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IN THE COUNTY COURT OF THE 18 JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA

CASE NO:
ECONOMIC DEVELOPMENT COMMIS SION OF FLORIDA'S SPACE COAST, a Florida Non Profit Corporation,
Plaintiff,

SCOTT ELLIS, CLERK OF THE COURT FOR BREVARD COUNTY, a Charter Officer, and BLUEWARE, INC., a Foreign Corporation,
Defendants.

COMPLAINT
Plaintiff, ECONOMIC DEVELOPMENT COMMISSION OF FLORIDA'S SPACE

COAST, a Florida Non Profit Corporation, (the "EDC") files this action against Defendants

SCOTT ELLIS, CLERK OF THE COURT FOR BREVARD COUNTY ("CLERK"), a Charter
Officer, and BLUEWARE, INC. ('BLUEWARE"), a Foreign Corporation, and states:

1.

This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes,

and for equitable relief.

Plaintiff, EDC, is a Non Profit Corporation operating and doing business in

Brevard County, Florida, and is a "economic development

agency" as defined in

) 288.075(1)(a),

Fla. Stat. (2011).


Defendant, CLERK, is an elected Charter Officer in and for

of Brevard County,

Florida.

4.

Defendant, BLUEWARE, is a Foreign Corporation, operating and doing business

in Brevard County, Florida.

5.
Confidentiality

On or about January

31, 2012, Defendant, BLUEWARE, submitted a

Request to Plaintiff, EDC, pursuant to

) 288.075, Fla. Stat. (2011) (the


"A".

"Initial

Request"

).

A copy of the Initial Request is attached hereto as Exhibit

6.

The Initial Request called for the EDC to maintain BLUEWARE's information
or interests to "locate, relocate or expand" any
and exempt from $

regarding BLUEWARE's intentions

of its

business activities in the State

of Florida as confidential

119.07(1),Fla. Stat.
in the

(2011) for a period of twelve (12) months. BLUEWARE's information was identified
Initial Request to include without limitation, "records, reports, documents

and data in whatever

form."

7.

On January

11, 2013, BLUEWARE faxed to

the EDC a request to extend for

twelve (12) months the Initial Request to hold confidential BLUEWARE's information

concerning its business plans, interests or intention to evaluate or locate in Florida (the

"Extension Request"

).

The Extension Request also asked the EDC to hold confidential "all other
account, and registration numbers, and proprietary
confidential

trade secrets, identification,

business information," and attached a copy

of the Initial Request. A copy of the Extension


Requests" ) is attached hereto as

Request with the Initial Request (together, the "Confidentiality

Exhlblt

"B".
8.
Defendant, CLERK, by electronic mail dated January 17, 2013, sought documents
related to Defendant, BLUEWARE, and its affiliated corporate entities. A copy
mail is attached hereto as Exhibit

and information

of the electronic

"C".

9.

Plaintiff, EDC, by letter dated January 24, 2013, responded to CLERK's request

for copies of documents related to BLUEWARE, advised CLERK that the documents held by

EDC was confidential and exempt from disclosure and provided a legal memorandum
the position of the EDC. A copy of the letter and memorandum

to explain

are attached as Exhibit

"D".

10.

On August 27, 2013, agents

of Defendant, CLERK, presented

at the office

of the

EDC and again demanded the documents and information related to Defendant, BLUEWARE,
and its affiliated corporate entities.

11.
information
understanding

Plaintiff, EDC, on August 27, 2013, again declined to provide documents or

of BLUEWARE or its affiliated entities to CLERK, based


that BLUEWARE's information

upon the EDC's

regarding its intentions or interests to "locate,

relocate or expand" in Florida, its trade secrets and proprietary confidential business information
was exempt from disclosure pursuant to $ 288.075, Fla, Stat.

(2011).

12.
responsibilities
construe

The EDC has been challenged and seeks clarification as to its rights and
under BLUEWARE's Confidentiality

Requests, and implores the Court to

) 288.075, Fla.

Stat. (2011), to determine its validity and to declare if any documents or


that is in the possession

information

of BLUEWARE

of the EDC must be disclosed

as a public

record under $ 119.07(1),Fla. Stat. (2011).

13.

The EDC seeks a declaration regarding the immunity,

power, privileges, or rights


under the

of the Defendants, dependent upon the facts and the law applicable to the facts,
following statutory provisions of $ 288.075, Fla. Stat.

(2011):

(2)
(a)

PLANS, INTENTIONS, AND INTERESTS.

Upon written request from a private corporation, partnership, or person, information held by an economic development agency concerning plans, intentions, or interests of such private corporation, partnership, or person to locate, relocate, or expand any of its business activities in this state is confidential and exempt from s. 119.07(1)and s. 24(a), Art. I of the State Constitution for 12 months after the date an economic development agency receives a request for confidentiality or until the information is otherwise disclosed, whichever occurs first.

(b) An economic development agency may extend the period of confidentiality specified in paragraph (a) for up to an additional 12 months upon written request from the private corporation, partnership, or person who originally requested confidentiality under this section and upon a finding by the economic development agency that such private corporation, partnership, or person is still actively considering locating, relocating, or expanding its business activities in this state. Such a request for an extension in the period of confidentiality must be

received prior to the expiration this section.

of any confidentiality

originally provided under

(3) TRADE SECRETS. Trade secrets held by an economic development agency are confidential and exempt from s. 119,07(1)and s. 24(a), Art. I of the
State Constitution.

PROPRIETARY CONFIDENTIAL BUSINESS INFORMATION. Proprietary confidential business information held by an economic development agency is confidential and exempt from s. 119.07(1)and s. 24(a), Art. I of the

(4)

State Constitution, until such information is otherwise publicly available or is no longer treated by the proprietor as proprietary confidential business information.

A (5) IDENTIFICATION, ACCOUNT, AND REGISTRATION NUMBERS. federal employer identification number, unemployment compensation account number, or Florida sales tax registration number held by an economic development agency is confidential and exempt from s. 119.07(1)and s. 24(a), Art. I of the State Constitution.

(6) ECONOMIC INCENTIVE PROGRAMS.


The following information held by an economic development agency pursuant to the administration of an economic incentive program for qualified businesses is confidential and exempt from s. 119.07(1)and s. 24(a), Art. I of the State Constitution for a period not to exceed the duration of the incentive agreement, including an agreement authorizing a tax refund or tax credit, or upon termination of the incentive agreement:

(a)

Any person who is an employee of an economic (7) PENALTIES.

development agency who violates the provisions of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s.

775.083.
14.
There exists a bona fide dispute between the EDC and the CLERK, and a present

and practical need for a declaration by the Court.

15.

Because of the continual harassment by the CLERK, causing the disruption of

business at the EDC, the EDC must have resolution

of this dispute.

16.

The declaration deals with a present, ascertained, or ascertainable state of facts, or

present controversy as to a state

of facts

17.
the Court.

All persons with adverse interests to the declaration sought by the EDC are before

18.

The relief sought is not merely the giving of legal advice by the courts or the
from curiosity.

answer to questions propounded

19.

The EDC is entitled to a declaration as to whether it must disclose, in whole or in


conversations,
applications,

part, BLUEWARE's documents, records, reports, correspondence,


data, other sources

of information concerning

its business plans, interests, or intention to evaluate

or locate in Florida, its other trade secrets, identification,


proprietary

account, registration numbers and

confidential business information

(cumulatively,

"Protected Information" ), to the

CLERK.

20.

Further, the EDC requests direction from the Court, or a Special Master appointed

by the Court, as to whether the EDC must disclose, in whole or in part, the Protected Information
after the Confidentiality

Requests expire, or whether the Protected Information,

in whole or in

part, remains exempt under

) 288.075(3), (4) and

(5), Fla. Stat,


that the Court order a

21.
speedy hearing

Pursuant to $

86.111,Fla. Stat. (2013), the EDC requests

of this action for a declaratory

judgment and advance it on the Court's calendar

for hearing.

WHEREFORE, Plaintiff, the EDC, seeks a declaratory judgment setting forth the rights
and obligations

of the parties to this litigation,

awarding costs

of this action, and providing for

all

other relief deemed just and proper by the Court.

DATED:

August~,

2013.
DEAN ME

Kllvg3ERLY BONDER REZANKA 82 0 Devereux Drive, Suite 100 Viera, FL 32940

(321) 259-8900 (321) 254-4479 Fla. Bar No. 930342 ATTORNEYS FOR PLAINTIFF

CONFIDENTIALITY REQUEST PURSUANT TO SECTlON 288 075. FLORIDA STATUTES


Under Section 288 075, Florida Statutes, upon written request from a private corporation, partnership or person (a "Requesting Party" ), information held by the Economic Development Commission of Florida's Space Coast (the "EDC') concerning plans, intentions or interest of such Requesting Party to locate, relocate or expand any of its business activities in the State of Florida is confidential and exempt from Section I l 9 07(l), Florida Statutes, and Section 24(a), Article I, of the Florida Constitution, for twelve (t2) months after the date the EDC receives a request for confidentiality or until the information is otherwise disclosed, whichever occurs first

Under Section 288 075, the EDC may extend the period of confidentiality for up to an additional twelve (12) months upon written request from a Requesting Party and upon a finding by the EDC that such Requesting Party is still actively considering locating, relocating or expanding its business activities in Florida Such a request for an extension in the period of confidentiality must be received prior to the expiration of the period of confidentiality onginally provided under section 288 075
Having been advised of the foregoing, the undersigned hereby requests that any and all information (including without limitation records, reports, documents and data in whatever form) held by the EDC concerning the undersigned's plans, intentions or interests to locate, relocate or expand any of its business activities in the state of Florida be l&ept confidential and be withheld from disclosure by the EDC as provided for in Section 288 075, Flonda Statutes

Name

Rose Harr. CEO R President of BlueWare f Prospect) (Printed Na


/teal

Signature

Date

BI, 4~AN/in

Prospect File No EDC- l 003119

a/Ol

20t3 22 48

FAX

GRAND

HOTEL EASTBOURNE

aha 8

January

11, 2013

Ms Lynda Weatherman President 8 CEO EOC of Florida's Space Coast 587 Haverty Court Suite 40 Rocidedge, FL 32955 US

Dear Ms Vleatherman,
On behalf of Blue%are inc, please accept this letter as a request to extend the agreement to hold confidential all documents, records, reports, correspondence, conversations, applications, data and other sources of information concerning our business plans, interests, or intention to evaluate or locate in Ronde as well as other trade secrets, identification, account, and registration numbers, and propnetary confidential business information be pursuant to section 288075, Florida Statutes for a penod of 1Z months after the date of recept of this request for extended confidentiality or until the information is otherwise disclosed, whichever occurs first

Slncer

e Herr
esident 8 CEO

etta chm ant(s)

11/'01 2013 22 49

FAX

GRAND

HOTEL EASTBOURNE

CQNFfDENTfALITY REQUEST PURSUANT TO SECTfQN 288 075, FLORfDA STATUTES


Under Section 288.075, Florfde, Statutes, upon written request from a private corporation, partnership ar person (a "Requesting Party" ), tnformatian held by the Economic Development Commission of Florida's Space Coast (the "EDC") concernfng plans, intentions or interest of such Requesting Party to locate, relocate or expand any of fts business actfvfties in the State af Florida is congdenaal and exempt fram Section I f 9 07(f), Florida Statutes, and Sectfon 24(a), Aracfe 1, of the Florida Canstitutfon, far twelve (l2) months after the date the EDC recefves a request far confidentiality ar until the information is atherwfse discfased, whichever occurs first,

Under Secoan 288 075, the EDC may extend the periad af confldentfahty foi'p ta an additional twelve (1 2) manths upon written request from a Requesting Party and upon a findfng by the EDC that such Requesting Party fs stiff activety considering locating, relocating or expanding its business acovioes ln Florida. Such a request far an extensfan in the period of confjdenrfahty must be received prior to the expfration of the period of confidentiality origfnaffy provided under section 288 075
undersigned hereby requests that any and all limitation records, reports, documents and data fn whatever information (fnrluding without s plans, intentions or interests ta locate, the EDC concerning the undersigned farm) held by relocate or expand any of its busfness acovitfes in the state af Flarfda be kept confidential and be withheld from disclosure by the EDC as pravided for in Sectfan 288 075Florida Statutes
Having been advised

af the foregoing, the

Name. Rose Harr. CEO 5 President of Blue%are f Praip acr}, (Prated Na


Signature.

S(

~~fAAY~Z.
c'ate

~12

Prospect Fife Na EDC-1003119

mailto Bar Carmichael@brevardclerk Thursday, january 17, 2013 4 59 PM To Trudy McCarthy Cc Scott Ellis, Tyler Winik Subject Request
I

From Bart Carmichael

us1

Sent

TO

Trudy

McCarthy

Senior Director Operations


From

Bart Carmichael
interna
I

Audit

Date
RE

January 17, 2013

Records Request for BlueGem/BlueWare/

RoseWare/ ProJect FATES

Dear Ms McCarthy
As a follow-up

to our meeting last week, am formally requesting all documents and other information that the Space Coast EDC has related to the ProJect Fates, Blue Gem, Blue Ware, Rose Ware and related companies As you informed me, some of this information may be covered by confidentiality agreements, please include the dates when the confidentiality agreements expire in the letter requested below Please forward any other information that is not covered under the confidentiality agreements
I

the event that the EDC can't provide all of this information for any reason, Scott Ellis, Clerk of Court has asked for a letter signed by Lynda Weatherman in her official capacity at the Space Coast EDC that explains and provides full details why we cannot have the paper work related to the FATES proJect and the BlueGem and related companies
In

Should you have any questions, please contact me at your earliest convenience

can be reached by return email or at

the Clerk's office at extension 49028


Sincerely,

Bart Carmichael
Internal Audit

Scott Ellis, Clerk


Brevard County Clerk of Court

400 South Street


Titusville, Flonda

Telephone

32780 (321) 637-5413 x49028

ECONObri(C DEVELOPMENT CQhAkA(SSION

OP

PLORIOAS SPACE COAST

january 24,

2013

Scott

Ellis, C(er(&

Brevard County Clerk of Court 400 South Sti eet Titusvil(e, Flonda 32780

Dear Nr Blis,
am in receipt of your i equest for the Economic Development Commission of Florida's Space Coast (EDC) to provide copies of documents related to Pi olect Fates, Blue Gem, Blue Ware, Rase Wai e and related companies
1

Upon review of your request, the EDC legal counsel has advised the information held by the EDC is cui rently both confidentia( and exempt from disdosui e as noted in the attached memorandum from Dean Mead
Than(&you

S(ncere(y, i'

rman President 8: CEO

~cathe

&97 HoTrerty Court Svtie s(0


Rock(edge, Flora(a 32955
Phone
Toli Free

(321) TS38 2000


(8001 5N 0203

Fax (321l 633 s(200


uww SpaceCoaetEOC org

DEAN
It(E
AD

Dean Mead 8240 Devereux Dnve Suite 100 Vtera, FL 32940

Orlando

Fort Pierce
Vtera Gaineavtlte

(321) 259-8900 (321) 254 4479


Ivvvr deanmead

R MASON BLAKE

(321) 751 6101


corn

MBlake@deanmead

corn

DATE

Januaty 24, 2013


Lynda Weathernlan

TO

R Mason Blake
Chaptei

119 Request Iecelved fiom Bait Calmlchael of Blevaid County Clei k's

Office
On ol about, Jatluary 17 2013, yolu offlcc received Iequest fiom Bart Canluchael of the Blevaid County Clelk's olfice "foimally iequestlng all docuinents and othei infoimatlon'hat the Economic Development Commission of Flol ida's Space Coast (the '"EDC") has i elated to the "Project Fates, Blue Gem, Blue 5'ate, Rose%ate and lelated companies" Each of these ntunes is a fictitious name under which Blue%ate, Inc, a client/piospect the EDC is assistmg m its ielocatlon and/ol expansion effoits, docs busmess Although not specified by Mr Catinlchael& pl csumably this request was made puisuant to chaptel 119, Floilda Statutes, Floi ida's public lecoids law %C kiiow of no other basis upon which Mi Carnuchael could assert the right to receive the i equcsted infornlation
Although chaptei 119 is designed to piovlde the pubhc with extensive access to public recoids, the iecolds requested by Mt Cainuchael aie confidential and exelnpt f lorn the dlsclosuie lequnements of chaptei 119 (assummg they wcie otherwise subJect to disclosuie undei chaptei 219) Subsection 288 075(2)(a), Floiida Statutes, provides that upon wiltten iequest fiom any client/piospect, "nlformation held by an economic development agency concernmg plans, intentions, or ulteiest of such private coiyoiatton partnership oi peison fo, locate, relocate, oi expand any of its business activities in tins state ls confidential and exenint fioni s 119 07{'17'oi a pet iod of t&velve (12) months aftei the date the economic development Subsection 288 075(2)(b) agency receives a request foi confidentiahty (emphasis supphed) fluthcl'rovIdes that a11y ccollon11c development agcl'icy nlay extend such period of confidentiahty foi an additional twelve (12) months upon the written request from the apphcable chent/piospect upon findmg that chcnt/pl,ospect is still actively considcimg locating, relocatmg or expanding its busIncss activities nl this state

Memorandum

Page 2

In the case of Blue%are, Inc., it executed and delivered a confidentiality request pursuant to Section 288,075 on or about January 3'1, 2012 in accordance with the requirements of subsection 288,075(2)(a). Accordingly, the exemption provided for under subsection 288,075(2)(a) is currently in effect and does not expire until January 31, 2013,

In addition to the subsection 288,075(2) exemption &om the disclosure requirements of chapter 119, additional exemptions to chapter 119 may be applicable to information held by the EDC with respect to Blue%are, Inc. In particular, subsection 288.075(3) provides that "trade secrets'" held by an economic development agency are confidential and exempt. Subsection 288.075(4) provides that proprietary confidential business information" is also con6dential and exempt fiorn disclosure under chapter 119, Lastly, subsection 288.075(6) contains an exemption for a broad variety of information ("Subsection 288,076(6) Information"} conceriring businesses which is held by aii economic development agency pursuant to the administration of an economic incentive program, %e understand Blueware, Inc, has received various economic incentives; which would make the exemption set forth in subsection 288.076(6) applicable to Subsection 288.076(6) Information of Blue%are, Inc. held by the EDC. Please note that there are ilo time limitations applicable to the exemptions pl'ovided for in subsections 288,075(3) and (4). The exemption provided for in subsection 288,075(6} is effective for the duration of the applicable incentive agreemeiit,
held by the EDC concerning the plans, intentions or interests any of its business activities (regardless of the names under which such business may be conducted) in Florida, as well as all trade secrets and proprietary confidential business information and Subsection 288,075(6) Information of Blue%are, Inc. held by the EDC, are currently both (i) confidential, and (ii) exempt from

In summary, all information

of Blue%are, Inc. to locate, relocate or expand

disclosiue under chapter 119, Florida Statutes.

RMB:mm

Cc;

Trudy McCarthy

V01846'20,1