Wednesday, March 26, 2014

Court: EDC Subject To Florida Public Records Law

TITUSVILLE, Florida -- Brevard County Circuit Court Judge John Dean Moxley, Jr. has ruled in favor of Brevard County Clerk of Court, Scott Ellis, that the Economic Development Commission of Florida's Space Coast (EDC) is subject to the Florida Sunshine public records law and must produce its documents related to BlueWare.

In a letter instructing Ellis' attorney, Curt Jacobus, Esq. of GrayRobinson, P.A., to prepare a final judgment, Moxley, Jr. held, "The documents in the possession of the respondent [EDC] as a private entity must be produced as public records, because Brevard County has delegated a statutorily authorized function to the respondent and the records generated by the respondent’s performance of that duty are public records."

"Economic development and nurturing economic advances promulgated by the Chambers of Commerce are appropriate governmental functions...," Moxley stated.  "...the scope of the contract delegated economic development of Brevard County to the Economic Development Commission of Florida’s Space Coast, Inc.  Accordingly, any records generated in carrying out those duties are public records subject to inspection."

Moxley, Jr. did grant the request of the EDC's attorney, Kimberly Rezanka, Esq. of Dean Mead, P.A., that if the EDC believes records are not subject to inspection, to provide a privilege or exemption log to the Court specifying the basis for non-disclosure. Otherwise, the EDC must disclose the documents to Ellis.

“Judge Moxley’s opinion affirms what our office has asserted since January 2013: the EDC is subject to the Florida Public Records Act when working on behalf of the County as its economic development agency," Ellis said in a statement.  "The EDC has been delegated the County’s economic development duties by contract since 1989. The EDC receives $1.4 million of taxpayer funds annually as part of that contract.  We believe the ruling is a true victory for the right of the taxpayers to know how their monies are expended."

"The commitment exhibited by Curt Jacobus and Alec Russell of GrayRobinson, P.A. to the public’s right to review public records is commendable," Ellis added.  "The arguments for the Court were well presented and the research extremely thorough."

In light of the Court’s ruling, we look forward to working with the EDC as it complies with our unfulfilled request for records. We clearly recognize certain documents are exempted by FS 288.075 and will honor the court’s decision to review said documents for applicability.” 

EDC CEO Lynda Weatherman

"While we respect the authority of the Court, We disagree with this ruling and are seeking further clarification," EDC President and CEO Lynda Weatherman wrote in a letter to EDC Board members.  "After review and discussion with our legal counsel and officers, we believe the Court failed to utilize the proper test for determining whether the EDC’s records are public records."

"We do not believe clear and convincing evidence was presented by the Clerk to support the ruling," Weatherman added. "The EDC merely provides services to the County as set forth in the Contract, not unlike many contracts the EDC has with other entities and businesses. Unfortunately, the ruling leaves many unanswered questions. We will review all options, including appeal, before determining our next course of action."

"To be clear, the EDC’s operations and the integrity of our files remain unchanged at this time. We will keep the Board informed as more clarity is established."



BlueWare is the company caught up in a public corruption criminal case brought by the Florida Department of Law Enforcement and State Attorney Phil Archer against former Clerk of Court, Mitch Needelman, his former business partner Matt Dupree, and BlueWare CEO Rose Harr

The EDC helped BlueWare and some of its affiliated companies to qualify for various government programs and other "workforce incentives" that could have totaled nearly $2 million in taxpayer money.   None of those incentives were ultimately awarded to BlueWare because it did not meet its performance benchmarks.

After the Clerk's office learned from a Brevard Times investigative article published on August 26, 2013 that State of Florida Department of Economic Opportunity officials said the BlueWare's confidentiality had lapsed and Governor Rick Scott's Office stated to Brevard Times that the BlueWare incentive contract was canceled on April 5, 2013, the Clerk sent his auditors to the EDC in Rockledge the next day to request a copy of the EDC file on BlueWare.  When the EDC refused to comply with the public records request, Ellis then filed this lawsuit.

Brevard Times was the only news source to continue a series of in-depth investigative articles led by Charles Parker into this and related stories: