Expert: Megasite authority could shield information
Under rules proposed by Gov. Bill Lee’s administration, the authority overseeing the $5.6 billion Ford investment in West Tennessee could shield otherwise-open information from the public’s eye, a public records expert warns.
The legislation, carried by House Majority Leader William Lamberth, R-portland, establishes the structure and regulations for the Megasite Authority of West Tennessee.
The authority, governed by a sevenmember board appointed by state officials and leadership in the legislature, would oversee the development of Ford’s proposed electric vehicle and battery plant.
But proposed regulations could allow authority officials to keep confidential contracts, agreements, and whatever information they deem “sensitive” in nature, warned Deborah Fisher, executive director of Tennessee Coalition of Open Government.
“We think this bill creates exemptions that would obscure transparency of economic development deals, including how much money and the value of property actually granted to private companies and the details of the deals surrounding those grants and conveyances,” Fisher said during a Tuesday committee hearing.
According to the bill, the authority board meetings are all open to the public, but contracts or agreements must be kept private until “entered into or signed.”
That means the public may not be able to know what contract the board is even voting on until it is executed, Fisher said.
“It essentially would be a governing body voting on ... a secret agreement,” she said. “That flies in the face of the Open Meetings Act.”
Lang Wiseman, deputy to the governor and chief counsel, said the administration would not be opposed to language clarifying the contracts subject to a public vote are publicly accessible.
“I would think it’s implicit that the materials ... presented and being voted upon would be subject to review by the public,” he said during the Tuesday hearing.
The bill would allow the chief executive officer of the authority to keep any information confidential as long as they decide it’s “of such a sensitive nature” that disclosing it would harm the authority’s effectiveness. The CEO would need agreement from the state’s attorney general.
Fisher said that one person may have too much decision making power, and could lead to cronyism.
“I think the logic they give is that, ‘Well, if we do a deal, we don’t want our competitors or other states to know,’” she said. “But it also ... closes off access to information that taxpayers have a right to know, like, what are you doing with our money? What are the terms of this?”
Such records also must be kept confidential for five years before they can be released to the public. But if the authority has a retention schedule shorter than that, those records may not even be there after five years, Fisher said.
The deal would also allow authority officials to keep “proprietary information” secret. Fisher said when doing business with governments, private companies often argue that some public information, such as property and land values, is proprietary because releasing it could tip off their competitors.
Companies have been able to keep details of their agreement with the state quiet in the past. The Washington Post reported in 2018 Google secretly expanded across the country, including in Clarksville, as officials signed nondisclosure agreements to keep public in the dark.
Fisher said there needs to be a “bright line” between what’s considered government information and what’s considered proprietary.
“We are talking about a significant amount of government property, power, money, and taxpayers and citizens of the state deserve to know how it’s used,” Fisher said.
Wiseman said the records exemptions, as well as the five-year period, are “limited.” Anyone can petition the court to challenge the definition of “proprietary,” he said.
“It’s not just a situation where somebody can deem it to be, and it is,” Wiseman said.
He also argued the decision to keep information confidential is not squarely under one person’s authority.
“The chief executive authority answers to a board that includes appointees by (the Senate), the House, the governor, ex officio members that that CEO answers to,” Wiseman said.
When asked Monday why there is a need to block public access to information such as marketing materials and industrial studies, House Speaker Cameron Sexton, R-crossville, told reporters it is common practice at the state Department of the Economy and Community Development.
“That’s something that’s already current practice,” he said. “It’s no different than the current practice that’s been happening at the ECD right now.”
Reach Yue Stella Yu at yyu@tennessean.com. Follow her on Twitter at @bystellayu_tnsn.
“We are talking about a significant amount of government property, power, money, and taxpayers and citizens of the state deserve to know how it’s used.”
Deborah Fisher
Executive Director of Tennessee Coalition of Open Government.