Becker v. UCF, Update 2
April 15, 2014 by Guest contributor
Bilerico's John Becker is currently engaged in an open records lawsuit against University of Central Florida. The following update on his case is crossposted with permission.
Good evening, everyone! I'm back from an unexpectedly long trip to Florida last week, caught up on sleep and family time, and am ready to fill you in on the rest of the goings-on in Becker v. University of Central Florida, my open records lawsuit against UCF.
The suit, which I filed with the assistance of the Human Rights Campaign, seeks public records relating to and providing context about the peer review and publication of the anti-LGBT Regnerus "study" that falsely claims children of same-sex couples do worse than those of opposite-sex couples. Social Science Research (SSR), the journal that published Regnerus's paper, is housed at UCF.
We left off on the first day of testimony, with Dr. James Wright (editor of Social Science Research) on the stand. As I look at the incredible volume of notes I've taken, though, further play-by-play doesn't seem to be the most efficient way of sharing the rest of this with you. Instead, I'll just share a few of my overall thoughts and reflections, with as much detail as I'm able to pack in there.
As I wrote last week, the main goal of both UCF and Elsevier, the company that publishes SSR, is to put distance between the journal and the University of Central Florida. They argue that the journal is a part of Elsevier, and that Elsevier, as a private company, is not subject to the state's strict open records law.
My attorney, Andrea Flynn Mogensen, pointed out that the evidence to the contrary is overwhelming: the journal's editorial offices were housed exclusively at UCF and nowhere else; the university granted UCF use of its computers, servers, pass-through networks, email addresses, and office supplies; and the university awarded full assistantships and tuition waivers to grad students to work solely on the journal. Under Florida law, university boards of trustees are only allowed to issue tuition waivers "for purposes that support and enhance the mission of the university."
Further, Mogensen argued that the evidence shows that in his initial employment negotiations with UCF, Dr. Wright insisted on a reduced teaching load so he could continue with his journal business, because it was critical to the mission of the university. Wright also submitted journal-related travel expenses to the university for reimbursement, and his work on the journal was used to justify tenure, promotions, and awards from UCF.
Elsevier claimed that the records I seek are their property, since they publish the SSR journal. However, Mogensen responded that the records at issue were not produced by Elsevier, but at UCF, by UCF employees -- and that at all times, they have remained in the possession of UCF.
Elsevier pointed out that Dr. Wright had signed a confidentiality agreement with Elsevier relating to his job as Social Science Research editor, but Mogensen countered by citing NCAA v. Associated Press, a 2009 case where Florida's First District Court of Appeals ruled that confidentiality agreements between government employees and private companies do not overrule the state's sunshine law.
"'A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private,'" Mogensen said, reading from the decision. "I would add," she continued, "a public record cannot be transformed into a private record because a private agency expects it to be so... despite [UCF's] self-serving statements to the contrary, these records are public records."
Additionally, Elsevier claimed that my public records request was barred from being fulfilled because the information is protected under copyright law, and because the records contain trade secrets. My attorney Victor Chapman said this assertion was absurd on its face.
According to Elsevier's only witness on the topic, executive publisher Ann Corney, Elsevier failed to mark journal-related correspondence as confidential or containing trade secrets, and made no attempt to review the records in question and segregate alleged trade secrets from non-trade secrets after my suit was filed.
Corney further testified that she essentially had no idea how UCF came into possession of the records in the first place. (Yes, that's what she said -- in fact, the bulk of her responses, even to the most basic questions, were along the lines of "I don't recall." )
Chapman also pointed out that the timing of Elsevier's actions in this case strongly undercuts the trade secrets claim: they've known about this case since at least May 13, 2013, yet only attempted to intervene in November.
"Instead of immediately asserting a trade secret and confidentiality claim," Chapman said, "Elsevier did nothing until November 13, 2013, when it filed its 'emergency' motion to intervene. The only 'emergency' was [Circuit Court] Judge Grincewicz's ruling against them.
"When we're looking at... Elsevier's behavior, they sat from May 3 to November 13 and did nothing to protect their interests in this case. That is not what the holder of confidential information would reasonably do."
My attorneys also called Sherry Andrews, associate general counsel for UCF and the person who oversaw their response to my records request, as a witness. Interestingly, Andrews testified that her office's response to my request was "pretty much" the exact same response they provided to Scott Rose, an NYC-based writer who made his own public records request to UCF nearly six months prior to mine. Not only was Rose's request completely unaffiliated with my own, it was also substantially different in language and scope.
When UCF attorney Rick Mitchell put me on the stand, his line of questioning led me to believe he was trying to insinuate that Rose and I are professional collaborators, which we are not, in order to justify the university's nearly identical responses to our respective requests.
He also asked me multiple questions seemingly intended to get me to concede that I narrowed the scope of my request after I'd filed it -- something the university claims but, for the record, didn't actually happen. The language of my request speaks for itself. As a side note, it was also my first time ever testifying on the witness stand. What an experience!
The examination of witnesses took up the entire time allotted for the whole trial, so closing arguments were pushed back to Friday morning, April 11. After they concluded, Judge John Marshall Kest announced that, due to time constraints placed on him by the appellate court, he would have his order in this case ready by Thursday, April 17 -- and if possible, by Wednesday the 16th.
After that comes appellate court. Stay tuned, folks!
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