Today, a Brevard County Judge Naberhouse heard arguments on a motion to dismiss filed by Brevard School Board Chair, Matt Susin, in response to a suit filed by School Board Member Jennifer Jenkins for the release of public records.

The suit came after Susin publicly referenced calls and text messages during school board meetings, and Jenkins’ requests for the corresponding phone logs and messages went largely without response. Susin stated that he often spoke with the Florida Department of Education, Representative Randy Fine, and others about specific official business being discussed and voted on by the school board, often to support his positions and arguments on the board.

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Jenkins’ initial request came after Fine alleged that a transgender student had committed a sexual assault at Johnson Middle School, that BPS staff intentionally did not report it, and that a school board member spoke with him about it – a claim that turned out to be false after a three-week police investigation but generated public outrage to the extent that it was a potential safety concern for students and teachers. In all, the requested public records potentially reflect on Susin’s credibility and his coordination with other officials.

Jenkins waited for months for Susin to respond to the requests, even addressing them publicly multiple times during school board meetings, giving him multiple opportunities to respond to her very specific public records requests. She didn’t just request the records from him; she also requested them from the agencies Susin claimed he communicated with, including the Brevard County Sheriff’s Office, State Rep Randy Fine, the Florida DOE, and Commissioner John Tobia.

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Jenkins’ initial complaint was only filed after months of resistance from Susin. Susin’s argument is that the records are not public records because call logs don’t tell the substance of the calls. Jenkins argued that the call logs can tell when, how long, and with whom Susin communicated. Arguably, it can prove if the alleged conversation even took place at all.

Jenkins hired attorney Jessica Travis with Defendbrevard.com to bring the lawsuit. Susin is defending himself for refusing to comply with attorneys engaged by the Brevard County School Board and funded by the taxpayers.

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Prior to the lawsuit, Chair Susin asked the board attorney to request the opinion of an outside attorney on whether or not the records were public records. The opinion came back clearly indicating that business conducted on a personal device should be provided, with personal communication redacted. The opinion goes further to state that Mr. Susin publicly stated he would not be able to discern which calls were personal or business, so it advised the records not be redacted. Susin still refused to provide the records, stating at a board meeting he wanted to now get an opinion from the Attorney General’s office.

The heart of the suit is whether board-related business calls conducted on a personal cell phone are subject to public records requests under Sunshine Law. Additionally, Mrs. Jenkins alleges Mr. Susin failed to respond to some requests in totality and falsely responded to some requests. One complaint references a request for communication with BCSO during the time of the infamous discipline video held in front of a prison, to which Mr. Susin responded that no records existed. However, the Sheriff himself provided a litany of text messages, phone records, and otherwise contradicting Susin’s statements.

Since filing the suit, Jenkins requested communications surrounding the redistricting of school board member districts between Susin and Commissioner John Tobia. Tobia responded to the request within hours, producing text messages and a list of phone calls. When Jenkins brought up the length of time that had passed since her request publicly at a board meeting, Susin stated, “he hasn’t had time to respond.” Over 60 days passed before Susin responded to the same request. In fact, according to records, Susin called Tobia on numerous occasions after Jenkins publicly stated she received Tobia’s records within hours, to inquire about the exact records Tobia provided in response to the request.

The foundation of Susin’s motion to dismiss, argued by his board-funded attorney, Randy Mora, was that “phone logs are created by a 3rd party and not a record created by the agent (Matt Susin), hence they do not fit the legal definition of a public record.” He also argued that a phone record, showing a phone call happened, does not reveal what the phone call was about, so it can’t be determined whether it was related to official business or not.

“He could be calling to ask if he wants to go to Chik-fil-a, or he could be calling to talk about the budget,” his attorney argued. He stated it would be a large burden to keep track of what calls were official or not. He emphatically stated that his client was not trying to be evasive or hide anything; he’s just making a legal argument that they are not public records.

Attorney Jessica Travis argued Susin’s motives were revealed when he claimed records did not exist, but the same request to the Sheriff resulted in BCSO providing records related to Susin’s personal cellphone. “Are we just supposed to take his word for it?” Travis argued.

Travis also argued that Susin had the responsibility under state law to screenshot the log of calls on his phone or obtain billing or call logs from his service provider because he made the records by conducting official business. The law is clear that it is up to the custodian of the record, in this case, Susin, to maintain those records, regardless of the burden created by it.

This is also why elected officials are encouraged not to conduct official business on personal devices. Secondly, when there is a burden or extensive time needed to respond to a record, the agency charges a fee to the citizen requesting the record to cover that.

“Citizens have a right to inspect public records to ensure their elected officials are working in the best interest of the community they swore to serve,” Travis told us after the hearing.

The argument that the record of phone logs is created by the phone company and not the agent seems illogical at best. A “copy” of the record is certainly produced by the phone company, but the record would not exist if the agent never made the phone call. Under the logic of his argument, that would mean phone logs from his official cell phone are also exempt from public records requests, or even phone logs to the lobby of the school district for that matter.

Jenkins’ complaint alleges Susin’s district-issued phone records during the time in question identified no incoming or outgoing calls. Jenkins addressed this publicly at the November 22, 2022 board meeting and Susin responded, “My district cell phone, the times and the months that were in question were 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 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 and I provided all of those texts and all of that information off of there. There is no hiding conversations…”

The judge will consider the arguments during the rest of the week, and a ruling on Susin’s motion to dismiss is expected next week.

There is a question of whether or not Susin should enjoy the use of taxpayer funds to fund his defense, as this is a case brought forward solely on his refusal to provide the public records. Should the judge rule against him, Susin is likely to appeal to the highest court, which would result in astronomical attorney’s fees.

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