School Board Member Jennifer Jenkins continues her relentless pursuit of obtaining the public records the Board Member Matt Susin has refused to produce. Monday, her attorney Jessica Travis, filed an 81-page amended complaint after the previous complaint was dismissed on procedural grounds calling for more specificity. Specific is an understatement for this new complaint.
Following a series of depositions, newly obtained evidence and documents, the complaint outlines the lengths Susin has gone to evade producing these public records. In every instance where Susin responded that there were no records to the request, the other party, i.e. Brevard County Sheriff’s Office, produced the records.
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All witnesses subpoenaed thus far have been cooperative and forthcoming in their depositions except for State Representative Randy Fine. In addition to evading service of his subpoena for quite some time, after he was served, he retained an attorney less than 24 hours before his scheduled deposition, who stated he (the attorney Alan Landman) was not available for the deposition.
He knew that he would not be available, yet still took on the case. Fine did not show for the deposition, and a motion to hold him in contempt of court was filed. It has yet to be heard.
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As you may remember, Fine is currently awaiting trial for ethics violations with the state after Jenkins filed a complaint where he allegedly instructed West Melbourne City Councilman John Dittmore to destroy text messages between the two of them related to Jenkins.
Dittmore produced the records anyway which showed Fine calling Jenkins a “whore” and he stated he would withhold funding to the Special Olympics over the spat. The Ethics Commission found probable cause on the case.
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His deposition was then rescheduled for a later date where again Fine’s attorney stated that he would not be available on that date, and that Fine again would not be present.
Attorney Jessica Travis stated in her motion that she believes Fine is simply trying to delay his deposition until 15 days prior to the upcoming legislative session the first week of January. Once that time-frame passes, Fine is exempt by law of any legal proceedings until 15 days after session ends in March. The trial for this case is set for February. Fine has used this strategy on at least 3 separate occasions, to include his ethics hearing.
To fully understand the severity of this case, reading of the facts as alleged in the complaint are necessary, as it outlines the order of events and the extensive time (over 400 days in some cases) Susin took to give any response to the requests whatsoever.
Of further concern are the tremendous legal fees that have been occurred by Mr. Susin in his fight to withhold the public records. As of November 1, 2023, a public records request revealed that Susin’s attorney fees exceeded $55,000, all of which are paid for by the taxpayers. The fees incurred for November and December since are substantial.
Susin incurs no out of pocket expenses for this case. In addition to that, should Jenkins win the case, her attorney shall be eligible for recovering her attorney’s fees as well. The underlying concern here is that no average citizen would ever be able to bring forward such a lawsuit to pursue the public records they legally have a right to.
Jenkins has to pay out of her own pocket to bring forward the case as would any other citizen. Susin has been heard on several occasions to state that, “we don’t have to give them up unless they sue us,” when referring to records he doesn’t want to produce.
Here are the facts as alleged in the complaint.
At all times relevant hereto, SUSIN used his personal cell phone for BOARD-related business.
SUSIN admitted during a November 22, 2022 board meeting that he was using his personal cell phone for BOARD-related business stating, “My district cell phone, the times and the months that was in question was over the summer. My district cell phone was broken. I had to bring it back in to have the district cell phone worked on. Our own IT person that’s inside of here fixed it and everything’s fine. So yes, until I had my district phone to use then I used my personal cell.”
Reporter Bailey Gallion has confirmed that SUSIN used his personal cell phone to discuss BOARD-related business.
The Brevard County Sheriff’s Office (BCSO) has produced records including text messages and seven calls between BCSO and SUSIN’s personal cell phone.
The BOARD has provided the phone bills for SUSIN’s district-issued phone, which included a phone log verifying that SUSIN’s district- issued phone neither received nor placed calls during the time from June to August 2022.
At his deposition on November 17, 2023, SUSIN testified that he used his personal cell phone to discuss Board-related business with Randy Fine, BCSO, reporter Bailey Gallion, the Florida Department of Education, and County Commissioner John Tobia.
PUBLIC RECORDS REQUEST #23-156 – Call Logs between SUSIN and Randy Fine – Personal cell phone logs not produced: On August 12, 2022, JENKINS made a public records request to the Defendants requesting, “[C]all log of Mr. Susin, both personal and school board issued. Calls to/from Randall ‘Randy’ Fine. Date range June 1, 2022 to present day (August 12, 2022).”
JENKINS requested the above records after Florida State Representative Randy Fine claimed a transgender student had committed a sexual assault on another student at Johnson Middle School and alleged that the staff of Brevard Public Schools knew about the event but failed to comply with mandatory reporting requirements. Fine’s accusations were sustained by public statements and private inquiries about the incident by SUSIN.
A weeks-long investigation by the Melbourne Police Department, found that the claim was “unfounded.” As Fine’s allegation began to unravel, in an effort to justify his claims, he and SUSIN intentionally publicized a past sexual assault incident at Space Coast Junior/ Senior High. This allegation of sexual assault was also found to be “unfounded” after an investigation by the Brevard County Sheriff’s Department. Fine’s allegations – and SUSIN’s support – came at time which certain politicians were focused on LGBTQ+ students.
The allegations resulted in dangerous public scrutiny to a precise minority group of children and Brevard Public Schools staff at specific schools who then received threats of violence and had to take extra security precautions.
On August 15, 2023, the BOARD records custodian acknowledged JENKINS’ request and on August 16, 2023 assigned it PRR # 23- 156.
On September 2, 2022, Holly Christmas, records custodian for the Board, responded, “There are no phone calls placed or received on Matt Susin’s district phone. I have attached them and an example of a district phone bill for another employee with calls placed and received. Mr. Susin will need to bring his personal phone to ESF in order for us to retrieve anything from it, and he would need to supply his personal phone bill for a call log.” (Emphasis added.)
On September 2, 2022, SUSIN stated in an email to Brevard County School Board Attorney Paul Gibbs, “I am not asserting any exemption regarding the requested phone logs. Rather, there simply are no public records to provide.”
On September 8, 2022, at a publicly noticed business meeting of the Brevard County School Board, SUSIN stated, “…the public records request was for a record that doesn’t exist and I put plain caselaw, just like other people who said this to her previously also and now I sent that to you for review right?…the public record doesn’t exist period.”
The BOARD then sought “an opinion as to the potential application of Florida’s Public Records Act to certain cell phone logs in connection with [JENKINS’] public records requests.” A memorandum drafted by John J Quick, Esq. to the BOARD dated October 28, 2022 concluded, “To the extent that any phone records might reflect calls including conversations which took place in connection with the School Board Member’s official business, the record of those calls should be produced in response to this public records request. However, if no phone calls took place in connection with the School Board Member’s official business, then those records would not be public records and, as a result, do not need to be produced. Should the phone records contain a mix of both public and private calls, all private calls should be redacted from the record and produced accordingly. Insofar as the School Board Member is unable to determine whether a call is either public or private in nature, then, in abundance of caution, the calls of undetermined nature should not be redacted from the records produced.” (Emphasis added.)
Pre-suit Notice: On February 8, 2023, both the BOARD and SUSIN received JENKINS’ “Notice of Unsatisfied Public Records Request And Intent To File Civil Action Pursuant to § 119.12, Florida Statutes And Public Records Request (Restated)” dated February 7,
On March 7, 2023, Plaintiff filed her initial complaint alleging a failure to provide records in response to PRR #23-156.
After suit, on September 19, 2023, 403 days after the public records request, Defendants provided an excel spreadsheet, purporting to represent the call logs requested. The newly created spreadsheet is not the document requested in its original form – an automated electronically maintained billing record or screen shot of SUSIN’s phone as required by § 119.01(2)(a), Florida Statutes. Further, the letter accompanying the spreadsheet stated that “Defendants do not concede that these documents are public records” or admit “that each of the calls identified … involved … any school board business” and “it is impossible to determine the nature and substance of each call reflected…”
On November 17, 2023, SUSIN testified at deposition that he created the excel spreadsheet by accessing his personal cell phone records through his cell phone provider website.
The created excel spreadsheet lists three calls between SUSIN with Randy Fine during the time frame set forth in PRR #23-156.
At no time have Defendants produced the actual phone logs requested PRR #23-156.
At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes. In fact, SUSIN stated in a September 2, 2022 email BOARD attorney Paul Gibbs that he has never intended to claim an exemption. SUSIN also stated in a September 9, 2022 email to Brevard County Superintendent Dr. Mark Mullins that, “I have never sent an email nor have I ever made a statement that my personal phone is exempt from public records.” (Emphasis added.)
PUBLIC RECORDS REQUEST #23-173 – Call logs between SUSIN and FDOE – Personal phone logs not produced: On August 19, 2022, JENKINS made a public records request to the Defendants requesting, “[T]he call log of all calls made to the FDOE (Florida Department of Education) made by Mr. Susin from both personal and/or district issued phones” from “June 21 to present.”
JENKINS requested the above records after an article pertaining to Fine’s claim that a transgendered student had committed sexual assault at Johnson Middle School was published by Florida Today on August 18, 2022 stating, “School Board Member Matt Susin said he has been in daily contact with the Florida Department of Education about an investigation into the allegations which became public last week when State Rep. Randy Fine sent a letter to Florida Education Commissioner Manny Diaz, Jr., repeating the claims of the transgender bathroom assault over the summer at Johnson Middle School.”
On August 22, 2022, the BOARD records custodian acknowledged JENKINS’ request and assigned it PRR #23-173.
On August 31, 2022, the BOARD records custodian advised, “There were no records found for [SUSIN’s] district phone. I did send him a reminder for the requests to his personal phone.” (Emphasis added.)
On September 2, 2022, JENKINS emailed the BOARD records custodian stating, “I am adding these logs be direct copies from the phone provider, not screen shots to ensure accuracy.”
On October 5, 2022, JENKINS emailed the BOARD records custodian stating, “Does Mr. Susin have a response to this records request? The BOARD records custodian replied on October 6, 2022, “I did not ask Mr. Susin for his personal cell phone log again after this email for this request. Would you like me to ask him again?”
On March 7, 2023, Plaintiff filed her initial complaint alleging a failure to provide records in response to PRR #23-173.
After suit, on September 19, 2023, 397 days after the request, Defendants advised that there were no calls made to the FDOE from SUSIN’s personal cell phone.
However, at his deposition on November 17, 2023, SUSIN testified that he did contact FDOE during the requested time frame. When asked why no records were produced and why his counsel had advised no calls were made, SUSIN speculated he must have used a phone “outside my personal phone.” Deposition video at appx 12:20.
At no time have Defendants produced phone logs in response to PRR #23-173.
At no time have Defendants explained the delay in the response as to SUSIN’s personal cell phone which is arguably a violation of their duty to make a good-faith response.
At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes. In fact, SUSIN stated in a September 2, 2022 email BOARD attorney Paul Gibbs that he has never intended to claim an exemption. SUSIN also stated in a September 9, 2022 email to Brevard County Superintendent Dr. Mark Mullins that, “I have never sent an email nor have I ever made a statement that my personal phone is exempt from public records.” (Emphasis added.)
PUBLIC RECORDS REQUEST #23-222 – Call logs and text messages between SUSIN and Reporter Gallion – Personal phone logs not produced – Text messages from personal cell phone timely produced: On September 9, 2022, JENKINS made a public records request to the Defendants requesting, “[A]ll phone calls and text messages to/from/between Matt Susin and Bailey Gallion, reporter at FL Today from the date range June 1, 2022 to present day (September 9, 2022) on both business and personal communication devices.”
JENKINS requested the above records after Reporter Gallion advised SUSIN had communicated with her on numerous occasions during the Johnson Middle School and Space Coast Junior/ Senior High sexual assault investigations using his personal cell phone.
On September 12, 2022, the BOARD records custodian acknowledged JENKINS’ request and assigned it PRR #23-222.
On September 26, 2022, the BOARD records custodian provided text messages between SUSIN and Reporter Gallion from SUSIN’s personal cell phone and stated, “Per Matt Susin, ‘Please find the attached text messages from my personal phone for PRR 23-222’” and “There are no phone calls or texts for Matt Susin’s business phone responsive to your request.” (Emphasis added.)
On September 26, 2022, JENKINS replied to the BOARD records custodian, “Can you clarify if there is no response to phone calls on personal phone for this request. I just want to response to be clearly in writing and not just based off my own interpretation.” The BOARD records custodian replied, “I will clarify with Mr. Susin.”
On March 7, 2023, Plaintiff filed her initial complaint alleging a failure to provide records in response to PRR #23-222.
After suit, on September 19, 2023, 375 days after the public records request, Defendants provided an excel spreadsheet, purporting to represent the call logs requested. The newly created spreadsheet is not the document requested in its original form – an automated electronically maintained billing record or screen shot of SUSIN’s phone as required by § 119.01(2)(a), Florida Statutes.
Further, the letter accompanying the spreadsheet stated that “Defendants do not concede that these documents are public records” or admit “that each of the calls identified … involved … any school board business” and “it is impossible to determine the nature and substance of each call reflected…”
On November 17, 2023, SUSIN testified at deposition that he created the excel spreadsheet by accessing his personal cell phone records through his cell phone provider website.
The created excel spreadsheet shows 18 calls between SUSIN and Bailey Gallion within the requested time frame.
To date, Defendants have not produced the actual phone calls (logs) in response to PRR #23-222.
At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes.
PUBLIC RECORDS REQUEST #23-377 – Text, email, and phone logs between SUSIN and BCSO – Not produced: On November 25, 2022, JENKINS made a public records request to the Defendants requesting, “[A]ll communication including text, email, and phone logs of calls received and sent to BCSO from Matt Susin on both business and/ or personal cell phones from August 1, 2022 to August 18, 2022.”
JENKINS requested the above records after Reporter Gallion advised SUSIN had communicated with her on numerous occasions during the Johnson Middle School and Space Coast Junior/ Senior High sexual assault investigations using his personal cell phone.
Further, Reporter Gallion advised SUSIN called and provided her with the Brevard County Sheriff’s Office (BCSO) investigation file case number regarding the sexual assault claim that allegedly occurred at Space Coast Junior/ Senior High and encouraged her to review it.
On November 29, 2022, the BOARD records custodian acknowledged JENKINS’ request and assigned it PRR #23-377.
In January 2023, the BOARD altered its public records request procedures pertaining to requests made from an individual School Board member of another school board member(s). The BOARD required requests made by an individual school board member of another school board member(s) be forwarded by the records custodian of the BOARD, Holly Christmas, to John J Quick, Esq., council of the BOARD. Mr. Quick communicated directly with the records custodian of the BOARD, the school board member requestor, and the school board member respondent(s) of the public records request.
On January 19, 2023, 57 days after the request, the BOARD records custodian provided a record of the August 2022 phone bill for SUSIN’s district phone, advising, “[t]here were no emails or texts responsive to your requests,” and “[t]he School Board of Brevard County does not have access to personal cell phone records. Any records available for personal devices or accounts will be sent by Mr. Quick.” (Emphasis added.)
A later public records request conformed that the individuals who accessed the BCSO investigation file of the sexual assault alleged at Space Coast Junior / Senior High included Randy Fine and Reporter Bailey Gallion who accessed it on August 16, 2022.
Pre-suit Notice: On February 8, 2023, both the BOARD and SUSIN received JENKINS’ “Notice of Unsatisfied Public Records Request And Intent To File Civil Action Pursuant to § 119.12, Florida Statutes And Public Records Request (Restated)” dated February 7, 2023 pertaining to Public Record Requests #23-156, 23-173, 23- 222, and 23-377.
On February 10, 2023, 79 days after the request, BOARD Attorney Quick emailed JENKINS stating, “I have been advised that there are no responsive documents to those requests.” Later, on February 16, 2023, Mr. QUICK clarified, “This response related to Chair Susin’s personal phone. Records from his District phone which are responsive will be forthcoming.” (Emphasis added.)
On February 14, 2023, Brevard County Sheriff’s Office (BCSO) responded to a public records request from JENKINS that requested the same communications: “[A]ny incoming and outgoing calls and emails to/from Matthew Susin from the date range August 1, 2022 to August 18, 2022.” BCSO’s response contained a phone log of 7 calls between SUSINS’s personal cell phone and BCSO during the time frame of the records request, specifically on August 14, 2022 and August 15, 2022.
On March 7, 2023, Plaintiff filed her initial complaint alleging a failure to provide records in response to PRR #23-377.
After suit, on September 19, 2023, 300 days after the public records request, Defendants provided an excel spreadsheet, purporting to represent the call logs requested. The newly created spreadsheet is not the document requested in its original form – an automated electronically maintained billing record or screen shot of SUSIN’s phone as required by § 119.01(2)(a), Florida Statutes.
Further, the letter accompanying the spreadsheet stated that “Defendants do not concede that these documents are public records” or admit “that each of the calls identified … involved … any school board business” and “it is impossible to determine the nature and substance of each call reflected…”he created excel spreadsheet shows 9 calls between SUSIN and BCSO within the requested time frame.At no time have Defendant’s provided the actual requested records. At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes.
Public Records Request #23-904 – Phone calls, text messages, and emails between SUSIN and Commissioner Tobia – Personal phone logs not produced – Text messages from personal phone untimely produced – Emails not produced: On June 1, 2023, JENKINS made a public records request to the Defendants requesting, “[A]ll phone calls, texts, and/ or emails between John Tobia and Matthew Susin from the date range of 03/01/2023 to present day regarding any communication about school board and school board redistricting.”
JENKINS made the above request after both SUSIN and Brevard County Commissioner John Tobia made similar, but separate, public statements that the Brevard County Commission had offered to pay for the cost associated with redistricting the Brevard County School District.3
On June 5, 2023, the BOARD records custodian acknowledged JENKINS’ request and assigned it PRR #23-904.
Also on June 1, 2023, JENKINS sent an identical request to Brevard County Commissioner John Tobia who responded on the same day with screenshots, transcripts of text messages, and phone calls from his personal cell phone. However, some items provided by Commissioner Tobia were not in their original format and appeared to be incomplete communications.
On June 30, 2023, JENKINS sent an email to the BOARD records custodian inquiring about the status PRR #23-904.
On July 6, 2023, attorney John Quick sent JENKINS an email addressing a different request but continued by acknowledging JENKINS’ request for SUSIN-Tobia communications (#23-904)
The redistricting plan eventually passed and changed the district lines such that Ms. JENKINS will no longer live in her district. stating, “Separately, I am aware of your other records request related to communications with John Tobia and expect to respond to that shortly.”
On July 11, 2023, 40 days after the request, SUSIN stated during a Board meeting that he had not yet had time to respond to the request (#23-904). JENKINS advised SUSIN that Mr. Tobia had received an identical request on the same day, June 1st, and had responded within hours.
After the Board meeting, SUSIN, who appeared to have just learned that Commissioner Tobia had responded to an identical request, was seen waiting in the back of the County Commission chambers on his phone and approaching Commissioner Tobia when the Brevard County Commission meeting had concluded.
During his deposition on November 17, 2023, when asked if he talked to Commissioner Tobia after the July 11, 2023 meeting he replied, “not that I know of.” However, SUSINS’ attendance at the meeting is documented in the video of the Brevard County Commission meeting on July 11, 2023.
On July 14, 2023, JENKINS emailed attorney John Quick about the unfulfilled request, stating, “This request was brought up publicly at the board meeting Tuesday (July 11th) because Mr. Susin placed an agenda item for voting on redistricting fees.4 Mr. Susin said “he hasn’t had time yet” to respond to the request. It has now been about 40 days since the request was sent. Unless Mr. Susin communicates incessantly with Mr. Tobia, this is unacceptable.”
Pre-Suit Notice: On July 18, 2023, JENKINS sent the BOARD, SUSIN, and counsel for the BOARD and SUSIN, Randy Mora, JENKINS’ “Notice of Unsatisfied Public Records Request And Intent To File Civil Action Pursuant to § 119.12, Florida Statutes And Public Records Request (Restated)” pertaining to PRR #23-904 by email. On July 20, 2023, the BOARD, SUSIN, and Mr. Mora, received copies of the Notice by certified email.
On July 31, 2023, Plaintiff’s counsel filed Plaintiff’s Motion For Leave To File Second Amended Complaint [Dkt. 22] seeking to the add failure to respond to PRR #23-904.
On August 4, 2023, 64 days after the request and 19 days after notice, Defendants, through Attorney Quick, provided screen shots of text messages between SUSIN and Tobia in response to request #23-904.
At his deposition on November 3, 2023, Commissioner Tobia testified that SUSIN had asked him for his response to the June 1, 2023 public records request and that he (Tobia) had provided it to SUSIN by email. At his second deposition on December 14, 2023, Commissioner Tobia testified he has sent his response to the June 1, 2023 public records request to SUSIN by mail.
(SUSIN moved to allow the fee associated with redistricting the Brevard County School Board to be paid for by the Brevard County Commission, as offered, but the motion did not pass.)
After suit, on September 19, 2023, 110 days after the public records request, Defendants provided an excel spreadsheet, purporting to represent the call logs requested. The newly created spreadsheet is not the document requested in its original form – an automated electronically maintained billing record or screen shot of SUSIN’s phone as required by § 119.01(2)(a), Florida Statutes.
Further, the letter accompanying the spreadsheet stated that “Defendants do not concede that these documents are public records” or admit “that each of the calls identified … involved … any school board business” and “it is impossible to determine the nature and substance of each call reflected…”
The created excel spreadsheet shows 11 calls between SUSIN and Tobia within the requested time frame.
At no time have Defendants produced the call logs in response to PRR #23-904.
At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes.
PUBLIC RECORDS REQUEST #24-176 – Phone, text, and email communications between SUSIN and Commissioner Tobia – Not produced: On August 2, 2023, JENKINS sent a public records request to the Defendants requesting, “[A]ll communication (phone, text, email) between, to/from Matthew Susin and John Tobia from the date range June 1, 2023 to present day [August 2, 2023.]”
JENKINS made the above request after several observations indicated that SUSIN was attempting to correlate his response to her June 1, 2023 public records request, PRR #23-904, with Commissioner Tobia, to wit: Following the July 11, 2022 Board meeting in which SUSIN stated that he had not yet had time to respond to PRR #23-904 and JENKINS advised him that Commissioner Tobia had received an identical request on the same day and responded within hours, SUSIN, who appeared to have just learned that Commissioner Tobia had responded to an identical request, was seen waiting in the back of the County Commission chambers on his phone and approaching Commissioner Tobia when the Brevard County Commission meeting had concluded. SUSINS’ attendance at the meeting is documented in the video of the Brevard County Commission Meeting on July 11, 2023.
On August 8, 2023, the BOARD records custodian acknowledged JENKINS’ request and assigned it PRR #24-176.
On August 31, 2023, the Defendants, through attorney John J Quick, advised, “there are no documents responsive to this request.”
However, on August 3, 2023, JENKINS had made a nearly identical public records request to Commissioner Tobia requesting, “I would like to request all communication (phone, text, email) regarding official board business between Matthew Susin and John Tobia from June 1, 2023 to present day [August 3].” On August 24, 2023, Commissioner Tobia responded by providing text messages and emails.
Pre-Suit Notice: On September 6, 2023, JENKINS sent the BOARD, SUSIN, and counsel for the BOARD and SUSIN, Randy Mora, JENKINS’ “Notice of Unsatisfied Public Records Request And Intent To File Civil Action Pursuant to § 119.12, Florida Statutes (Five-Day, Presuit Notice) And Demand To Obtain And Preserve Evidence” by email. The Notice was received by the BOARD and Mr. Mora on September 8 and by Mr. Quick and on September 11, 2023 by certified mail.
On September 22, 2023, JENKINS filed a motion for leave to amend the complaint to add the violation of PRR # 24-176. [Dkt. 32.]
On November 1, 2023, the Court granted JENKINS’ motion for leave to amend the complaint and the violation of PRR #24-176 was added. [Dkt. 52.]
At no time have Defendants provided any records.
At no time have Defendants claimed an exemption to Chapter 119, Florida Statutes.
On December 14, 2023, the BOARD records custodian, Holly Christmas, testified at deposition that, in sum, the BOARD does not have a procedure in place to enforce and insure full or prompt compliance by individual employees or officials, and, further, that the BOARD does not have a procedure in place to resolve disputes between individual employees or officials and the public.
The complaint then goes on to allege 18 counts of violations of the law.
As the discovery process continues, the defense will have an opportunity to respond to the complaint. A hearing has still yet to be set for Randy Fine’s contempt of court motion.
