Tennessee sued over access to covid-19 report

NASHVILLE, Tenn. — The state of Tennessee is facing a lawsuit over its decision to deny public access to a report recommending how to respond to the covid-19 pandemic that a contractor undertook at the request of Gov. Bill Lee’s administration.

The Public Citizen Litigation Group helped file the lawsuit in Davidson County Chancery Court against the state’s Department of Human Resources last week over its decision to deny a public records request for the document prepared by McKinsey & Co. The records request was filed by the plaintiff in the case, Thomas Wesley, a state employee who filed the request as a Tennessee citizen, according to Wendy Liu, an attorney with the group.

The consulting firm was required to provide a “government efficiency assessment and review to identify potential performance improvements and assist the state’s response to the COVID-19 pandemic including but not limited to cost efficiency, citizen and state employee experience, overall government effectiveness, state government department review, and fiscal benchmarking and forecasting.”

Court documents show an attorney for the Department of Human Resources denied the request in September shortly after it was filed, saying the records are “subject to the deliberative process privilege and contain confidential information that is subject to the exception for information regarding operational vulnerabilities.”

The lawsuit counters that the report does not fall under a deliberative process exemption, which the attorneys note isn’t in state law or rules but was described in a 2004 intermediate appeals court decision. Under that ruling, the court determined that certain documents could remain secret if officials deem them part of their decision-making process.

The report isn’t exempt from disclosure because it “does not reflect conversations or deliberations among high government” and is “not a draft report, but a final one,” the plaintiff’s attorneys wrote.

Additionally, the lawsuit says the “operational vulnerabilities” exception is meant to apply to the state’s computer systems or technical networks. Even if there were information deemed confidential because of operational vulnerabilities in the report, the state was required to redact those sections and still produce the report, the lawsuit says.

“The information in the report — which contains information about Tennessee’s COVID-19 response in connection with the State’s operations as a public employer — is directly relevant to public employees and all Tennessee citizens,” Liu said in a statement. “There is no basis for Tennessee to withhold the McKinsey report from public access.”

In the past, Lee’s office has cited deliberative process to exclude certain documents when producing records requested by The Associated Press, often when it comes to communications of members of his team.

“It is important to protect conversations between the governor and his closest advisors so they can have frank conversations,” said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. “There is a reason for that, but it seems this exemption has been expanded to any advice that the governor’s administration may receive.” Early in his administration, Lee’s office also cited “executive privilege” more than a dozen times as a reason to withhold some records, though his team argued they were using the term interchangeably with deliberative process. Tennessee statutes, including the state’s open records laws, do not define executive privilege. The Tennessee Constitution does not mention it.

Lee has since faced criticism from Democratic lawmakers and public health advocates over his handling of coronavirus outbreak in Tennessee. Most recently, he’s joined legal challenges seeking to block the implementation of federal covid-19 vaccine requirements.

At the same time, he’s also faced criticism from Republicans who are unhappy the governor issued any sort of restrictions early on in the pandemic.

McKinsey’s work has been at the center of debate over the Lee administration’s no-bid contracting during the covid-19 pandemic.

McKinsey’s services have drawn scrutiny because of the state’s legal action against the firm over claims about its role in the opioid epidemic.