New judge sides with UCF in records lawsuit

By Sean Lavin, Special Projects Producer, slavin@wkmg.com
Published On: Apr 18 2014 06:28:52 PM EDT
Updated On: Apr 18 2014 10:22:19 PM EDT
ORLANDO, Fla. -

UCF won the latest round in a public records battle for emails from a professor who edited a controversial study commissioned by opponents of gay marriage.

Ninth Circuit Court Judge John Marshall Kest issued a final order stating the requested emails are not public records, vacating the order of previous Judge Donald Grincewicz, who reached the complete opposite decision.

The main difference between both judges' rulings: Kest made his decision after a full three day trial and without actually seeing the requested emails and the previous judge made his decision after seeing the emails himself, but without a full trial.

While Kest's judgment now stands, the controversy appears far from over. The LGBT rights activist who filed the lawsuit called the ruling "outrageous" on his twitter feed Thursday.

"Of course, we will appeal," said John Becker, an LGBT activist.

UCF had appealed Judge Grincewicz's decision, who recused himself for a reason that hasn't been made public late last year, and Florida's 5th District Court of Appeal kicked it back to the Ninth Circuit Court for a new trial judge to sort out disagreements over the finality of Grincewicz's decision.

Once the 5th District Court of Appeal renders its ruling, it could further impact how other public universities across the state respond to requests for records of professors conducting science for private companies while using at least some public resources, like office space and telephone access.

Judge Kest made his ruling by applying "a totality of factors test" the Florida Supreme Court adopted in 1992 when determining whether records are private records or public records.

Kest wrote that "an examination of these factors reveals that the records Becker seeks are not public records" because "no public function has been transferred or delegated by UCF to Elsevier," the private company that published the New Family Structures Study in the Social Science Research Journal. Kest also pointed out UCF did not create or control the journal.

Becker's attorney argued it was not proper to apply the test in this case.

The study has been blasted as biased by many critics, including a Detroit federal judge. When asked if UCF stood by the study, a university spokesman previously pointed out how it was authored by University of Texas professor Mark Regnerus and said "UCF was not involved in the study."

It's unclear when the appellate court may rule.

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