Friday, January 31, 2014

Testimony Ends In Clerk of Court's Public Records Lawsuit Against the EDC

TITUSVILLE, Florida -- The witness testimony portion of the hearing concluded on Friday in the public records lawsuit brought by Brevard County Clerk of Court, Scott Ellis, against the Economic Development Commission of Florida's Space Coast which seeks a Circuit Court judge's order that the EDC hand over its BlueWare documents.

But it could be well over a month before a ruling takes place in the lawsuit.  That's because Brevard County Circuit Court Judge John Dean Moxley, Jr. refined the issues before the Court today to a "totality test' and a "delegation test" as the applicable case law in determining whether the EDC's documents are subject to public records inspection under Florida Statute Chapter 119.  Moxley then gave attorneys for both sides 21 days to write closing arguments that apply the evidence introduced in Court to those two tests.

Referred to by Moxley as the "Schwab test" from the 1992 public records case News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, the factors considered include, but are not limited to:  1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency's chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency's involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for who's benefit the private entity is functioning. 


"We’re confident that the Clerk has presented sufficient evidence to indicate that the EDC is subject to Florida’s Public Records Act when it is utilizing public funds to perform its functions," said Tyler Winik in a release from the Clerk's office.   "The timeline put forth in Court shows the current public-private partnership we know as the EDC evolved from what was once the County’s Brevard Economic Development Council.  The conversion was done with the County’s approval to delegate a single point of contact for the County’s economic development needs.  The EDC could not have been viable without the initial seed appropriation the County provided in 1989.  The County’s continued $1.4 million funding enables the EDC to provide the services and programs offered. Our belief is the County taxpayer is entitled to have a transparent view on how their money is spent"

"We are eager to get resolution and thankful the process is moving forward," said EDC President and CEO, Lynda Weatherman in a statement.  "Our counsel will now draft a legal brief highlighting why our arguments and the evidence presented support our position, and that brief will be provided to the judge in late February for his review and ruling. 

"We are excited and ready to get back to work helping to strengthen Brevard County’s economy through business retention and expansion and our growing roster of innovative community programs such as Made in Brevard and G.O. Contracts, said Weatherman.  "That has always been, and remains, our mission and our focus." 

"The Clerk’s interest in BlueWare’s records has never been about prying into the private financials or trade secrets of companies wishing to come to Brevard. Florida statute already provides generous exemptions for these specific items," Winick added.  "What isn’t provided in statute, however, is the EDC’s ability to deny in whole the public’s review of the records the EDC makes, maintains, or receives with regard to its publicly-funded contract with the County."