Ginny Bixby: Access to public records can be the key to great journalism, especially at a public university. By examining public records, student journalists gain information about a school’s operations and hold school officials accountable for their actions.
For student journalists at Florida State University in Tallahassee, covering the athletics department is about to become a lot more challenging. In June of 2019, the university announced that the department is creating a private nonprofit organization to oversee the athletics department. The decision was approved by the university board of trustees. This change, which will go into effect in the fall, will shield athletics officials from having to comply with public records laws. Now, some records will no longer be public — including internal financial documents, emails, and text messages.
My name is Ginny Bixby and I’m a reporter with the Student Press Law Center. The SPLC is the nation’s only nonprofit legal organization devoted exclusively to defending the free press rights of high school and college journalists and their advisers across the country.
I talked to editors at Florida State’s independent student newspaper, the FSView and Florida Flambeau- and yes, that’s a single paper, about how this change will affect their reporting. I also talked to Mike Hiestand, SPLC’s senior legal counsel, about how Florida law allows this and why it’s problematic for journalists.
Gary Putnik: It caught me off guard because honestly I wasn’t expecting it to happen, and I just thought how does this affect us as a whole as a paper, and what is it going to mean down the line for us, like getting records and just talking to people in general because if they want to they can deny us if they want. And in terms of meetings, how are we going to be able to see what goes on in those meetings, and what does this mean for us as a whole for the paper down the line?
GB: That was Gary Putnik, FSView and Florida Flambeau’s sports editor. He started the position in April after working as a sports writer. Until now, he hasn’t had problems reporting on the athletics department.
GP: I’ve been on the paper for about a year and a half now, and every time that I’ve wanted to be in contact with an athlete or a coach, I’ve generally been able to get in. SIDs, FSU’s sports information directors, have been very open and willing to cooperate with us. So I haven’t had any issues, but one of my concerns down the line is are we going to have those issues going forward?
GB: Florida State’s sports information directors work in media relations on behalf of the athletics department. Zach Bethel, who became editor-in-chief of FSView and Florida Flambeau in April, was also surprised and concerned by the move to turn public records private.
Zach Bethel: I was kind of surprised, it made me think about how much this could really impact. I just think there’s so many different things at play here. I originally got with the paper January of 2017 as a sports staff writer, and I’ve only had good experiences with the sports information directors; they’ve always been very formal and truthful, so I’m hoping that continues but you know you just kind of question what could result in this. We’ve had a pretty healthy relationship with Florida State, and with public relations and such. We remain that we are an independent news organization, so any time we feel that we need to speak up and say that we disagree with what Florida State did, we feel apt to do that. There’s never any animosity or anything too abrupt or jarring between us and public relations; it’s always been pretty solid.
GB: Having a private athletics department at a public university makes access law confusing and unclear. In an interview with The Washington Post, Florida State’s president, John E. Thrasher, said athletics will continue to fulfill records requests. However, this can’t be guaranteed since the department will no longer be required by the government to do so. Both Putnik and Bethel are concerned they don’t know what is legally protected anymore when it comes to their staff’s right to attend meetings or request records.
GP: President Thrasher was saying that all business of the organization will come in accordance with the open meeting law, and should be done publicly, and I was just kind of questioning how would that work with private entities, because it really only applies to governmental entities and at this point because they’re becoming private, they’re no longer under the hand of the government.
GB: Mike Hiestand, SPLC’s senior legal counsel, explained how Florida State’s athletics department is avoiding having to comply with public records laws.
Mike Hiestand: What’s happening here is Florida state legislators have decided to create a private nonprofit organization that is going to oversee or manage state athletic departments at Florida State. Basically the way it works now, the athletics department is just another department within Florida State University. They would be considered a state agency responsible for managing public funds, overseeing the students that are involved in that program, and they would be subject to having their records disclosed under the Florida state open records law. But as a private organization, as a private nonprofit, that would no longer be the case. Their records would sort of be just like any other nonprofit organization. The amount of information they would have to turn over would be much more limited in terms of what the law would actually compel.
GB: Hiestand has significant concerns about what this will mean for journalists.
MH: This is bad news simply because it’s just another step toward shielding what takes place within college athletics. One of the harder beats on any campus is college athletics because they typically do try to be fairly secretive in some of the things that they’re doing, and we hear stories all the time of athletics departments not allowing reporters access to practices, or not allowing reporters access to players to interview them and things like that. It’s always been an uphill battle for many schools to try to get real, credible up-to-date information about how much money is coming in, how much money’s going out, what it’s being spent on. Well this is just a pretty hardcore hurdle to that, I mean before it’s just been a matter of, you know, the law’s been pretty clear that this information from a state university would be publicly available and it’s just a matter of pushing enough to make sure that they actually comply with the law. I think probably what’s happened at Florida State, and they’re going to argue that this is for other reasons entirely, but certainly the effect of what’s happening at Florida State is that they’re changing the law, that these records will no longer be available because they will no longer be held by a state agency. They will be held and controlled by this new private nonprofit agency. So reporters will no longer have the option of pushing them and saying, ‘hey, the law requires that you provide access to this.’
GB: Florida State is relying on an enabling statute in Florida law that allows public universities to create independent “direct support organizations.” The private nonprofit FSU created will be completely in charge of the athletics department and will control all information about that department. This statute is unique to Florida, although a Georgia law allows university athletics departments up to 90 days to respond to public records requests. And according to The Washington Post, Penn State and the University of Pittsburgh have taken advantage of a loophole in Pennsylvania law that allows them to avoid public records requirements.
Florida State isn’t the first public university in Florida to create a private athletics department. The University of Florida’s athletics department has been managed by a nonprofit corporation since 1929. The University of Central Florida has a similar system as well, and the University of South Florida plans on switching to a private department by 2021. The Chronicle of Higher Education reports that while the University of Florida has a history of complying with most public records requests, the University of Central Florida has withheld information in the past. In 2015, UCF refused to release coaches’ contracts and associated documents, arguing that they were exempt from the public record. The University has since made these records available upon request.
Hiestand doesn’t buy the university president’s claims that this won’t change anything.
MH: This changes everything. I mean, this really does change everything. This just basically says that ‘the information that we give you is what we in the goodness of our heart is what we feel is appropriate for you to have.’ That’s a much different sort of dynamic than where you can go and say ‘look, the open records law says you need to provide this.’ In many cases the athletics department is the biggest moneymaker on a campus, so to have that much money which is being taken in under the auspices of a state university is very troubling.
GB: Both Bethel and Putnik have found this new development suspicious and wonder if the athletics department has something to hide.
GP: Why would you make something private, why would you do something like this unless you had something to hide or possibly want to hide down the line? This is just them kind of saving their own butt here and just kind of covering their tracks in the future. So it kind of makes me question it a bit and will bring some scrutiny down the line maybe for a lot of other people.
ZB: The best option is always transparency. We’re a publicly funded university — people want to know where their money’s going. You kind of wonder what is driving this move and what’s behind it.
GB: Bethel brought up a 2013 controversy involving sexual assault allegations against a college football player as an example of a story that would be much harder to cover now. The university was accused of covering up the alleged assault and ended up settling in 2016 for $950,000.
ZB: Title IX is important and it’s frustrating how often it is undermined, and it’s a really important topic to discuss within college campuses all over, you know. So you question, if it was mishandled in the first place, and now the program’s going private, then they have the ability to rescind and not give out as much information. So how is this going to really benefit sexual assault survivors, and there’s so many questions with that.
GB: Putnik said that he’s still brainstorming how he will move forward with his staff of sports writers in light of this change, and that he might talk to students at other schools with private athletics departments.
GP: I actually have no idea on how it’s going to be dealt with because I’ve never experienced this kind of possible censorship like that before, or possible restricting of the press. This is really new territory for a lot of us because I don’t know a lot of people from our staff who have dealt with that.
GB: If you’re requesting public records and don’t know where to start, the SPLC’s public records letter generator is a great resource. You can find it at splc.org/lettergenerator. It will help you formulate a request that you can send to any public agency in your state. Thanks for listening to the Student Press Law Center podcast, produced here in Washington D.C. You can learn more about the topics discussed in this podcast on our website, splc.org. You can also find news stories about student press rights, advice, legal resources and quizzes. For legal help, visit splc.org/legalhelp. Follow us on Twitter @SPLC, Instagram @studentpresslawcenter and be sure to like our Facebook page. You can follow me on Twitter @Ginny_Bixby. The music played was called Let That Sink In by Lee Rosevere.