KnightNews.com’s Tuesday Response after being Denied Records Seeking Full Explanation
———- Forwarded message ———-
From: KnightNews.com
Date: Tue, Apr 26, 2011 at 4:48 PM
Subject: Re: Public records request under Chapter 119 (Plancher statements)
To: Grant Heston
Cc: Scott Cole
Dear Grant,
Thank you for responding so promptly regarding our public records request on behalf of Mr. Cole. We do have a few follow up questions for you regarding our request and the exemption you’ve claimed under Chapter 119, Florida Statutes.
After conducting research on Section 119.071(1)(d)1, Florida Statutes, and corresponding case law, we are not yet convinced that these records are exempt from production; or that the custodian/designee has sufficiently overcome the burden to explain, with particularly, the reasons for concluding the requested records constitute exempt records under the meaning of the statute which you cited, by simply copying and pasting the statute without further explanation. If you intend to continue asserting this statutory exemption to deny the records request, we respectfully ask again that you to cite which portion of the statute you believe applies and the reasons for coming to this conclusion to the full extent which we’re entitled pursuant to, Section 119.07(1)(e)-(f), Florida Statutes.
One reason we are not yet convinced this statute applies is because the exemption you cite only “extends to those records that contain the attorney’s mental impressions, litigation strategy, or legal theory and are prepared exclusively for litigation or in anticipation of imminent litigation. See Lightbourne v. McCollum, 969 So. 2d 326 – Fla: Supreme Court 2007 (emphasis in original).” Thus, as the Florida Attorney General’s office concluded in AGO 2005-23, “the statute requires that in order to come within the scope of the exemption, attorney notes must be prepared exclusively for or in anticipation of litigation or adversarial administrative proceedings; records prepared for other purposes may not be converted into exempt material simply because they are also used in or related to subsequent litigation.” The burden is on the state agency denying the records request to show these witness statements qualify for that exemption, and we do not see how you have done so.
While we do not dispute that the requested records, including witness statements to Plancher’s death, were likely created with the blessing of counsel, we are skeptical that the statements were “prepared exclusively for litigation or in anticipation of imminent litigation.” Grant, you yourself told us, “Our top priority is the health, safety and welfare of our student-athletes, and we provide superb medical care at UCF.” Wouldn’t an organization placing such a high priority on the health, safety and welfare of its student-athletes collect witness statements to get to the bottom of what caused a controversial death, even if there was no anticipation of imminent litigation? If the answer is “yes,” then it stands to reason the witness statements were also prepared as part of an internal investigation conducted for UCF’s “top priority” of ensuring the health and safety of its athletes, and thus not exempt from production pursuant to Section 119.071(1)(d)1, Florida Statutes.
Obviously, it stands to reason that the University would want to make sure its students are safe, so it would have conducted its own investigation. Indeed, statements provided to media indicate UCF did conduct its own investigation — prior to any actual or imminent litigation. Take, for example, the following statement, which was reported in marconews.com on March 26, 2008:
“UCF officials reported Tuesday that an internal investigation into Plancher’s death showed the offseason workout he participated in did not violate NCAA rules.” (See http://www.marconews.com/news/2008/mar/26/ucf-paying-funeral-medical-expenses-ereck-plancher/ )
Similarly, the record shows the UCF state agency investigates, for its own purposes unrelated to litigation, its football program in the wake players collapsing, as articulated in this Orlando Sentinel article dated March 28, 2009, which states in part:
“UCF President John Hitt ordered the review after UCF running back Brandon Davis collapsed during a December workout. Davis’ weeklong hospitalization following a workout came months after UCF freshman wide receiver Ereck Plancher died following an offseason workout.” (See http://articles.orlandosentinel.com/2009-03-28/sports/ucfglazier28_1_glazier-ucf-hitt)
The March 28, 2009 Sentinel article goes on to explain that this review, the results of which were made public at a press conference, did not focus on Plancher’s incident and Davis’ incident, but instead on current practices. Hitt defended the decision to have this public review — which was conducted not for litigation purposes but instead for the purposes of UCF ensuring the safety of its football program — not focus on Plancher and Davis because, “We had already done a detailed analysis of each of those.”
As such, the record, as we understand it, shows UCF conducted an investigation over the circumstances leading to Plancher’s death not “exclusively” for purposes related to litigation, but also for internal purposes, such as showing UCF did not violate NCAA rules and ensuring UCF President John Hitt’s belief in the safety of the football program. It stands to reason that collecting witness statements would be used to achieve those two goals — not exempt from Chapter 119 — outlined above.
Additionally, the timeline surrounding these witness statements also suggests these statements were not “prepared exclusively for litigation or in anticipation of imminent litigation” as required by statute in order to qualify for the exemption which you cited. According to media reports, UCF conducted interviews of players about one month after he collapsed in March, 2008. We understand the Plancher family filed its intent to sue on August 1, 2008. Because the witness statements were taken prior to litigation being filed, they clearly cannot have been “prepared exclusively for litigation.” Similarly, because witness statements were reportedly taken several months prior to the Plancher family having ever filed its intent to sue in order to give a state agency notice of imminent litigation, it cannot be said that litigation was “imminent” when statements were taken, either.
At this point, you have not indicated which of the following exempt items you believe the requested records constitute: a mental impression; a conclusion; a litigation strategy; or legal theory of the attorney or the agency. We, however, fail to see how any witness statements reflecting an eyewitness account of what happened to Plancher constitutes any of those preceding exempt items. It is also important to note that a circuit judge refused to apply the exemption to tapes, witness statements and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp. See Sun-Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. Oct. 11, 1995).
Grant, this case is very similar. All indications are the requested records are witness statements related to an investigation by UCF into the death of one of its athletes the University would have a duty and obligation to conduct irregardless of any actual or imminent litigation. If you disagree, please provide us the explanation we’re entitled to in order to overcome the lawful burden the state agency denying records bears when doing so.
We await your response.
