private party. If they are publicYork Times Co. v. PHH Mental Health Servs., Inc., records, they are subject to compelled disclosure616 So.2d 27 (Fla.1993); Weekly Planet, Inc. v. under the law.Hillsborough County Aviation Auth., 829 So.2d 970(Fla. 2d DCA 2002); Dade Aviation Consultants, b.Inc. v. Knight Ridder, Inc., 800 So.2d 302 (Fla. 3dDCA 2001); Putnam County Humane Society, Inc. The second major argument on appeal is that thev. Woodward, 740 So.2d 1238 (Fla. 5th DCA 1999) transcript and response are exempt from disclosure. Typically, the private entity has a contract with because they contain education records that are pro-the government and performs a public function in tected by the Family Educational Rights and Pri-the course of its duties under the contract. The vacy Act, 20 U.S.C. § 1232g, a law commonlyprivate entity is acting not as a business adversary known by its acronym FERPA. We reject this argu-to the government but as a surrogate for the govern- ment, as well.ment. FERPA applies to all schools that receive federalThe issue in the present case is much less complic- funds and it serves the dual purpose of ensuringated. The transcript and response are public records that students will have access to their education re-because they were received by agents of the state cords while protecting their rights to privacy byand used in the course of the states business. We limiting the transferability of their records withoutneed not apply the nine-factor test in Schwab to their consent. By its terms, FERPA does not pro-come to this conclusion. Nor is it necessary to de- hibit the disclosure of any educational records. In-cide whether the NCAA became a public “agency” stead, it operates to deprive an educational institu-in its own right under section 119.011(2) by step- tion of its eligibility for federal funding if itsping into the shoes of the University and assuming policies or practices run afoul of the rights of ac- © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  11. 11. Page 1118 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)cess and privacy protected by the law. students and thus were not “education records” un- der FERPA); Baker v. Mitchell-Waters, 160 OhioAs it is pertinent here, FERPA is incorporated into App.3d 250, 826 N.E.2d 894 (2005) (records relat-Florida law by section 1006.52(1), Florida Statutes ing to allegations of abuse or neglect of students by(2009), which provides that “[a] students education teachers are not subject to FERPA).records, as defined in the Family EducationalRights and Privacy Act (FERPA), 20 U.S.C. § [13] The trial court concluded that the two docu-1232g, and the federal regulations issued pursuant ments did not include any information that wouldthereto, and applicant records are confidential and qualify as an education record. Specifically, theexempt from s. 119.07(1) and s. 24(a), Art. I of the court found that these documents “do not containState Constitution.” information*1211 directly relating to a student.” Our review confirms the trial courts view that theseThe phrase “education records” is defined in records pertain to allegations of misconduct by theFERPA as follows: University Athletic Department, and only tangen- tially relate to the students who benefitted from that For the purposes of this section, the term misconduct. “education records” means, except as may be provided otherwise in subparagraph (B), those re- The transcript and response would not be protected cords, files, documents, and other materials in any event because they do not reveal the identity which- of the students. Federal courts have concluded that FERPA does not prohibit the release of records so (i) contain information directly related to a stu- long as the students identifying information is re- dent; and dacted. See United States v. Miami Univ., 294 F.3d (ii) are maintained by an educational agency or 797 (6th Cir.2002); Ragusa v. Malvern Union Free institution or by a person acting for such agency Sch. Dist., 549 F.Supp.2d 288 (E.D.N.Y.2008). or institution. Likewise, several state courts have recognized that once a record is redacted, it no longer containsSee § 20 U.S.C. § 1232g(a)(4)(A). “information directly related to a student” and is therefore not an “education record” under FERPA.[12] By the language of this statute, a record quali- See, e.g. Osborn v. Board of Regents of Universityfies as an education record only if it “directly” of Wisconsin System, 254 Wis.2d 266, 647 N.W.2drelates to a student. See Ellis v. Cleveland Mun. 158, 168 n. 11 (2002) (“once personally identifiableSch. Dist., 309 F.Supp.2d 1019 (N.D.Ohio 2004) information is deleted, by definition, a record is no(documents, including student witness statements longer an education record since it is no longer dir-related to discipline of substitute teacher alleged to ectly related to a student”); Unincorporated Oper-have improperly administered corporal punishment ating Div. of Indiana Newspapers, Inc. v. Trusteesdid not directly relate to students and thus were not of Indiana Univ., 787 N.E.2d 893 (Ind.App.2003)“education records”); see also Briggs v. Bd. of (materials are not “education records” if studentTrustees Columbus State Cmty. Coll., 2009 WL identifying information has been redacted); see also2047899 (S.D.Ohio 2009) (records of student com- Bd. of Tr., Cut Bank Pub. Sch. v. Cut Bank Pioneerplaints against professor relate directly to professor, Press, 337 Mont. 229, 160 P.3d 482 (2007)not students, and are not “education records”); Wal- (FERPA does not prohibit disclosure of records thatlace v. Cranbrook Educ. Cmty., 2006 WL 2796135 do not reveal personally identifying information).(E.D.Mich.2006) (holding that statements provided Because the names of all students were redactedby students in relation to investigation of school from the transcript and response, we conclude thatemployees misconduct did not directly relate to © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  12. 12. Page 1218 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)these documents do not disclose education records 573, 578-79, 106 S.Ct. 2080, 90 L.Ed.2d 552as defined in FERPA, and that the documents do (1986). However, if the statute regulates evenhan-not therefore fall within the exemption created by dedly and if it has only an indirect effect on inter-section 1006.52(1), Florida Statutes. state commerce,*1212 the court must determine whether the states interest is legitimate and, if so,We emphasize that our decision is limited to the whether the burden on interstate commerce exceedsdisclosure of the redacted versions of the transcript the local benefits. See Dept of Revenue of Ky. v.and response. Like the trial court, we have re- Davis, --- U.S. ----, 128 S.Ct. 1801, 1817, 170viewed only the redacted versions of these docu- L.Ed.2d 685 (2008); Pike v. Bruce Church, Inc.,ments. We are therefore not in a position to decide 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174whether the plaintiffs or other members of the pub- (1970).lic are entitled to examine the unredacted versions. [15] The public records law does not attempt to reg- ulate or discriminate against interstate commerce. It c. does not deal with the subject of commerce at all.We come now to the final argument on appeal, that Nor does the application of the law in this case fa-the public records law is unconstitutional as applied vor in-state economic interests over out-of-state in-under the facts of this case. The NCAA contends terests. The law would apply in the same way wethat the law as applied here violates its rights under have applied it here if a private Florida corporation FN1 doing business entirely within the borders of thethe dormant Commerce Clause and under theFirst Amendment right to freedom of association. state had provided information to a public officialThese arguments lack merit. and if the information had then been used in con- nection with public business. FN1. The Commerce Clause states: “The Congress shall have Power ... To regulate We are not persuaded that the Public Records law Commerce ... among the several States....” has an indirect effect on interstate commerce, but U.S. Const., Art. I, § 8, cl. 3. The United even if some effect had been established, we could States Supreme Court has recognized that not say that the law violates the dormant Commerce this affirmative grant of authority to Con- Clause. The Public Records law implements a right gress also encompasses an implicit or guaranteed to members of the public under the “dormant” limitation on the authority of Florida Constitution and it therefore promotes a the States to enact legislation affecting in- state interest of the highest order. The negligible terstate commerce. See Hughes v. Ok- impact the law might have on interstate commerce lahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, clearly does not outweigh the goal of ensuring open 60 L.Ed.2d 250 (1979). government.[14] The United States Supreme Court has adopted The NCAA relies on NCAA v. Miller, 10 F.3d 633a two-tiered test to determine whether a state law (9th Cir.1993), and NCAA v. Roberts, 1994 WLviolates the dormant Commerce Clause. If a statute 750585 (N.D.Fla.1994), in support of its dormant“directly regulates or discriminates against inter- Commerce Clause argument, but these cases arestate commerce, or [if] its effect is to favor in-state distinguishable. Both involve state statutes purport-economic interests over out-of-state interests,” the ing to regulate disciplinary proceedings by collegecourt may declare it unconstitutional as applied, athletic associations. In contrast, the public recordswithout further inquiry. Brown-Forman Distillers, law is a law of general application; it does notInc. v. New York State Liquor Authority, 476 U.S. single out athletic associations. © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  13. 13. Page 1318 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201)David Berst, the Vice President for the NCAAs Di- ARIZONA includes records “made or re-vision I testified that the NCAA relies heavily on ceived by any governmental agency in pur-confidential sources and that the organization could suance of law or in connection with thenot effectively investigate violations of the rules if transaction of public business,” see A.R.S.it could not protect those sources. He said that if the § 41-1350 (2009); ARKANSAS expandedpublic records law were to apply in a case like this, its Freedom of Information Act to includeit would “rip the heart out of the NCAA.” We think records that are received by a publicthat this claim overstates the effect of the law. In agency, see Arkansas Department of Fin.fact, the investigation in this very case refutes the & Admin. v. Pharmacy Assoc. Inc., 333claim. The evidence came to the NCAA not from a Ark. 451, 970 S.W.2d 217 (1998); GEOR-confidential source who wanted to provide informa- GIA includes, among other things,tion against the University, but from an internal in- “computer based or generated information,vestigation by the University itself. The transcript or similar material prepared and main-of the hearing before the Committee on Infractions tained or received in the course of the op-does not reveal a single confidential source. eration of a public office or agency,” see OCGA § 50-18-70(a); INDIANA includesThe NCAAs claim that the application of the Flor- any record that is “created, received, re-ida public records law would impair its ability to tained, maintained by a public agency ...function also assumes that the law imposes a bur- regardless of its form or characteristics” inden that would not be imposed in other states. That Ind.Code § 5-14-3-2(n); ILLINOIS will in-is not the case. Many other states also define a pub- clude records that are “created, received,lic record broadly to include records that are con- retained [or] maintained” by a publicnected with the business of the government yet are agency, see 5 ILCS 140/2 (West 2010);not in the hands of a public agent. Some statutes are MARYLAND includes records “made bylike the one in Florida, in that they refer to docu- ... or received by the unit or instrumental-ments that were made or “received” by a public ity in connection with the transaction of FN2agent in connection with public business. Oth- public business,” see MD Code § 10-ers are even *1213 broader, in that they refer to 611(g)(1) (2009); MASSACHUSETTS in-documents that were “used” by a public agent in the cludes “documentary materials or data, re- FN3course of public business. We do not *1214 gardless of physical form or characterist-suggest that the analysis would be precisely the ics, made or received by any officer or em-same in every state, but merely that Florida law is ployee of any agency,” see M.G.L.A. c. 4,not so distinctive that it would force the NCAA to § 1; MINNESOTA considers public re-change the way it does business. This case arose in cords to be “government data,” which isFlorida, but it is likely that the NCAA would be defined in the statute as “all data collected,dealing with the same issue had it arisen most any- created, received, maintained or dissemin-where in the United States. ated by any government entity regardless of its physical form,” see Minn.Stat. § FN2. For example, ALABAMA includes 13.02(7); NORTH CAROLINA defines records “made or received ... in the trans- public records as “all documents ... made action of public business,” see § 41-13-1, or received pursuant to law or ordinance in Ala.Code 2009; ALASKA includes any re- connection with the transaction of public cords “that are developed or received by a business,” see N.C.G.S. § 132-1(a) (2009); public agency, or by a private contractor OKLAHOMA includes public records for a public agency,” see AS 40.25.220(3); “created by, received by, [or] under the au- © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  14. 14. Page 1418 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201) thority of ... public officials, public bodies, (13); KENTUCKY includes records that or their representatives in connection with are “prepared, owned, used, in the posses- the transaction of public business,” see 51 sion of or retained by a public agency,” see Okl.St.Ann. § 24A.3; RHODE ISLAND Ky. Stat. Ann. § 61.870(2) (2009); includes “all documents ... made or re- LOUISIANA includes, among other ceived pursuant to law or ordinance or in things, “information contained in electron- connection with the transaction of official ic data processing equipment, having been business by any agency,” see R.I. Gen. used ” by a public agent in the course of a Laws § 38-2-2; TEXAS includes public duty, see La. Stat. Ann. § 44:1(2)(a) “information that is collected, assembled, (2009); MAINE includes records that or maintained under a law or ordinance or “[have] been received or prepared for use in connection with the transaction of offi- in connection with the transaction of pub- cial business,” see Tex. Govt Code Ann. § lic or governmental business,” 552.002(a) (Vernon 2009); VERMONT in- Me.Rev.Stat. Ann., Tit. 1, § 401 (2009); cludes “documents ... that are produced or MICHIGAN includes records “prepared, acquired in the course of agency busi- owned, used, in the possession of, or re- ness,” see 1 V.S.A. § 317(b); and WYOM- tained by a public body in the performance ING includes records “that have been of an official function,” see Mich. Comp. made by the state of Wyoming ... or re- Laws Ann. § 15.232(e); NEW MEXICO ceived by them in connection with the considers “[a]ll documents, ... that are transaction of public business,” see § Wyo. used, created, received, maintained or held Stat. Ann. § 16-4-201(a)(v). (emphasis by or on behalf of any public body and re- supplied in all citations) late to public business, whether or not the records are required by law to be created FN3. Among these states, CALIFORNIA or maintained” to be public records, see includes records relating to the conduct of N.M. Stat. Ann. § 14-2-6(E) (2009); NEW the publics business that are “prepared, YORK expanded its definition of “public owned, used, or retained by a public record,” in a case in which the Appellate agency regardless of its form or character- Court of New York held that “[t]he stat- istics,” see Calif. Govt.Code § 6252(e); utory definition of ‘record’ makes nothing CONNECTICUT includes “any recorded turn on the purpose for which a document data or information relating to the conduct was produced or the function to which it of the publics business prepared, owned, relates .... Nor is it relevant that the docu- used, received or retained by a public ments originated outside the government agency,” see Conn. Gen.Stat. § 1-200 ....” see Matter of Washington Post Co. v. (2009); DELAWARE includes records of Ins. Dept, 61 N.Y.2d 557, 565, 475 “information of any kind, owned, made, N.Y.S.2d 263, 463 N.E.2d 604 (N.Y.1984) used, retained, received, produced, com- ; OREGON defines a public record as “any posed, drafted or otherwise compiled or writing that contains information relating collected, by any public body,” see Del. to the conduct of the publics business ... Tit. 29, § 10002(g); IDAHO includes re- prepared, owned, used or retained by a cords “relating to the conduct or adminis- public body regardless of physical form or tration of the publics business prepared, characteristics,” see Ore.Rev.Stat. § owned, used or retained by a public 192.410 (2005); SOUTH CAROLINA in- agency,” see Idaho Code Ann. § 9-337 cludes records that are “prepared, owned, © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
  15. 15. Page 1518 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L. Weekly D2009, 37 Media L. Rep. 2400(Cite as: 18 So.3d 1201) used, in the possession of or retained by a records, and that these documents are not exempt public body,” see S.C.Code Ann. § from disclosure under state or federal law. For 30-4-20(C) (2002); and WASHINGTON these reasons, we affirm the judgment of the trial includes public records that “relat[e] to the court and order the disclosure of the transcript, as conduct of government ... prepared, redacted by agreement of the parties, and the re- owned, used, or retained by any state or sponse in its original form, with the redactions local agency” see Wash. Rev.Code § agreed to by the parties. 42.17.020(42) (2008). (emphasis supplied in all citations) Affirmed.[16] The argument that the application of the Flor- WEBSTER and CLARK, JJ., concur.ida public records law violates the NCAAs right to Fla.App. 1 Dist.,2009.freedom of association under the First Amendment National Collegiate Athletic Assn v. Associatedis also unavailing. We acknowledge that the NCAA Pressis a private voluntary organization and that it enjoys 18 So.3d 1201, 249 Ed. Law Rep. 968, 34 Fla. L.the freedom of association guaranteed by the First Weekly D2009, 37 Media L. Rep. 2400Amendment, but the NCAA has not shown that the END OF DOCUMENTapplication of the Florida public records law im-pairs that right.In support of its argument on this point, the NCAAcites Boy Scouts of America v. Dale, 530 U.S. 640,120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), but thatcase dealt with a statute that directly impaired asso-ciational rights. The court held that the Boy Scoutscould not be forced by state law to accept within itsmembership an openly homosexual boy. The situ-ation presented here is a far cry from the onepresented in the Dale case. The application of theFlorida public records law could not, by any stretchof the imagination, require the NCAA to admit orreject certain institutions. Nor does it require theNCAA to reject the values it wishes to express. Thelaw may prevent the NCAA from conducting secretproceedings against a public school in this state, butthat does not impair the NCAAs freedom of ex-pression or its freedom of association. III.In summary, we hold that the application of theFlorida public records law does not violate any con-stitutional right under the facts of this case, that thetranscript of the hearing before the Committee onInfractions and the Committees response are public © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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