Response Emergency Motion

7/27/2019 Response Emergency Motion

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

JOHN BECKER,

Petitioner,

v. CASE NO.: 2013-CA-5265-O

2013-WR-0000034-A-O

THE UNIVERSITY OF CENTRAL FLORIDA

BOARD OF TRUSTEES,

Respondent.

________________________________________/

PETITIONERS RESPONSE TO UCF BOARDS EMERGENCYMOTION TO COMPEL RETURN OF INADVERTENT PRODUCTION

Petitioner, JOHN BECKER, through counsel, files this Response to UCF

BOARDs Emergency Motion to Compel Return of Inadvertent Production (Motion).

1. The public records which UCF seeks to claw back were not produced inresponse to any discovery request by a party in this case and do not contain any privileged

information.1

Rather, the public records that UCF claims it inadvertently produced was in

response to a public records request made by an individual who is not a party to this

litigation and which the Court has no jurisdiction over (the public records production).

2. Petitioner denies that the public records production by UCF contain privaterecords or public records that are exempt. The cover letter from UCFs Office of the

General Counsel transmitting the public records production to another individual clearly

stated that the records were the business-related, non-student email messages from Dr.

Wrights account. See Exhibit 1, attached hereto.

1 Significantly, UCF does not assert that the records are subject to any statutory privilege such asattorney-client or work product. Thus, the rules relating to an alleged inadvertent disclosure of privilegedmaterial are not applicable.


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3. Even if the public records production contained exempt records, UCF hasclearly waived any exemption it could have previously asserted. The documents were

produced in response to a public records request under Chapter 119.

4. In the context of the Public Records Act, which is the relevant context here,there is a strict rule of waiver of statutory exemptions when a public body discloses information

that it contends is protected from disclosure. The Florida Supreme Court has extended the

waiver doctrine to privileged material. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326

(Fla. 2007) (State waived any attorney-client privilege that may have existed in two

memorandum, in proceeding upon prisoner's all writs petition challenging the constitutionality

of State's lethal injection procedures under the Eighth Amendment, when it disclosed

memorandum to prisoner's attorney as part of a public records response). Other courts have

extended the waiver doctrine to situations where an agency could have invoked a statutory

exemption to shield disclosure. SeeCity of St. Petersburg v. Romine, 719 So. 2d 19 (Fla. 2d

DCA 1998) (requiring disclosure of records alleged to be exempt because the agency had

already orally released the same information); Downs v. Austin, 522 So. 2d 931, 935 (Fla. 1st

DCA 1988) (once the State has gone public with information which could have previously

been protected from disclosure under the Act's exemptions, no further purpose is served by

preventing full access to the desired documents or information.); Staton v. McMillan, 597 So.

2d 940 (Fla. 1st DCA 1992) (statutory exemptions do not apply if the information has already

been made public.); see also Barfield v. City of Sarasota, Case No. 2012-CA-7195 (12th

Jud.

Cir., Sarasota County) (City lost ability to assert active criminal investigative exemption after it

revealed video to third party), available at http://goo.gl/Zqhyh.

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http://goo.gl/Zqhyhhttp://goo.gl/Zqhyh


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5. In Romine andAustin, the Courts deemed oral statements about otherwiseexempt public records sufficient to waive any exemption and require disclosure of the records.

Here, a much more detailed disclosure of public records has already occurred. More important,

other individuals not before the Court, including media outlets, obtained access to the public

records production. Because the records are already public, no further purpose is served by

preventing full access to the desired documents or information. Downs, 522 So. 2d at 935.

6. The decision in Tampa Convention Hotel Associates, Inc. v. City of Tampa, 01-00668, 2001 WL 34402966 (Fla. Cir. Ct. 2001), affords no shelter to UCF. That case

prospectively determined the process by which production of public records would occur under

a court order. Here, no discovery rule or court order governed the public records production

made by UCF to an individual who is not a party to this action. Additionally, that case is not

binding on this Court and conflicts with the authorities cited above.

7. As for the unredacted version of Dr. Wrights contract with Elsevier, it is clearthat Dr. Wright furnished that document to Tanya Perry, a UCF employee, in August 2012,

well before the underlying litigation or any public records request by Mr. Becker. The contract,

therefore, was furnished in connection with official University business. See Sepro Corp. v.

Florida Dept. of Envtl. Prot., 839 So. 2d 781, 784 (Fla. 1st DCA 2003) (a private party cannot

render public records exempt from disclosure merely by designating information it furnishes a

governmental agency confidential.).

8. In this case, Dr. Wright, a UCF employee, furnished the contract to TanyaPerry, another UCF employee via their respective university e-mail accounts. Under these

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circumstances, the record was made or received in connection with the transaction of official

agency business.2

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

the University possessed and produced it in response to a public records request. The

document is not marked confidential. Any confidentiality that existed between the parties was

waived when Dr. Wright furnished it to UCF who then turned it over in response to a public

records request.

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

any stipulation, court order, or discovery request, this Court has no jurisdiction to entertain the

request by UCF to clawback the documents it contends were inadvertently released.

WHEREFORE, Petitioner respectfully requests that the Court deny the Motion.

Respectfully submitted,

/s/ Andrea Flynn Mogensen___________________

ANDREA FLYNN MOGENSEN, EsquireThe Law Office of Andrea Flynn Mogensen, P.A.

200 South Washington Boulevard, Suite 7

Sarasota FL 34236

Telephone: 941.955.1066Florida Bar No. 0549681

[email protected]

[email protected]

VICTOR LEE CHAPMAN

Florida Bar No. 407429Barrett, Chapman & Ruta, P.A.

18 Wall Street

2 Under 119.011(12), Florida Statutes, Public records means all documents, papers, letters,maps, books, tapes, photographs, films, sound recordings, data processing software, or other material,

regardless of the physical form, characteristics, or means of transmission,made or received pursuant tolaw or ordinance or in connection with the transaction of official business by any agency . (Emphasisadded).

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Orlando, FL 32801

(407) 839-6227

[email protected](Primary)[email protected](Secondary)

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 26th day of June, 2013, I electronically filed theforegoing with the Clerk of Court by using the eFiling Portal. I further certify that a true and

correct copy of the foregoing has been served via email to the following:

Richard E. Mitchell, Esquire

GrayRobinson, P.A.

301 East Pine Street, Suite 1400Orlando, FL 32801

[email protected]

[email protected]

/s/ Andrea Flynn Mogensen___________________ANDREA FLYNN MOGENSEN, Esquire

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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P.O.Box160015,Orlando,FL32816001540782324824078236155Fax

Office of the General Counsel

Mr. Barfield,

Please find attached a link to the files requested in your public records request dated May 22,

2013. The emails are contained in separate PST files. The PST [email protected]

(entitled Records Request) should contain 181 emails. The PST [email protected](entitled SAndrews emails) should contain 433 emails.

Messages of a personal nature, such as communications from family members, are not publicrecord and were removed. Messages which after review revealed themselves to be of a

confidential and exempt nature for example, education records - were removed.

Thus, messages were removed in the following exemption categories:

1. Education records material directly related to a student and maintained by the

UniversityPer 1002.225, 1006.52, 20 USC 1232g, 34 CFR Part 99

2. Collective Bargaining Work Product work product developed by the publicemployer in preparation for collective bargaining negotiations and during negotiations

Per 447.605(3)

3. Litigation work product work product developed by an agency attorney or prepared

at the attorneys express direction reflecting mental impressions, conclusions, litigation strategy,

or legal theory of the attorney or the agency; and prepared exclusively for civil or criminal

litigation or for adversarial administrative proceedings, or prepared in anticipation of imminentcivil or criminal litigation or imminent adversarial administrative proceedings; and where such

litigation or proceedings are still in progress.

Per 119.071(1)(d)Parties: UCF and United Faculty of Florida

Parties: UCF and United Faculty of Florida (representing Charlotte

Trinquet)Parties: UCF and John Becker

Sincerely,

Tanya

EXHIBIT 1

Documents

Response Emergency Motion