The NCAA allows a party appealing an infractions decision to view documents on the record of the appeal via the NCAA’s secure website, which is password protected and prohibits saving, copying, downloading, or printing of any documents viewed thereon. To further maintain confidentiality of documents on its site, the NCAA requires a user to execute a confidentiality agreement prior to accessing the site. Accordingly, on March 27, 2009, attorneys from GrayRobinson executed confidentiality agreements in order to gain access to various documents on the record, via the NCAA’s secure website, while preparing FSU’s appeal. GrayRobinson filed an initial appeal brief on April 23, 2009 via the website. On June 2, the NCAA issued a written response, made available to FSU on the secure website.

No physical representation of the written response were received by FSU or GrayRobinson, and the only access to the written response and related documents was through accessing the NCAA website under the terms of the executed confidentiality agreement.

Plaintiffs in this case include the Associated Press and 25 other media organizations. In a letter dated June 4, Plaintiffs requested the June 2 NCAA response from FSU and the NCAA. After initially failing to provide the response, Plaintiffs filed their complaint for this case in June 15, 2009. The next day, the NCAA informed FSU that it would not object to a disclosure of a transcript of the response, in compliance with any applicable privacy laws and exemptions, though the NCAA refused FSU’s request for a usable copy of the response. On June 18, FSU transcribed the response from the NCAA website, though redacting identifiable information of students, and provided the redacted response to the public.

In this litigation, Plaintiffs sued under the Florida Public Records Law seeking the transcript of the October 2008 hearing and an actual copy, as opposed to the redacted transcript, of the NCAA’s June 2009 response. The Defendants are FSU’s board of trustees, the NCAA, and GrayRobinson.

Public Record Includes Any Reviewed Document

In determining the scope of the Florida Public Records Law, the court reviewed §119.011(12) Fla. Stat. and Article I, Section 24, which require dissemination of public records. Specifically, Article I, Section 24 of the Florida Constitution, which grants public access to any public record “made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.” Thus, the issue before the Court is whether the October hearing transcript and the June response are public records, and thus subject to Florida’s open records law. Specifically, the Court must determine whether these documents were “received” by GrayRobinson (i.e., FSU’s agent). In other words, the court must determine if the term “received” encompasses review of the documents on the NCAA’s website.

The NCAA argues that documents must be physically received or possessed in order to be “received” for purposes of the statute. Thus, documents that are merely viewed on the NCAA’s Custodial site are not received and, therefore, not public records. The Plaintiffs argue that the NCAA’s interpretation is too narrow, and FSU’s agents’ viewing of the records on the site sufficiently constitutes receipt.

The Court agrees with the Plaintiffs. In rendering his decision, Judge Cooper cited City of Miami v. Berns, 245 So.2d 38 (Fla. 1971) and Dade Aviation Consultants v. Knight Ridder, Inc. 800 S.2d 302 (Fla. 3d DCA 2001)for the proposition that it is well settled law that the Public Records Act is to be liberally construed in favor of releasing documents, and that any doubts must be in favor of disclosure. Under this, Judge Cooper found the NCAA’s definition of the term “received” as too narrow. Because the documents in question were viewed by FSU’s agents on their behalf, were used by FSU’s agents in representing FSU on appeal, and were in connection with the official business of FSU, the documents were “received” and are therefore public records under statute. In particular, Judge Cooper reasons that “[t]o adopt a narrow position that ‘received’ requires physical delivery would emasculate the policy of open government embodied in the Public Records Act and Florida’s Constitution and would provide clever proponents of secret communication with government an easy mechanism for avoiding the public’s right to know what its government is doing.”

Moreover, with respect to the June response, the transcript provided by FSU is not sufficient due to its divergent format from the original response. However, Judge Cooper does hold that FSU and GrayRobinson did comply with the Public Records Act with respect to the June response, as the parties provided to the Plaintiffs what they believed they had available at the time (i.e., the transcript).

Accordingly, the NCAA is responsible for the public records requested as the custodian thereof “because it is the entity that has the primary, ‘original’ copy of the records requested.” In particular, Florida courts have recognized that public records may be in the custody of private entities, though the private entity assumes the same responsibilities therefore under the law. Times Pub’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990). These responsibilities include ensuring access to the public. Merely because the NCAA maintained the records and did not supply the same in physical form to FSU or GrayRobinson did not preclude their being considered public records. Thus, since these records were created for use in official public business for a state agency and its agent GrayRobinson, these records were subject to Florida’s Public Record Act.

However, the Court does disclaim that the ruling is not a determination on all records created by the NCAA, but only those in issue here that are received by FSU via its agent.

Confidentiality Agreement Void As Contrary to Law

In addressing the fact that FSU and GrayRobinson executed confidentiality agreements in order to participate in the appeals process, Judge Cooper held that such an agreement is void. Specifically, Judge Cooper cited to Sepro Corp. v. Dept. of Environmental Protection, 839 So.2d 781 (Fla. 1st DCA 2003) & Tribune Co. v. Hardee Memorial Hosp., 19 Media L. Rep. 1318 (Fla. 10th Cir. Ct. August 19, 1991) for the proposition that such agreements are “void and unenforceable under Florida Law.” Thus, while the confidentiality agreements made it difficult for FSU to provide access for fear of NCAA penalties, such “self-imposed barriers” are not a legal excuse from compliance with the Florida Public Records Act. Thus, since it is ultimately the responsibility of the state agency to prove that a public record is not releasable and absent a statutory exemption, the NCAA must provide to the Plaintiffs the version of the June response posted on its website (though with the redactions), and must provide to the Plaintiffs the October hearing transcript.

In May 2006 PacSun filed an action in superior court, alleging that Olaes breached the statutory warranty that the hot sauce monkey shirts were “free of the rightful claim of any third person by way of infringement or the like,” as contained in section 2312, subdivision (3) of the California Uniform Commercial Code (§ 2312(3)). Both parties filed cross-motions for summary judgment. The trial court denied PacSun’s summary judgment motion, but with respect to Olaes’ motion, the court ruled that “SNCL’s underlying claims of infringement were not ‘rightful claims’ under § 2312(3) and thus Olaes did not breach the warranty provided for under that section” and relied upon the fact that SNCL did not carry its burden to succeed on the motion for preliminary injunction in the underlying trademark suit.

On appeal, PacSun argued that the trial court erred in ruling, as a matter of law, that SNCL’s trademark infringement claim was not a rightful claim because “at the very least,” there is a disputed factual issue as to whether the claim is “rightful,” which precludes summary judgment. The issue before the Court of Appeal for the Fourth Appellate District of California was whether the trial court properly ruled on a motion for summary judgment that the § 2312(3) warranty did not apply because the trademark suit filed by SNCL was not a rightful claim of infringement. Olaes suggested that a rightful claim is a valid claim, meaning one that has proven, or will likely prove, meritorious in litigation. By contrast, PacSun argued that any claim “in the form of litigation” constitutes a rightful claim regardless of its underlying merits.

Citing 84 Lumber Co. v. MRK Technologies, Ltd. 145 F.Supp.2d 675 (W.D.Pa. 2001), the Court of Appeals noted that other courts have found that the phrase "rightful claim" under the UCC as being somewhere between these interpretations. However, there were no California cases that discussed § 2312(3) and the definition of a rightful claim. As such, the Court of Appeals applied the general rules of statutory interpretation.

First, looking to the text of the statute itself, the phrase “rightful claim” is not defined in the California Uniform Commercial Code, and due to the multitude of definitions of “rightful” in common usage that leave the term ambiguous, the court then turned to extrinsic aids. The court looked to the official commentary to the Uniform Commercial Code, as an especially helpful aid under California caselaw as done in AmerUS Life Ins. Co. v. Bank of America, N.A., 143 Cal.App.4th 631, 638 (2006); Wilson v. Brawn of California, Inc. 132 Cal.App.4th 549, 555 (2005); Cohen v. Disner 36 Cal.App.4th 855, 862 (1995). This demonstrated that, contrary to Olaes’ position, the term “rightful claim” as used in the statute is intended to broadly encompass any nonfrivolous claim of infringement that significantly interferes with the buyer’s use of a purchased good. The court of appeals found that the comments, by stating that the seller warrants that there will be “no claim of infringement,” and by asserting that the buyer’s remedy arises immediately upon notice of infringement, strongly suggests that any significant claim of infringement – whether or not ultimately meritorious- triggers the § 2312(3) warranty. The court also noted public policy arguments that supported interpreting the warrant to encompass all nonfrivolous claims of infringement. For example, the seller’s incentive to reduce or eliminate prospective claims of infringement is undermined if the § 2312(3) warranty applies only to meritorious claims, leaving the risk of closely contested, but ultimately unsuccessful, infringement claims to be borne by unsuspecting purchasers, who are less familiar with the product than the seller.

Lastly, the Court of Appeals noted that this interpretation was consistent with another court's decision on the same basic warranty provision: Sun Coast Merchandise Corp. v. Myron Corp. 393 N.J.Super. 55; 922 A.2d 782, 796–797 (App.Div. 2007), which held that a rightful claim is a claim that "cast[s] a ‘substantial shadow’ on the buyer's ability to make use of the goods in question." However, the Court of Appeals modified this standard to clarify that to cast a substantial shadow, the claim must be non-frivolous since whether a claim is frivolous is more consistent with terminology used in California law. As such, the Court of Appeals settled on the following standard:

A rightful claim under section 2312(3) is a nonfrivolous claim of infringement that has any significant and adverse effect, through the prospect of litigation or otherwise, on the buyer's ability to make use of the purchased goods.

Olaes then contended that even if the court of appeals disagreed with the trial court’s interpretation of rightful claim, it could still affirm the summary judgment ruling on the alternate ground not ruled on by the trial court: that Olaes’ breach of the warranty was not the proximate cause of PacSun’s damages. Olaes argued that the warranty breach cannot be considered the proximate cause of the damages because PacSun knew of the purported defect in the hot sauce monkey shirt before it ordered them. The court of appeals, however, did not find that the evidence presented on Olaes’ summary judgment met the threshold for a ruling in Olaes’ favor.

The trial court’s interpretation of “rightful claim” was erroneous; a rightful claim under § 2312(3) is not synonymous with a claim that ultimately will prove successful in litigation. Under this standard, the trial court could not properly conclude on the evidence before it, as a matter of law, that the third party infringement claim against PacSun was not a rightful claim. The court of appeals reversed the judgment of the trial court.

The State of Texas entered a plea for jurisdiction on the grounds that there was insufficient evidence of a taking under Article 1 such that sovereign immunity prevented Mr. Holland's action. The trial court and the court of appeals both denied the plea on the grounds that there was insufficient evidence that the use of the patent was under a contract, and thus found that there was an issue as to whether the use was a takings under Article 1, Section 17. The Supreme Court of Texas reversed, finding that there was no takings claim since the patent use was colorably under the contract between the State and Mr. Holland's companies.

As an initial point, the Supreme Court noted that, while sovereign immunity generally protects the State from suit, sovereign immunity does not protect the State from a takings claim under Article 1, Section 17. In order to show that a takings took place, however, there needs to be evidence that "a governmental actor acted intentionally to take or damage property for a public use." However, where the government acts under colorable contractual authority, there is no takings since the government "lacks the necessary intent to take under its eminent-domain powers and thus retains its immunity from suit." Instead, the only parties liable are the contractors doing the work on behalf of the State. As such, a remedy is only provided against the contractors as opposed to the State.

In view of the above, the State of Texas did not form the necessary intent to take U.S. patent no. 6,027,653. Specifically, there was uncontroverted evidence that Mr. Holland personally provided, during the contract, the process to the filtration process that eventually was patented. As such, regardless of whether there was a true contractual relationship between Mr. Holland, personally, and the State of Texas, there was no requisite intent to exercise eminent domain for U.S. patent no. 6,027,653 and instead any use was under color of the contract between the State and Mr. Holland's companies. Therefore, while Mr. Holland's companies could be liable for infringement, there was no liability under Article 1, Section 17 of the Texas Constitution.