One of the interesting stories regarding that terrible Mark Regnerus study on gay parenting is a lawsuit filed by John Becker against the University of Central Florida over their refusal to comply with an open records request for documents on how the study came to be published. Becker has a report on how that case is going at Bilerico.
The study was published in a journal called Social Science Research, which is privately owned by a company called Elsevier but run by a UCF professor using UCF resources. The university has refused to turn over emails between Dr. James Wright, the UCF professor and editor of the journal, and Regnerus along with other documents related to its publishing. They claim all that stuff belongs to Elsevier and are therefore not subject to open records requests.
As I wrote last week, the main goal of both UCF and Elsevier, the company that publishes SSR, is to put distance between the journal and the University of Central Florida. They argue that the journal is a part of Elsevier, and that Elsevier, as a private company, is not subject to the state’s strict open records law.
My attorney, Andrea Flynn Mogensen, pointed out that the evidence to the contrary is overwhelming: the journal’s editorial offices were housed exclusively at UCF and nowhere else; the university granted UCF use of its computers, servers, pass-through networks, email addresses, and office supplies; and the university awarded full assistantships and tuition waivers to grad students to work solely on the journal. Under Florida law, university boards of trustees are only allowed to issue tuition waivers “for purposes that support and enhance the mission of the university.”
Further, Mogensen argued that the evidence shows that in his initial employment negotiations with UCF, Dr. Wright insisted on a reduced teaching load so he could continue with his journal business, because it was critical to the mission of the university. Wright also submitted journal-related travel expenses to the university for reimbursement, and his work on the journal was used to justify tenure, promotions, and awards from UCF.
Elsevier claimed that the records I seek are their property, since they publish the SSR journal. However, Mogensen responded that the records at issue were not produced by Elsevier, but at UCF, by UCF employees — and that at all times, they have remained in the possession of UCF.
Elsevier pointed out that Dr. Wright had signed a confidentiality agreement with Elsevier relating to his job as Social Science Research editor, but Mogensen countered by citing NCAA v. Associated Press, a 2009 case where Florida’s First District Court of Appeals ruled that confidentiality agreements between government employees and private companies do not overrule the state’s sunshine law.
“‘A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private,’” Mogensen said, reading from the decision. “I would add,” she continued, “a public record cannot be transformed into a private record because a private agency expects it to be so… despite [UCF's] self-serving statements to the contrary, these records are public records.”
It will be interesting to see how this case ends up. I suspect Becker is right, that the details of how this study came to be published and what the peer review was like will reveal some very interesting things.